Full Judgment Text
$~7.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.02.2017
% W.P.(CRL) 2572/2016
RAHUL SARAF
..... Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Chayan Sarkar, S.K. Singhi and
Arjit Pratap Singh, Adv.
versus
UNION OF INDIA & ANR
..... Respondent
Through: Mr. Anil Soni, CGSC with
Ms.Priyanka Singh for UOI
Mr. Nikhil Goel and Mr. Ashutosh
Ghade for CBI
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner has preferred the present writ petition under Article 226
of the Constitution of India to seek the setting aside/ quashing of the request
for legal assistance dated 18.09.2015 issued by the Russian Federation to the
Union of India. The petitioner also seeks a restraint against respondent No.1
and 2 i.e. Union of India and the CBI from taking any action or steps in
pursuance of the said letter of request dated 18.09.2015. The petitioner
W.P.(CRL) 2572/2016 Page 1 of 20
seeks a direction that coercive steps be not taken against the petitioner.
Another relief sought by the petitioner is to call upon the respondent no.1 to
furnish all documents relating to Criminal Case No.385014 filed before the
Investigative Department of Major Investigations, Directorate of Russian
Federation, Moscow pursuant to the Letters Rogatory from the Govt. of
Russian Federation.
2. The background in which the present petition has been preferred is
that a Joint Venture Agreement (JVA) was executed on 29.01.2008 between
the Federal Agency for the Federal Property Management of the Russian
Federation (referred to as Rosimushchestvo), a public joint stock holding
company Technochim-holding and Saraf Agencies Pvt. Ltd., Titanium
Mineral Products Ltd. (TMPL) in relation to a titanium project to be
executed in the State of Orissa. Accordingly, a joint venture entity, namely,
Titanium Products Pvt. Ltd. (TPPL) was incorporated in the State of Orissa
on 28.03.2008.
3. It appears that disputes arose between the JV partners. According to
the petitioner, the said disputes are presently pending in International
Commercial Arbitration. The petitioner – Rahul Saraf, admittedly, was a
director of the JV Company.
4. It appears that under the “Treaty Between The Republic of India And
The Russian Federation On Mutual Legal Assistance In Criminal Matters”
dated 21.12.1998, a request for legal assistance was received from the
Russian Federation dated 18.09.2015 bearing No.201/4-107-2015. This
letter of request for legal assistance, inter alia, stated that the fourth
W.P.(CRL) 2572/2016 Page 2 of 20
investigative department of the Major Investigations Directorate of the Chief
Investigative Directorate of the Investigative Committee of the Russian
Federation for Moscow is currently investigating Criminal Case No.385014
initiated on 06.03.2015 for an offence under Article 201(1) of the Russian
Criminal Code. The same also recites the facts relating to the execution of
the JVA and the constitution of the JV company, i.e. TPPL. It alleges
breach of the JVA by the Indian party, and asserts that the failure of the
Indian party caused financial damages to the Russian Federation. This
request for legal assistance, inter alia, states:
“ In the course of TPPL’s activities, the Indian Party used
shareholders’ rights and authorities of members of the Board of
Directors contrary to the company’s legitimate interests, which
caused financial damage to the Russian Federation.
Thus, on October 15, 2008 in order to organise the Joint
Venture operation the Government of Orissa and TPPL
represented by S. Shroff signed the Memorandum of
Understanding under which the Government of Orissa and the
Joint Venture have agreed on provision of a land plot in the
State of Orissa to the Joint Venture for placing of
manufacturing facilities.
Further, in breach of the existing obligations, at the Indian
Party’s initiative, two land plots (34.095 acres in Chatrapur,
Ganjam district, State of Orissa, India) were leased not to
TPPL, but to its minority shareholder SAPL, whose
representatives were paid a fee amounting to at least
Rs.20,531,937 for facilitation of permissions and approvals by
the Indian officials and formalities related registration of the
leasehold. However, SAPL further entered into a direct lease
agreement with Odisha Industrial Infrastructure Development
Corporation (“IDCO”) for a land plot that was to be leased
directly to TPPL as per the Memorandum of Understanding
between TPPL and the Government of Orissa of October 15,
W.P.(CRL) 2572/2016 Page 3 of 20
2008.
Subsequently, SAPL, in violation and disregard of the
agreements reached and acting contrary to the Joint Venture’s
interests, suggested that TPPL should sublease the land plots
meant for placing the manufacturing facilities at a rate 12 times
higher than the one paid for the lease by the shareholder.
Due to the said actions, TPPL was never granted leasehold to
the land plots for placing of the manufacturing facilities, which
eliminated the possibility to arrange manufacturing and
resulted in the titanium dioxide and other titanium products
project implementation being frustrated, which caused an
extremely large financial damage to the Russian Federation.
Moreover, in 2011, unidentified representatives of the Indian
Party acted in violation of the TPPL’s Articles of Association
and contrary to the company’s legal interests, having received
access to its accounts, disposed of the company’s funds without
approval from TPPL’s Board of Directors. In addition, the
funds were disposed of without notifying of the Russian
Federation in such a way that benefitted the Indian Party,
particularly the Indian SRI’s mutual fund, as well as TMPL and
SAPL, namely: at an unidentified period of time the funds
contributed by the Russian Federation to TPPL’s authorised
capital were transferred to the Indian SRI’s mutual fund; on
December 22, 2009 funds amounting to Rs.288.7 million were
transferred from the TPPL’s account to that of TMPL; on
March 1, 2010 funds amounting to Rs.250 million were
transferred from the TPPL’s account to that of SAPL; and on
November 23, 2010 funds amounting to Rs.1,101.7 million were
transferred from the TPPL’s account to that of SAPL.
Also, on March 10, 2011, moneys amounting to an equivalent of
USD 20,000,000 were transferred from the TPPL’s account to
that of SAPL without approval by the company’s Board of
Directors and without notifying of the Russian Party. Further,
on March 30, 2011, part of the said funds amounting to an
equivalent to USD 15,000,000 was transferred from the SAPL’s
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account to that of Forum Projects Private Limited founded by
S.M. Shroff and managed by R. Saraf, the Indian members of
the Joint Venture’s Board of Directors.
Moreover, as per the information obtained in the course of
investigation, movement of the funds received from the Russian
Party could be carried out on the following TPPL’s accounts:
1. Central Bank of India, 4 & 4/1, Red Cross Place, Kolkata
700001, Account No.3021149752, Fixed Deposits;
2. UCO Bank, 10, BTM Sarani, Kolkata 700001, Fixed
Deposits;
3. Central Bank of India, Burrabazar Branch, 178,
Mahatma Gandhi Road, Kolkata 700007, Account
No.3020575203, Fixed Deposits;
4. State Bank of India, Industrial Finance Branch, Account
No.30368694587, 11, Constantia House, Dr U.N. Bramachari
Street, Kolkata 700017;
5. Central Bank of India, Plot 95, Unit III, Janpath,
Bhubaneswar 751001, Orissa, Account No.3020713358;
6. State Bank of India, IDCO Tower Branch, Bhoi Nagar,
Rupali Chhak, Bhubaneswar 751022, Orissa, Account
No.30376327913;
7. VTB Bank, Taj Mahal Hotel, The Lobby Mezz Floor,
No.1, Mansingh Road, New Delhi 110011, Account
No.408073560006 20000006.
In order to establish the facts of importance for investigation of
the criminal case, it became necessary to examine the TPPL
Indian shareholders S.M. Shroff and R. Saraf, and to obtain
information on account on movement of the funds on the TPPL
accounts with Indian banks.
In view of the above, relying on the Treaty between the
Republic of India and the Russian Federation on Mutual Legal
W.P.(CRL) 2572/2016 Page 5 of 20
Assistance in Criminal Matters dd. December 21, 1998, and
Art. 453 and 454 of Russian Criminal Procedure Code, ”.
5. Upon receipt of the request for legal assistance, it appears that the
Central Govt. required the CBI to act in terms of the treaty and,
consequently, the CBI issued notices under Section 160 Cr PC dated
14.07.2016 and 04.08.2016 to the petitioner. Upon receipt of the said
notices, the petitioner approached this court vide W.P. (Crl.) No. 2422/2016,
which was disposed of by this court on 22.08.2016. The grievance of the
petitioner taken note of in the order dated 22.08.2016 reads as follows:
“ The submission of Mr. Nandrajog, learned senior counsel for
the petitioner is that the petitioner is completely in the dark
with regard to the nature, purport and content of the case
initiated in Russia, which is under investigation. The petitioner
is not aware as to whether or not the petitioner is an accused in
the said proceedings. Moreover, the petitioner is also not
aware as to what bearing the investigation may have on the on-
going arbitration between SAPL and the Russian counterparts,
as noticed above.
