New Delhi: A Delhi court recently directed that lawyer and BJP leader Subramanian Swamy should “first examine himself as the first witness of the prosecution” in the National Herald case in which he had accused Congress leaders Sonia Gandhi and Rahul Gandhi and four others of conspiring to cheat and misappropriate funds by paying just Rs 50 lakh, through which Young Indian Pvt Ltd obtained the right to recover Rs 90.25 crore that Associate Journals Ltd owed to the Congress.

The change in the process, the magistrate said, was needed as the trial has got delayed and needed to be “put back on the right track”.

In his order, additional chief metropolitan magistrate (ACMM) Samar Vishal at Patiala House also dismissed an application filed by Swamy under Section 294 of the Code of Criminal Procedure (CrPC) for admission and denial of documents on the grounds that several of the documents submitted by him were photocopies and thus not admissible under the Indian Evidence Act. It also held that the moving of applications by Swamy for submitting documents was “not serving any purpose, but is in fact delaying the trial”.

In this case, apart from the Gandhis, other respondents include Moti Lal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda and Young India.

‘Applications for placing on record documents delaying the trial’

In his order on May 26, the ACMM stated that the way Swamy “is moving the applications under section 91 CrPC or for placing on record documents is not serving any purpose but is in fact delaying the trial”.

ACMM Vishal also noted that the trial in the case – in which all the accused were summoned by the court on June 26, 2016 – has already been delayed since the first date for leading prosecution was February 20, 2016, and since till date even the evidence has been started.

Court wants trial put back on right track, directs Swamy to first “examine himself”

In view of the delay, the magistrate said the trial needed to be “put back on the right track” and directed that Swamy should “first examine himself as the first witness of the prosecution and lay the foundation of the case”. Thereafter, the witnesses, official or otherwise, would be summoned to prove the documents by which he wants to prove the case.

Elaborating on how the case would now proceed, the court said the complainant would now have to file a consolidated list of witnesses containing their names or designation or any other relevant detail along with “the details of the documents which such witness will prove”.

It ordered that “the relevancy and admissibility of those documents shall be decided at the state of evidence or judgment as the case may”. The magistrate also stated that the process of examining the witnesses will start only after the evidence of the complainant is over. He then stated that the case was now fixed for the examination of Swamy.

In his order, the ACMM also explained how this trial was different from others.

The magistrate noted that since this was a warrant trial case, instituted not on a police report – where charge is framed first and then the evidence of prosecution starts – but on a private complaint, the complainant had to start his evidence first under Section 244 of the CrPC and only then would the issue of framing charges arise.

He also recorded that the purpose of Section 294 was “to cut short the trial and to dispense with the formal proof of genuineness of those documents, which are admitted by opposite party”. The section, he said, was “introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial”.

The magistrate said “this is a new provision having no corresponding provision in the repealed CrPC. It requires the prosecutor or the accused, as the case may be to admit or deny the genuiness of the documents sought to be relied against him at the outset in writing”. Upon such admission or indication of “no dispute as to the genuineness, the court is authorised to dispense with its formal proof thereof”.

Accused had “strongly opposed” documents submitted under Section 294

However, in this case, the documents which Swamy submitted under Section 294 on August 5, 2017, were strongly opposed by the accused persons on five grounds.

They claimed that the “application is malafide filed with the sole object of delaying the trial”; that the application had been “drafted in the most casual manner”; some documents were included in a mechanical manner without being brought on record during the course of recording pre-summoning evidence; some of the documents cannot be legally included as they were “neither the originals nor certified copies”; and that the application suffered from legal infirmities as documents were incomplete or had no connection with proceedings”.

Discussing the merits of the application, the magistrate wrote, “The documents which the complainant (Swamy) now wants to get admitted or denied are not the documents (except few) which the complainant has filed with his complaint or summoned and proved before summoning of accused persons.”

Drawing an analogy with a police report in which “after filing chargesheet and summoning of accused, the case proceeds with prosecution evidence”, the magistrate reasoned that “once the accused are summoned on the basis of certain evidence, then the prosecution will definitely have to proceed on the basis of evidence on which the prosecution has been launched”.

Therefore, he said, “in a complaint case the allegations made in the complaint and the evidence adduced to prove them including documents before summoning the accused in the foundation of the case”.

‘Photocopies inadmissible under Evidence Act’

Pointing to another lacuna in Swamy’s application, the magistrate also recorded that “undisputed the documents filed along with the application under Section 294 are all photocopies and therefore inadmissible without resorting to the aid of section 65 of the Indian Evidence Act.

The ACMM further added that the contention of the complainant that “these were documents of accused themselves as they were filed along with the Special Leave Petition filed by one of the accused in Supreme Court” does not “give a right to the complainant to get these copies mandatorily admitted or denied by the accused”.

He stated that “the purpose of Section 294 is to truncate the trial but this does not mean that the rules of evidence can be compromised with”.

As such the magistrate said that “when the documents are not admissible in evidence due to some legal bar, the accused justifies himself legally in his decision to neither admit or deny those documents”. Therefore, he held, for these reasons “the application under section 294 Cr.PC for directing accused to admit or deny the documents cannot be allowed”.

‘Applications for placing on record documents delaying the trial’

The magistrate also stated that the way Swamy “is moving the applications under Section 91 CrPC or for placing on record documents is not serving any purpose but is in fact delaying the trial”.

He also noted that the trial in the case – in which all the accused were summoned by the court on June 26, 2016 – has already been delayed since the first date set had been February 20, 2016. He therefore said that the trial needs to be “put back on the right track” and directed that Swamy would now “first examine himself”.