1. This is a petition filed under Sections 397 and 482 Cr. P. C. as well as under Article 227 of the Constitution of India and is directed against an order made by the Additional Chief Metropolitan Magistrate, 3rd Court Esplanade, Bombay, on 24th April, 1978, directing that a letter of request might be issued to the District Court of the United States for the Western District of Washington (U. S. A,) to get the necessary documents from a bank in America.
2. The present petitioner who is a partner of M/s. Pillman Aircraft Co. is alleged to have a savings account in the Washington Mutual Savings Bank, Seattle, Washington, U. S. A., being account No. 121730. The Central Bureau of Investigation at whose instance the impugned order is made by the Magistrate is investigating into an offence under Sections 120-B, 162 and 163 of the Indian Penal Code against M/s. Pillman Aircraft Co. Bombay, and its partners. According to the investigating agency, the Pillman Aircraft Co. and its partners had entered into an agreement with the Boeing Company, Seattle, U. S. A, every year during the period 1969 to 1976 to work as their consultants in India for promoting the sale of Boeing Aircrafts in India and as per the operative agreements, the accused received compensation on percentage basis in case of some categories of air-crafts and at fixed rate in case of other categories of aircrafts in India and thus huge amounts were accumulated abroad in U. S. dollars during the period 1969 to 1976 which were kept in the foreign bank at Washington. It was stated in the application before the Magistrate that the accused had executed another set of agreements with the Boeing Company under which the Pillman ' Aircraft Company was to get a fixed annual retainer of a small amount which was brought into India through normal banking channels and the large amount of compensation which is illegally retained outside India is kept in savings account No. 121730 in the Washington Mutual Savings, Bank, Seattle, and was disbursed illegally.
3. According to the C. B. I., their investigation has shown that there is documentary evidence about the two sets of agreements and during the period 1969 to 1976 though under the agreements disclosed to the Government authorities in India the accused were to get $ 21.000/- per year as consultancy charges, under the real agreements, the accused had earned compensation of 15,00,000/- U, S. dollars against the |ale of 747 aircrafts to Air India and 73f aircrafts to Indian Airlines Corporation, out of which amount only fixed annual retainers at the rate of $ 21.000/- per year were repatriated to India during 1969 to 1976. The retention of the amount outside India which, according to the C. B. I., is in violation of the Foreign Exchange Regulations and the said amount is suspected to have been used to influence public servants in India by corrupt and illegal means for promoting the sales of Boeing aircrafts to Air India and/or Indian Airlines by foreign companies. With a view to find out the quantum of amount credited from time to time in the Washington Mutual Savings Bank in Account No. 121730 of accused Nos. 2 and 3 (petitioner is accused No. 2) and the mode of withdrawal of those funds and the procedures to withdraw those funds, the C. B. I. wanted to obtain the following documents in connection with savings Account No. 121730 from the Washington Mutual Savings Bank, Seattle:
1. The application for opening the aforesaid account in the Bank together with specimen signature cards.
2. Certified copies of statements of account in respect of account No. 121730 from its opening up-to-date.
3. Photo copies of all cheques debited and credited to this account, certified by the Bank to be correct photographs.
4. All pay-in-slips and withdrawal slips connected with the above account.
5. All correspondence connected with the above account.
4. While making an application to the Magistrate, the C. B. I. stated that the provisions of Section 91 cannot be brought into use directly because the Magistrate's Court had no jurisdiction over the area where the U. S. A. Bank is located. A request was, however, made to the Magistrate for issuing letters rogatory through the Ministry of External Affairs. Govt. of India, New Delhi, to the United States District court for the Western District of Washington, U. S. A,, for issuing directions to the Washington Mutual Savings Bank, Seattle, to make available all the above mentioned documents duly certified under an affidavit to the C. B. I. Investigating Officer in the case in India. This request was granted by the learned Magistrate by his order dated 24th April, 1978. Since the order is a short one and has been challenged as illegal, we reproduce the order which runs as follows:
Heard the prosecutor. Read the application. It is brought to my notice that some documents which are in America are absolutely necessary for the investigation of the case. Summons cannot be issued as Section 91 of Cr. P. C. will not be applicable here. The advocate for the prosecution tells me that a letter of request might be issued to the District Court of the United States for the Western District of Washington (U. S. A.) to get the necessary documents from the parties concerned. Request is reasonable. Hence the order.
