With the continuing money laundering investigation against Sonia Gandhi, Rahul Gandhi and senior Congress leaders related to the National Herald case, the point of contention that has held up the original complaint in the matter filed by BJP leader Subramanian Swamy is whether certain documents, including Income Tax records, can be admitted in the trial court proceedings before Dr. Swamy’s cross-examination is complete.
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In its 11th year, the trial in the case has now been stayed for over a year on a plea by Dr. Swamy, who approached the Delhi High Court last February challenging a trial court decision to not allow these documents to be admitted before his cross-examination is complete. The High Court then stayed the trial (which was at the pre-charge evidence stage) and will now hear the matter on the documents on July 11.
Since February 20, 2016, which was set as the first date for leading the prosecution evidence in the matter, the trial has moved slowly.
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Multiple petitions
Referring to multiple petitions filed by Dr. Swamy under Section 91 of the Code of Criminal Procedure (Cr.PC) since then, seeking to introduce fresh documents in the case, then Additional Chief Metropolitan Magistrate Samar Vishal had in a May 2018 order noted: this “is not serving any purpose but is in fact delaying the trial… the first date for leading prosecution evidence was 20/02/2016 and till now the evidence has not been started”.
This order had also dismissed a petition of Dr. Swamy to introduce I-T records pertaining to Mr. Gandhi and Ms. Gandhi and held that he, as a complainant, needed to be examined and cross-examined first before additional documents can be called. This triggered Dr. Swamy’s examination in the proceedings on July 21, 2018.
The rest of 2018 was spent Dr. Swamy examining himself, and arguing on an application by the accused seeking to restrain him from posting on Twitter about the case, which was ultimately denied.
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In 2019, Dr. Swamy’s cross-examination was listed on 12 dates, out of which, he was examined by the accused’s lawyers on four occasions. On five occasions, the proceedings were deferred on Dr. Swamy’s request — citing he was either at the National Executive meeting of his party, out of town, or attending Parliament. On two dates (April 27, 2019 and September 28, 2019), both parties had sought deferment and on one date, it was deferred because the Presiding Officer (the judge) was absent.
For want of documents
It was deferred again on February 1, 2020, for want of two documents — a complaint filed with Income Tax and another filed with the Ministry of Housing and Urban Affairs — related to the case. But before the cross-examination could resume, the COVID-19 pandemic struck, delaying the proceedings further.
As the case approached the next date of Dr. Swamy’s cross-examination, he filed an application under Section 244 of the Cr.PC on December 5, 2020, to summon witnesses, who could prove the documents that were in May 2018 dismissed by the trial court. The trial court cited the 2018 order to dismiss the application, following which Dr. Swamy approached the Delhi High Court with a request to stay all trial proceedings till the issue of these documents are decided.
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In 2018, when Dr. Swamy tried to introduce the said documents, including the I-T records, the court had then held that the documents were in fact photocopies and not admissible.
The court had then also dismissed Dr. Swamy’s argument that these should be admitted because they had been attached by the accused in one of the Special Leave Petitions filed by them in the Supreme Court, saying this was irrelevant “when the documents themselves are not admissible (the question of relevancy apart)...”
However, some of these documents have already become a part of the Enforcement Directorate’s (ED) money laundering probe in this matter with the agency securing them in May this year, according to court records.