Mr. Nandrajog submits that the Indian and Russian
Federation have entered into a treaty on mutual legal
assistance in criminal matters. He has referred to Article 13 of
the said treaty and in particular to Article 1.1, 1.2, 1.3 and 2.4
thereof, which reads as follows:
“ Part III – Procedure
Article 13
Contents of requests
1. In all cases requests for assistance shall include:
W.P.(CRL) 2572/2016 Page 6 of 20
1.1 the competent authority conducting the investigation,
criminal prosecution or proceedings to which the request
relates;
1.2 a description of the nature of the investigation, criminal
prosecution or proceedings, including a copy or summary of
the relevant facts and laws;
1.3 the purpose for which the request is made and the nature
of the assistance sought; and
1.4 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2. Requests for assistance shall also contain the following
information:
2.1 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.2 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.3 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.4 in the case of requests to take evidence from a person,
information as to whether that evidence is required to be sworn,
affirmed, or otherwise taken in conformity with the law of the
Requested Party, and a description of the subject matter of the
evidence or statement sought ... ...;”.
Mr. Nandrajog submits that the petitioner cannot be
expected to compromise his position in relation to any criminal
proceedings, and he is entitled to protection of his rights under
Article 20(4) of the Constitution of India. It is argued that
merely because the criminal proceedings have been initiated in
Russia, the petitioner cannot be worse of than he would have
been had the case been initiated in Indian Courts as, in that
situation, he would atleast know the nature of the case and the
allegations, if any, made against him as an accused, if at all ”.
6. The said petition was disposed of on the statement made on behalf of
the CBI by the learned counsel that the respondents had no objection to
W.P.(CRL) 2572/2016 Page 7 of 20
provide the gist of the case, which is contained in the background note in the
first three and half pages of the said request for legal assistance. However,
the respondent was not willing to share the interrogatories in advance with
the petitioner, on the ground that the said interrogatories would have to be
answered by the petitioner upon his personal appearance. The petitioner
agreed to receive the said background note while reserving his right to
decide his future course of action after perusing the same. Consequently,
the portion of the said letter of request for legal assistance dated 18.09.2015
was provided to the petitioner, which contains the factual matrix and the
substance of the allegations made against the petitioner.
7. After receipt of the said extract from the request for legal assistance,
the petitioner has once again approached this court to seek the aforesaid
reliefs by the present writ petition, primarily on the same premise that the
petitioner is left in the dark about the complete facts/ documents/
allegations/ accusations made against him, and he cannot be compelled to
answer questions without knowing, in entirety, the said particulars.
8. Mr. Nandrajog submits that by virtue of Section 166B Cr PC, when a
request from a court or authority in a country or place outside India is
received for examination of any person, or production of any document or
thing in relation to an offence under investigation in that country or place,
the Central Govt may, inter alia, send the letter to any police officer for
investigation, who shall thereupon investigate into the offence in the same
manner as if the offence had been committed within India. He submits that
it is under the authority derived from the said provision that the CBI has
issued notices under Section 160 Cr PC to the petitioner.
W.P.(CRL) 2572/2016 Page 8 of 20
9. Mr. Nandrajog submits that since the investigation is to be carried out
in the same manner as if it were an offence committed in India, the
petitioner is entitled to the same protection as would be available in respect
of a case/ FIR registered in India. He submits that the petitioner is
completely at sea as to whether, or not, the petitioner is an accused, and is
not even aware as to who is the complainant and on what basis the aforesaid
criminal case has been registered in the Russian Federation. He submits that
the petitioner cannot be required to answer any queries that may have
received from the Russian Federation, unless the petitioner knows whether,
or not, he is accused of a particular offence, and the role attributed to him.
10. In support of this submission, he places reliance on the judgment of
the Supreme Court in Youth Bar Association of India v. Union of India &
Anr. , (2016) 9 SCC 473, wherein the petitioner had sought the issuance of a
writ, directing the UOI and States to upload each and every FIR registered in
all police stations within the territory of India on the official website of the
police of all the States as early as possible, preferably within 24 hours of the
time of registration. While dealing with the said petition, the Supreme Court
had issued directions which are contained in para 11 of the judgment. Mr.