Send a letter of request as prayed.
5. It is the above order which has now been challenged by the petitioner. The petition was admitted on 3rd of July 1978. At the time of admission it appears that the respondents, namely, the Union of India, the State of Maharashtra and the Central Bureau of Investigation took notice. The petition was, therefore, directed to be put up for final hearing in the week commencing from 7th of August, 1978. In the petition filed before this Court an interim order was sought by the petitioner in the form of an injunction restraining the Union of India from transmitting the letters rogatory to the District Court of U, S. A. for the Western District of Washington. The alternative interim order sought was an order of injunction restraining the respondents or their officers or agents from proceeding with the said letters rogatory and from receiving from the District Court in U. S. A. for the Western District of Washington, U, S. A. any documents requested to be produced thereby.
6. On 3rd July 1978, it appears that an undertaking was given by Mr. Govilkar appearing on behalf of all the respondents that even if the documents are received, respondents Nos. 1 and 3 will not use them. The Court while admitting the petition, therefore, observed. 'In view of this undertaking, in our opinion, further interim orders are not necessary, 'Though the petition has now been taken up for final hearing, it appears from the docket that the petition was put up for final hearing on 7th August 1978, when it was adjourned at the request of the Public Prosecutor by consent for four weeks. When it was taken up on 30th August, 1978, it was again adjourned by consent till a week commencing from 11th September, 1978, It was then adjourned to 21st September, 1978. It was further adjourned upon motion made by the Counsel to a date not before 6th October, 1978. It appears that the matter was heard on 6th December, 1978 by a Division Bench. The arguments were concluded and it was made to stand over till 18th December 1978. Thereafter it was directed not to be treated as part-heard. An affidavit was then filed by Mr. Govilkar. The petition was kept for hearing after the re-opening of the Courts after the Christmas Holidays on 18th January, 1979, but was made to stand over peremptorily till 19th January, 1979. On 19th January, 1979, it was made to stand over till 29th January, 1979. Then the matter seems to have been placed before the Bench on 30th March, 1979, It was again adjourned by consent to 4th April, 1979 and then adjourned to 9th April. It was heard partly on 9th April, 1979. Since it remained part-heard and the learned Counsel for the petitioner Mr. Desai was not available on the next working day, i, e. 11th, it was directed to be heard today. The arguments which were partly advanced by Mr. Desai were continued today by Mr. Sethna.
7. Mr. Sethana contended that on the face of the order of the Magistrate dated 24th April 1978, the order is itself illegal because even, according to the learned Magistrate, he could not invoke the provisions of Section 91 Cr. P. C. It was, therefore, argued that there was no, provision in the Cr. P. C. under which the Magistrate could have jurisdiction to direct issue of letters rogatory to the District Court in the United States. In short, the contention was that the order, which is patently illegal, was liable to be quashed by this Court in exercise of its jurisdiction under Article 227 of the Constitution. Mr. Sethana wanted us to go further into the details of the ground of illegality on which the order of the learned Magistrate was open to challenge. We have, however, declined to go into those details because we propose to decide this petition on the assumption that the order of the learned Magistrate is not supported by any provisions of the new Cr. P. C. The question, therefore, to be decided is whether this Court should interfere with the impugned order and should now set it aside on the ground that it is an illegal order.
8. Now, there can be no difficulty that in the exercise of the powers under Section 397 Cr, P. C. or in the exercise of the jurisdiction under Article 227, this Court is empowered to set aside an order which is illegally passed, more so, when an order on the face of it appears to be clearly out of jurisdiction. The question in the instant case is, however, slightly different and we cannot overlook the facts which now appear from the record The record discloses and it is not disputed that the documents in respect of which the letters rogatory were sent, were sent from Washington to India on 12th September, 1978 and after they were received by the appropriate authorities on 16th September 1973, the documents have already been handed over to the Investigating agency, namely, the C. B. I. on 19th September, 1978. Those documents have not yet been opened and are lying in a sealed cover with the C. B. I. The proceedings before the U. S. Court commenced on T 3rd August, 1978 and the U. S. Court had issued an order to Seattle Bank to produce the documents on 31st August 1978. These documents were received by the Indian Embassy, Washington, on 1st September, 1978.
9. In our view, there are several difficulties in the way of the petitioner on the facts as they appear on the record in this case. Letters rogatory were issued during the pendency of the petition and the documents are now already in India. This would not have been the case if the petition would have been in August, 1978. But none of the parties appeared keen to have it heard at that time.
10. The petition has been argued mainly on the footing that the impugned order should be quashed under Article 227 of the Constitution. Now it is not the rule that every illegal order must be set aside by this Court in the exercise of its discretionary jurisdiction under Article 227. Proceedings by way of certiorari are 'not of course' and High Court has the power to refuse the writ if there is no failure of justice. (See A. M. Allison v. B.L. Sen : (1957)ILLJ472SC .
11. The facts which appear on the record clearly indicate that the investigating agency is investigating into an offence alleged to have been committed by the petitioner by having an undeclared account in a foreign bank. The prosecution against the accused has not yet been instituted. The proceedings are still at the stage of investigation. During the course of investigation the C. B. I. wanted to collect evidence which, according to it, incriminated the petitioner. The evidence consisted of the documents referred to earlier which, according to the C. B. I, indicate not only that an account was held by the petitioner in a foreign bank, but that the moneys in this account have come to be deposited as a result of certain undisclosed agreement with regard to payment of commission, only a part of which was shown to have been brought to India.
12. Now, assuming for a moment that this order of the learned Magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency. It can hardly be disputed that if the Magistrate would have declined to issue the necessary letters rogatory, it would have been possible for the investigating agency to get the necessary documents from abroad, probably by sending its own officer abroad and taking the necessary steps. However, the position today is that the documents which are likely to be used as evidence against the petitioner are already in the possession of the investigating agency. Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law. But the value to be attached to these documents cannot in any way be affected by the manner in which the documents have been acquired.
13. In Kuruma Kaniu v. Queen 1955 AC 197, the Privy Council laid down that if the evidence is admissible, the Court is not concerned how it was obtained. The Privy Council has observed as follows:
In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so may words in any English case there are decisions which support it, and in their Lordships' opinion it is plainly right in principle.
These observations of the Privy Council were quoted with approval by the Supreme Court in Pooran Mal v. Director of Inspection (1974) SCC 345 . After quoting the above observations of the Privy Council, the Supreme Court has observed as follows:
It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevance, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.
That was a case dealing with a challenge that a search and seizure were in contravention of the provisions of Section 132 of the Income-tax Act and the Supreme Court held that even assuming that the search and seizure were in contravention of the provisions of Section 132 of the Income-tax Act, still the material seized was liable to be used subject to taw before the Income-tax Authorities against the person from whose custody it was seized and, therefore, no Writ of Prohibition in restraint of such use could be granted.
14. In an earlier decision in Magraj Patodia v. R.K. Birla : 2SCR118 , dealing with a document procured by illegal means, the Supreme Court has held that the fact that a document was procured by improper or even illegal means, will not be a bar to its admissibility if it is relevant and its genuineness proved.
15. Now, if the documents are already in the possession of the C. B. I. and if the manner in which the documents have been acquired is not relevant for the purpose of determining their probative value, in our view, any interference with the order of the learned Magistrate will become wholly academic. The documents will continue to be in possession of the investigating agency even if we were to interfere with the order dated 24th April, 1978. This Court in the exercise of its jurisdiction under Article 227 will not be able to make an order preventing the C. B. I. from using the documents in their possession as evidence. That is why though the impugned order appears to us to be patently erroneous and in excess of jurisdiction, we are not inclined to interfere with that order. The powers under Article 227 are intended to be exercised in cases of failure of justice. We do not know the contents of the documents received. Assuming that they are to be used as evidence against the petitioner, it cannot be said that that will result in injustice because the petitioner will have full opportunity to meet them in the course of the trial if he is prosecuted.
