Delhi HC dismisses ED plea to revoke approver status granted to Rajiv Saxena in AgustaWestland case

The Delhi High Court yesterday dismissed Enforcement Directorate's plea seeking the revocation of approver status granted to Rajiv Saxena in the AgustaWestland money laundering case. (ED vs Rajiv Saxena).The order was passed by a single Judge Bench of Justice C Hari Shankar. .Rajiv Saxena was arrested by the ED on January 31, 2019 in connection with AgustaWestland money laundering case after he was extradited from Dubai. After spending 12 days in ED custody, Saxena was remanded to judicial custody by the Court..In March last year, a Special CBI Court had allowed Saxena’s plea to turn approver/seek pardon in terms of Setion 306 CrPC, after it was vehemently supported by ED. .AgustaWestland: CBI Court allows Rajiv Saxena’s plea to turn approver.However, later that year, ED moved an application before the Special CBI Court, praying that the "tender of pardon" be revoked under Section 308 CrPC on the ground that during the investigation, Saxena failed to provide various crucial documents, which were believed to be in his possession. .It was claimed that Saxena “wilfully concealed essential information during the course of investigation” and had thus exhibited bad faith..The plea was, however, rejected by the Special CBI Court on the ground that revocation of pardon could be done only after the approver is examined as a witness in the Court. .Aggrieved by the order, ED moved the High Court..The High Court upheld that Special CBI Court's order as it stated, ."Tendering of pardon, to an accomplice, under Section 306 (1), Cr PC, and his conversion, thereby, into an approver, has, inexorably, to be succeeded by his examination, as a witness, under Section 306 (4).".The Court held that Sections 306, 307 and 308, CrPC formed a clear, cohesive and coherent scheme which was unmistakable in its progression. .The question of “revoking pardon”, before any such statement [under Section 306(4)] is recorded, cannot, therefore, arise.Delhi High Court.The Court explained that it was during the course of the statement under Section 306 (4) that the Public Prosecutor would be able to discern whether the approver was abiding by the conditions of pardon i.e. whether he was making a full and true disclosure of all facts within his knowledge. .If the approver is found to have concealed something essential or to be tendering false evidence, the Public Prosecutor would certify under Section 308 (1) and the approver would metamorphose into an accused and would be liable for further action, it was added. .Ex facie, the view adopted by the learned Special Judge, as reflected in paras 23 to 25 of the impugned order, dated 5th March, 2020, is eminently in accordance with the law laid down in the aforenoted decisions, as well as the statutory scheme of Sections 306 and 308 of the Cr PC, and does not merit any interference.Delhi High Court said. .The Court further stated that the certificate issued by the Public Prosecutor under Section 308 (1) CrPC to certify that the approver was guilty of indiscretions necessarily related to the evidence recorded during trial under Section 306 (4) and was not based on the conduct of the approver during the investigation. .As far as the present case was concerned, the Court noted that the Public Prosecutor's certificate did not allege that Saxena concealed anything essential or gave false evidence. .In fact, a holistic reading of the plea filed by ED revealed that the grievance essentially pertained to the alleged non-cooperation of Saxena during the investigation, the Court said..Rejecting the ED's apprehension that it would be compelled to lead Saxena's evidence even after having found him to be an untrustworthy witness, the Court remarked, .This apprehension, in my view, cannot be said to rest on any sound factual, or legal, basis. Factually, the apprehension is unfounded, as the learned Special Judge has not rejected the application, of the petitioner, on merits, but has dismissed it as premature, as no statement, of the respondent-approver, was recorded during trial. Liberty has been reserved, even in the impugned order, with the petitioner, to move an appropriate application, at the appropriate stage.Delhi High Court.Therefore, holding that issuance of certificate by the Public Prosecutor under Section 308 (1) CrPC for revocation of pardon had to be necessarily preceded by the recording of the statement of the approver under Section 306 (4), the Court dismissed ED's plea. .The Court, however, clarified that ED was at liberty to re-approach the Special CBI Court at the appropriate stage..ASG Aman Lekhi with Advocate Zoheb Hossain appeared for ED..Rajiv Saxena was represented by Advocates RK Handoo and Rajat Manchanda..Read the Order: