New Delhi: Congress president Sonia Gandhi and Rahul Gandhi on Thursday moved the Supreme Court seeking quashing of the criminal case and summons issued against them and five others on several grounds, including that the complaint of BJP leader Subramanian Swamy in the National Herald case was a "political move" aimed to "defame" them.
Besides Gandhis, Suman Dubey and Sam Pitroda have also approached the apex court against the 7 December 2015 High
Court order refusing to quash summons issued to them in the case.
The Congress president, in her plea, has also sought "stay of the operation of impugned order" of high court and
stay of the trial court proceedings on the complaint of Swamy as interim reliefs.
"The predominant purpose of filing the complaint was to defame the important leaders of the Congress Party as a
political move. The Complainant was acting as a political activist rather than a legitimate Complainant or a conscious citizen.
"Even in the course of arguments, references were made which were personal and unconnected with the case. It is the
major apprehension of the Petitioner that the Complaint and the forum of the court are likely to be used for political purposes...," she has said in her plea.
The UPA chairperson also assailed certain "adverse remarks" in the High Court verdict and said, "the High Court
has gone beyond the pleadings made in the Complaint to record a finding against the Petitioner, which is unwarranted by law."
"The observation made by the High Court suggests that a presumption can be drawn against the Petitioner (Gandhi) even at the complaint stage. Such adverse observations would have a negative impact on the trial.
"As it is settled law that it is the complainant who has to prove his case before the trial court on the basis of the allegations set out in the Complaint and the annexures annexed along with the Complaint, and the trial court is to proceed on the basis of the material on record unaffected by the observations made in the impugned order," the plea, filed through lawyer Devdatt Kamat, said.
The high court had on 7 December 2015 not only refused to quash the summons issued to the Congress leaders, but had
also made scathing observations.
Subsequently, the Gandhis and others had appeared before a Patiala House court on December 19 last year when they were also granted bail, with the magistrate observing that they had deep political roots and there was no apprehension that they would flee.
The petition raised questions of law and asked "whether the impugned judgment is liable to be interfered with because the single Judge has conducted fishing and roving inquiry into allegations of a general nature without examining the question as to what offences are alleged to be prima-facie made out."
Seeking reliefs, Gandhi also said she has "deep roots in the society" and has also been "President of Indian National Congress Party since 1998" and would "suffer irreparable injury if interim relief as prayed for is not granted despite the prima facie case set out herein before...".
The appeal also alleged that the ingredients of alleged offences like criminal breach of trust have not been made out.
"Whether the ingredients of criminal breach of trust ever be satisfied, in the context of the fact that donations to political parties do not amount to entrustment?
"Whether entrustment can be made out in the facts and circumstances of the case, as criminal breach of trust can
only occur when there is entrustment of property and when the person who has entrusted the property continues to have control over such property," the plea raised as legal issues.
It also raised questions about the locus of Swamy to file a criminal complaint.
"At the outset, it is respectfully submitted that the impugned Order passed by the single Judge completely militates against the well settled principles of law laid down by this court governing the exercise of jurisdiction under Section 482 CrPC.
"The High Court vide the impugned order holds that ingredients of the offences alleged are not required to be
spelt out at this stage. In para 32, the High Court holds that the actions of the Accused 'smacks of criminality'. But in the same breath holds that 'what species of criminal offence is made out is not required to be seen at this initial stage'," it said.
'Criminality' cannot be divorced from the offences prescribed under the Penal Code, it said, adding that if the
ingredients of alleged offences are not at all made out even prima facie, then there there cannot be any "criminality".
"It is submitted that the Ld Single Judge in the impugned Order has in a broad brush used words such as 'questionable', 'criminality', 'fraudulent favour', 'criminal intent' without at all specifying how the bare ingredients of the offences alleged are made out even prima facie against the Petitioner," it said.
"In its endeavour to presume a case against the Petitioner, the High Court has gone beyond the pleadings of
the Complainant to record a finding against the Petitioner, an offside completely unwarranted by law," it said.
The plea has also questioned the observations made by the high court against Congress party.
The court had said: "writing off such a huge debt by a legendary political party is indeed questionable".
Along with the Gandhis, five other accused--Suman Dubey, Moti Lal Vora, Oscar Fernandes, Sam Pitroda and Young India Ltd--had challenged the summons issued to them by a trial court on a complaint by the BJP leader against them for alleged cheating and misappropriation of funds in taking control of the now-defunct daily.
Sonia, Rahul, Vora (AICC treasurer), Fernandes (AICC ceneral secretary), Dubey and Pitroda were summoned under
sections 403 (dishonest misappropriation of property), 406 (criminal breach of trust) and 420 (cheating) read with
section 120B (criminal conspiracy) of the IPC.
The trial court had on 26 June 2014 asked them to appear before it on 7 August 2014 but the order was stayed on 6 August by the Delhi High Court which on 7 December 2015 vacated the stay by rejecting plea to quash the complaint and summons.
According to Swamy's complaint, all of them were directors of Young Indian Ltd (YI), a company that was
incorporated in 2010 and which took over the "debt" of Associated Journals Ltd (AJL), the publisher of National
Swamy had accused Sonia, Rahul and others of conspiring to cheat and misappropriate funds by just paying Rs 50 lakh by which YI obtained the right to recover Rs 90.25 crore which the AJL owed to the Congress party.