16. When it was pointed out to the learned Counsel that any decision on the merits of the order of the learned Magistrate would become academic, it was vehemently argued both by Mr. Desai on the earlier occasion, and by Mr. Sethana today that if that view was taken, the undertaking given on behalf of the Union of India and the C. B. I. would entirely become nugatory. The contention appears to be that if the undertaking would not have been given, the Court would then probably have passed an order of injunction restraining respondents Nos. 1 to 3 from taking any further steps for the purpose of securing the documents from the United States. Now, it is not possible for us to speculate what order the Division Bench admitting the petition would have made in case the undertaking would not have been given by the Counsel appearing on behalf of the Union of India and the C. B. I., but it is difficult for us to see as to how the fact that an undertaking given earlier by a party to the petition can come in the way of the Court to take the view that it will decline to interfere with the impugned order on the ground that the petition is really infructuous or that having regard to the facts, it would not exercise its discretion under Article 227 in favour of the petitioner. An interlocutory order is operative only during the pendency of the petition. It is liable to be varied at any stage at the request of any party to the petition and the order in the instant case is that no interim order will be made in view of the undertaking. Now if we read the undertaking fairly, the only effect of the undertaking appears to us to be that during the pendency of this petition the documents, even if they are received, will not be used by the C. B. I. If this undertaking was not there, it may have been possible for the C. B. I, to make such use of the documents as they thought fit. But since the petitioner has made grievance with regard to the order made by the learned Magistrate, as a result of which letters rogatory were written, the only effect of the undertaking can be that these documents will not be used by the C. B. I.
17. Now, this undertaking, in our view, has no relevance so far as the decision of the petition is concerned. We cannot overlook the fact that the documents are in fact in possession of the C. B. I. The undertaking is merely not to use the documents during the pendency of the petition. We can, therefore, still take into account the fact that the documents are with the C. B, I. today which they cannot be prevented from using because it will not be permissible to put any bar against their use by a final order in this petition. It is, therefore, now too late to interfere with any order which deals with the procedure regarding the collection of that evidence. Even though undertaking was given not to use the documents, that undertaking will stand terminated by the final order in this petition and the fact that during the pendency of the petition the undertaking was operative, will not prevent the C. B. I. from using those documents if they want to alter the rejection of this petition,
18. We tried to ascertain from the learned Counsel for the petitioner whether there was any statement in the petition made categorically by the petitioner that the account in respect of which the documents were sought was not held by the petitioner at all in foreign bank, because what was argued at one stage was that the order of the Magistrate works in an unjust manner against the petitioner. It was not, however, possible for the learned Counsel to point out to any categorical statement in the petition that there is no such account held by the petitioner in the foreign bank. In the absence of any such statement, it is not possible to assume that the C. B. I. was acting merely with a view to harass the petitioner because it was urged before us that harassment results from the manner in which the evidence has been sought against the petitioner.
19. Having regard to the facts in this case we, therefore, decline to exercise our inherent jurisdiction or revision al jurisdiction or jurisdiction under Article 227 of the Constitution of India in favour of the petitioner. The petition must, therefore, fail and is dismissed.
20. The learned Counsel for the petitioner has requested for a short stay of the order of this Court dismissing the petition. Mr. Khambata on behalf of the C. B. I. states that the documents are still at Delhi and it is not likely that they will be immediately received in Bombay. Since we have dismissed the petition the question of stay really does not arise,
21. I intend to add a few lines to what has been said above. According to - me, the petition is misconceived and without any substance. This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petitioner cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the Code of Criminal Procedure as has been done in this case. For ought we know, the evidence that is collected by the prosecuting agency may not ultimately be tendered in Court. That is yet another reason that at this stage the accused cannot be said to be an aggrieved person. Secondly, even assuming that the evidence is being collected by the prosecuting agency in an illegal manner, as stated above, the evidence itself does not become illegal on that ground. Whether the evidence should be accepted by a Court of Law or not, will depend upon whether it is relevant and admissible. That is why, even assuming that the provisions of Section 91 Cr. P. C. were not open to be invoked for getting the letter rogatory issued, the Petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters, therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds. There is, therefore, no substance in the grievance made by the petitioner that because an undertaking was given by the respondents not to use the documents pending the final hearing and disposal of this petition, it should be held that the prosecuting agency was not at all entitled to procure the documents from the United States and the procurement itself was illegal. It must be remembered in this connection that the provisions of Section 91 Cr. P. C. are only enabling. It is only when the prosecuting agency is unable to procure documents except with the help of the Court, that the prosecution is compelled to approach the Court for issuance of the necessary proceeds, for collecting the same. The prosecuting agency in this present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner. Hence, it is erroneous to argue that merely because the documents in question have come in this country pursuant to the letter rogatory issued by the learned Magistrate, the use of the same should be prevented. For all these reasons, I am of the view that the petition is devoid of any merit.