Nandrajog has specifically refers to directions contained in para 11.1, 11.2
and 11.4, which reads as follows:
“ 11.1 An accused is entitled to get a copy of the First
Information Report at an earlier stage than as prescribed under
Section 207 of the Cr.P.C.
11.2 An accused who has reasons to suspect that he has been
roped in a criminal case and his name may be finding place in
a First Information Report can submit an application through
W.P.(CRL) 2572/2016 Page 9 of 20
his representative/agent/parokar for grant of a certified copy
before the concerned police officer or to the Superintendent of
Police on payment of such fee which is payable for obtaining
such a copy from the Court. On such application being made,
the copy shall be supplied within twenty-four hours.
11.4 The copies of the FIRs, unless the offence is sensitive in
nature, like sexual offences, offences pertaining to insurgency,
terrorism and of that category, 6 offences under POCSO Act
and such other offences, should be uploaded on the police
website, and if there is no such website, on the official website
of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused
or any person connected with the same can download the FIR
and file appropriate application before the Court as per law for
redressal of his grievances. It may be clarified here that in case
there is connectivity problems due to geographical location or
there is some other unavoidable difficulty, the time can be
extended up to forty-eight hours. The said 48 hours can be
extended maximum up to 72 hours and it is only relatable to
connectivity problems due to geographical location ” .
11. Mr. Nandrajog submits that if the FIRs were to be registered in India,
the petitioner would be entitled to the aforesaid protections. The petitioner
cannot be compelled – merely because a criminal case is registered in the
Russian Federation, and in purported compliance of the obligation under the
aforesaid treaty the CBI is required to carry out the investigation, answer the
queries raised by the Russian Federation, in breach of the constitutional
protections to which the petitioner is entitled as an accused in India. He
submits that under Article 3.1 of the treaty, the UOI may refuse the
assistance sought by the Russian Federation, if, in the opinion of the
requested party i.e. the Central Govt, the execution of the request would
impair its sovereignty, security, public order “ or any other essential public
W.P.(CRL) 2572/2016 Page 10 of 20
interest ”. Mr. Nandrajog submits that the aforesaid expression is wide
enough to encompass the aspect of violation of the fundamental rights of the
petitioner. He submits that the UOI should have refused assistance in the
present case on the ground that, unless the complete documentation in
relation to the said criminal case is placed before it, the request cannot be
entertained as it would breach the petitioner’s fundamental rights as an
accused.
12. Mr. Nandrajog further submits that under Article 13 of the treaty,
clause (1.2) and (1.3) provides that in all cases request for assistance shall
include a description of the nature of the investigation, criminal prosecution
or proceedings, including a copy or summary of the relevant facts and laws,
as well as the purpose for which the request is made and the nature of the
assistance sought. He submits that the said requirements of the treaty are
not met by the Letter of Request for legal assistance presently sent by the
Russian Federation. He further submits that under clause (3) of Article 13, it
was open to the Central Govt to take a stand that the information contained
in the request is not sufficient to enable the request to be dealt with, and seek
additional information from the Russian Federation. However, the Central
Govt, without application of mind, required the CBI to proceed to entertain
the request in the present case.
13. During pendency of this petition, the petitioner also moved an
application – being Crl.M.A. No. 17132/2016, to seek stay of operation of
the notices Nos.8624 and 8625 dated 06.10.2016 issued by the CBI,
requiring the petitioner to submit information and documents and appear
before it on 17.11.2016. This application was, however, withdrawn by the
W.P.(CRL) 2572/2016 Page 11 of 20
petitioner. It was made clear by this court that if any questions were put to
the petitioner, incriminating him, it would be open to the petitioner to defend
his rights as available in law. It was further ordered that in case the
petitioner appears, it shall be open to him take his counsel along with him.
It is informed that the petitioner has thereafter appeared on three occasions.
14. On the other hand, the submission of Mr. Goel, learned counsel for
the respondent/ CBI is that the respondent is merely fulfilling its obligations
under the treaty. Learned counsel for the respondent submits that reliance
placed on the judgment in Youth Bar Association of India (supra) is
misplaced inasmuch, as, that was a case where the only aspect considered by
the Supreme Court was in relation to uploading of the FIRs on the websites
of the Union and States in a time bound manner, and the same related to
cases/ FIR registered within the territory of India. In the present case, the
criminal case has been registered in the Russian Federation and the letter of
request received by the respondent, by itself, contains the sufficient
disclosures which indicate that the petitioner is an accused in the said case.
15. Pertinently, during the pendency of this petition, the respondents have
also received another set of documents from the Russian Federation called
“Note Verbale” No.175 dated 08.02.2016. The complete document has been
placed on record, and also provided to the petitioners.
16. Mr. Goel submits that even if the petitioner had any outstanding
grievance, on account of the information contained in the letter of request
for legal assistance allegedly not being complete, the same cannot survive
upon receipt of the said Note Verbale. He points out that the said Note
W.P.(CRL) 2572/2016 Page 12 of 20
Verbale not only contains the Indictment Order dated 06.06.2016, but also
the specific queries that the petitioner is expected to answer. Mr. Goel
further submits that the CBI is not interested in personally interrogating the
petitioner, and the CBI would be satisfied if the queries – which have
already been provided to the petitioner along with Note Verbale, are
answered by him in writing and the answers provided to the CBI for onward
transmission to the Russian Federation.
17. Having heard learned senior counsel for the petitioner and learned
counsel for the respondent, I am of the view that no grievance of the
petitioner survives - even if one existed at the time when the petition was
preferred, in view of the communication of the Note Verbale to the
petitioner which contains not only the Indictment Order, but also set of
queries that the petitioner is expected to answer.
18. A perusal of the indictment order clearly discloses that the petitioner
is an accused in the said Criminal Case no.385014 pending in the Russian
Federation. The indictment order, in its relevant part, reads as follows:
“ On June 12, 2008 as instructed by the Russian Ministry of
Finance, the State Corporation “Bank for Development and
Foreign Economic Affairs” (hereinafter –
“Vnesheconombank”) transferred to 50% of the Russian share,
i.e. Rs.2,500,000,000 (two billion five hundred million), which
is about USD 58 000 000 (fifty-eight million) as the first
payment to the TPPL’s current account.
Unlike the Russian Federation, the Indian shareholders (these
companies are controlled by Indian nationals S.M. Shroff and
his son R. Saraf), invested only an amount equivalent to USD
33,333 in the joint venture, accounting for about 1-2% of the
W.P.(CRL) 2572/2016 Page 13 of 20
amount they were required to contribute to the share capital.
Thus, the Indian Party failed to fulfil the necessary conditions
for obtaining of a share certificate. According to available
data, the companies were lacking any funds.
Thus, on October 15, 2008 in order to organise the Joint
Venture operation, the Government of Orissa and TPPL
represented by S.M. Shroff signed the Memorandum of
Understanding under which the Government of Orissa and the
Joint Venture agreed on provision of a land plot in the State of
Orissa to the Joint Venture for placing of manufacturing
facilities.
Further, in breach of the existing obligations, at the initiative of
the Indian Party represented by S.M. Shroff and R. Saraf, who
were acting by fraud, two land plots (34.095 acres in
Chatrapur, Ganjam district, State of Orissa, India) were leased
not to TPPL, but to its minority shareholder SAPL.
Subsequently, SAPL, in violation and disregard of the
agreements reached, and in breach of the Joint Venture’s
interests, suggested that TPPL should sublease the land plots
meant for placing the manufacturing facilities at a rate 12 times
higher than the one paid for the lease by the shareholder.
Due to the said actions, TPPL was never granted leasehold to
the land plots for placing of the manufacturing facilities, which
eliminated the possibility to arrange manufacturing and
resulted in the titanium dioxide and other titanium products
project implementation being frustrated, which caused an
extremely large financial damage to the Russian Federation.
Moreover, in 2009 to 2011, S.M. Shroff and R. Saraf acted in
violation of the TPPL’s Articles of Association and in breach of
the company’s legal interests, having received access to its
accounts, disposed of the company’s fund without approval
from TPPL’s Board of Directors. In addition, the funds were
disposed of without notification to the Russian Federation in
such a way that benefitted the Indian Party, particularly, SAPL.
W.P.(CRL) 2572/2016 Page 14 of 20
In 2009-2010, under unspecified circumstances, based on
documents forged by the accomplices, with no coordination
with the Board of Directors and without notifying of the
Russian Party, S.M. Shroff, R. Saraf and their unidentified
accomplices organised transfer of funds from the account of
TPPL.
Moreover, on December 22, 2009, the amount equivalent to
RUB 271378000000 (Rs.288,700,000) was transferred from the
account of TPPL to the account of TMPL. Thereafter, on
March 1, 2010 the amount of funds equivalent to RUB
235,000,000 (Rs.250,000,000) was transferred to the account of
SAPL. Then, on November 23, 2010, the amount equivalent to
RUB 1,035,598,000,000 (Rs.1,101,700,000) was transferred
from the account of TPPL to the account of SAPL for the
purpose of concealment of the funds and illegal personal
mercenary enrichment; the said funds were subsequently
transferred to the accounts of the companies under control of
S.M. Shroff, R. Saraf and their unidentified accomplices.
By doing so, S.M. Shroff, R. Saraf and their unidentified
accomplices, specified “expense recovery for development of
the project and return of the money for the shares used” as the
purpose of the transfer made, thereby misleading bank clerks as
to the true criminal intents.
Thus, under unspecified circumstances, in unspecified time, but
no later than on March 10, 2011 the amount equivalent to USD
20,000,000 (twenty million), which amounts to RUB
644,010,000 (six hundred forty four million ten thousand) at the
Central Bank of Russia’s exchange rate on the relevant date,
was transferred from the account of TPPL, with no
coordination with the Board of Directors and without notifying
of the Russian Party, based on documents forged by
accomplices, to the account of SAPL controlled by S.M. Shroff,
R. Saraf and further, on March 30, 2011 the part of the
specified money in the amount equivalent to USD 15,000,000
(fifteen million), which makes at least RUB 448,465,500 (four
hundred forty eight million four hundred six) at the Central
W.P.(CRL) 2572/2016 Page 15 of 20
Bank Russia’s exchange rate, was transferred from the account
of SAPL to the account of Forum projects, a company founded
by S.M. Shroff and managed by R. Saraf, members of Joint
Venture’s Board of Directors on behalf of the Indian party.
Thus, Sanvar Mull Saraf, in 2009-2010, acting jointly and in
coordination with Rahul Saraf and other unspecified persons,
by false pretenses, committed a fraud that is misappropriation
of funds belonging to the Russian Federation on behalf of
Federal Agency for State Property Management in especially
large size that is committed an offence under Art. 159(4) of the
Russian Criminal Code.
Based on the above and in reliance on Art. 171, 172 the
Russian Criminal Procedural Code,
ORDERED TO:
Name Sanwar Mull Shroff born on January 12, 1935 in
residents Kolkata, as a defendant in the criminal case and
charge him with an offence under Art. 159(4) of the Russian
Criminal Code, which he shall be made aware of ”.
19. Since the CBI is satisfied with the receipt of a written reply to the said
queries by the petitioner and does not require the petitioner, for his personal
interrogation, the apprehensions expressed by the petitioner, and his
grievance with regard to protection of his rights as an accused do not
survive. The petitioner is now well aware of the fact that he is an accused in
the said criminal case pending in the Russian Federation, and he is also
clearly aware of the specific allegations made against him in the said case.
It is upto the petitioner to answer the queries in the manner he considers
appropriate. Even under the treaty obligation, the requesting party is not
required to provide the entire case material to the other party i.e. the Indian
State in the present case. Article 13 of the treaty is relevant and the same
W.P.(CRL) 2572/2016 Page 16 of 20
reads as follows:
“ Article 13
Contents of requests
1. In all cases requests for assistance shall include:
1.1. the competent authority conducting the
investigation, criminal prosecution or
proceedings to which the request relates;
1.2. a description of the nature of the investigation,
criminal prosecution or proceedings, including a
copy or summary of the relevant facts and ' laws;
1.3. the purpose for which the request is made and the
nature of the assistance sought; and
1.4. any time limit within which compliance with the
request is desired.
2. Requests for assistance shall also contain the following
information:
2.1. where possible, the identity, nationality and
location of the person or persons who are the
subject of the investigation or proceedings;
2.2. where necessary, details of any particular
procedure or requirement that the Requesting
Party wishes to be followed and the reasons
therefor;
2.3. in the case of requests for the taking of evidence or
search and seizure, a statement indicating the
basis for belief that evidence may be found in the
jurisdiction of the Requested Party;
2.4. in the case of requests to take evidence from a
person, information as to whether that evidence is
W.P.(CRL) 2572/2016 Page 17 of 20
required to be sworn, affirmed, or otherwise taken
in conformity with the law of the Requested Party,
and a description of the subject matter of the
evidence or statement sought; .
2.5. in the case of lending of exhibits, the person or
class of persons who will have custody of the
exhibit, the place to which the exhibit is to be
removed, any tests to be conducted and the date by
which the exhibit will be returned;
2.6. in the case of making persons in custody available,
the person or class of persons who will have
custody during the transfer, the place to which the
person in custody is to be transferred and the date
of that person's return;
2.7. the need, if any, for confidentiality and the reasons
therefor;
2.8. any other information that might be useful in order
to execute the request.
3. If the Requested Party considers that the information
contained in the request is not sufficient to enable the request to
be dealt with, that Party may request that additional details be
furnished.
4. A request shall be made in writing. In urgent
circumstances or where otherwise permitted by the Requested
Party, a request may be made by facsimile or other agreed
means of electronic communication but shall be confirmed in
original written form promptly thereafter.” (emphasis
supplied)
20. Thus, it is only a description of the nature of the investigation,
criminal prosecution or proceedings, including a copy or summary of the
relevant facts and laws, which are required to be provided by the requesting
State. Pertinently, the stage in the said criminal case is still the stage of
W.P.(CRL) 2572/2016 Page 18 of 20
“investigation”. The Russian Federation has desired legal assistance for the
purpose of investigation. Even in the Indian context, the petitioner cannot
demand any document/evidence from the investigating agency as a matter of
right. (See Maria Monica Susairaj V. The State of Maharashtra through
CID, Unit-VIII , MANU/MH/0994/2008). The petitioner is not required to
depose on solemn affirmation. There is no “trial” underway yet. Though
the petitioner claims that he is prejudiced on account of the complete case
papers not being made available, he has not particularised either the
information/ documents that he needs to be able to answer the queries, or the
manner in which he will suffer any prejudice. A bald assertion made by the
petitioner in this regard would not suffice.
21. The decision in Youth Bar Association of India (supra) relied upon
by the petitioner, in my view, does not come to the aid of the petitioner. As
noticed herein above, the said decision has been rendered by the Supreme
Court in the context of cases/ FIR which are registered in the Indian
territory. In the present case, the criminal case has been registered not in the
Indian territory, but in the Russian Federation.
22. The queries raised by the petitioner with regard to the identity of the
complainant, and also whether the allegations contained in the indictment
order are complete by themselves, cannot be expected to be answered by the
respondents. In my view, the said queries, in any event, appear to be
irrelevant at this stage, and even if the petitioner considers the same to be
relevant, it is open to the petitioner to structure his response to the queries
raised appropriately. The petitioner cannot use the process undertaken by
the respondents in pursuance of the aforesaid treaty as an opportunity to start
W.P.(CRL) 2572/2016 Page 19 of 20
a reverse process of interrogating the respondents on aspects which do not
concern them. The respondents cannot also be required to give any
assurance to the petitioners, as to whether the allegations found in the
indictment order are complete in themselves, or not.
23. For all the aforesaid reasons, I find no merit in this petition.
Dismissed.
24. At this stage, Mr. Goel submits that in case the petitioner were not to
answer the queries communicated to him along with the Note Verbale within
two weeks, the respondents shall be compelled to take other steps in
accordance with law. In case the petitioner chooses to answer the queries,
the petitioner shall also fill in the form contained at internal page 96 of the
Note Verbale, which is a part of the indictment order.
25. Dasti.
VIPIN SANGHI, J
FEBRUARY 17, 2017
sr
W.P.(CRL) 2572/2016 Page 20 of 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.02.2017
% W.P.(CRL) 2572/2016
RAHUL SARAF
..... Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Chayan Sarkar, S.K. Singhi and
Arjit Pratap Singh, Adv.
versus
UNION OF INDIA & ANR
..... Respondent
Through: Mr. Anil Soni, CGSC with
Ms.Priyanka Singh for UOI
Mr. Nikhil Goel and Mr. Ashutosh
Ghade for CBI
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The petitioner has preferred the present writ petition under Article 226
of the Constitution of India to seek the setting aside/ quashing of the request
for legal assistance dated 18.09.2015 issued by the Russian Federation to the
Union of India. The petitioner also seeks a restraint against respondent No.1
and 2 i.e. Union of India and the CBI from taking any action or steps in
pursuance of the said letter of request dated 18.09.2015. The petitioner
W.P.(CRL) 2572/2016 Page 1 of 20
seeks a direction that coercive steps be not taken against the petitioner.
Another relief sought by the petitioner is to call upon the respondent no.1 to
furnish all documents relating to Criminal Case No.385014 filed before the
Investigative Department of Major Investigations, Directorate of Russian
Federation, Moscow pursuant to the Letters Rogatory from the Govt. of
Russian Federation.
2. The background in which the present petition has been preferred is
that a Joint Venture Agreement (JVA) was executed on 29.01.2008 between
the Federal Agency for the Federal Property Management of the Russian
Federation (referred to as Rosimushchestvo), a public joint stock holding
company Technochim-holding and Saraf Agencies Pvt. Ltd., Titanium
Mineral Products Ltd. (TMPL) in relation to a titanium project to be
executed in the State of Orissa. Accordingly, a joint venture entity, namely,
Titanium Products Pvt. Ltd. (TPPL) was incorporated in the State of Orissa
on 28.03.2008.
3. It appears that disputes arose between the JV partners. According to
the petitioner, the said disputes are presently pending in International
Commercial Arbitration. The petitioner – Rahul Saraf, admittedly, was a
director of the JV Company.
4. It appears that under the “Treaty Between The Republic of India And
The Russian Federation On Mutual Legal Assistance In Criminal Matters”
dated 21.12.1998, a request for legal assistance was received from the
Russian Federation dated 18.09.2015 bearing No.201/4-107-2015. This
letter of request for legal assistance, inter alia, stated that the fourth
W.P.(CRL) 2572/2016 Page 2 of 20
investigative department of the Major Investigations Directorate of the Chief
Investigative Directorate of the Investigative Committee of the Russian
Federation for Moscow is currently investigating Criminal Case No.385014
initiated on 06.03.2015 for an offence under Article 201(1) of the Russian
Criminal Code. The same also recites the facts relating to the execution of
the JVA and the constitution of the JV company, i.e. TPPL. It alleges
breach of the JVA by the Indian party, and asserts that the failure of the
Indian party caused financial damages to the Russian Federation. This
request for legal assistance, inter alia, states:
“ In the course of TPPL’s activities, the Indian Party used
shareholders’ rights and authorities of members of the Board of
Directors contrary to the company’s legitimate interests, which
caused financial damage to the Russian Federation.
Thus, on October 15, 2008 in order to organise the Joint
Venture operation the Government of Orissa and TPPL
represented by S. Shroff signed the Memorandum of
Understanding under which the Government of Orissa and the
Joint Venture have agreed on provision of a land plot in the
State of Orissa to the Joint Venture for placing of
manufacturing facilities.
Further, in breach of the existing obligations, at the Indian
Party’s initiative, two land plots (34.095 acres in Chatrapur,
Ganjam district, State of Orissa, India) were leased not to
TPPL, but to its minority shareholder SAPL, whose
representatives were paid a fee amounting to at least
Rs.20,531,937 for facilitation of permissions and approvals by
the Indian officials and formalities related registration of the
leasehold. However, SAPL further entered into a direct lease
agreement with Odisha Industrial Infrastructure Development
Corporation (“IDCO”) for a land plot that was to be leased
directly to TPPL as per the Memorandum of Understanding
between TPPL and the Government of Orissa of October 15,
W.P.(CRL) 2572/2016 Page 3 of 20
2008.
Subsequently, SAPL, in violation and disregard of the
agreements reached and acting contrary to the Joint Venture’s
interests, suggested that TPPL should sublease the land plots
meant for placing the manufacturing facilities at a rate 12 times
higher than the one paid for the lease by the shareholder.
Due to the said actions, TPPL was never granted leasehold to
the land plots for placing of the manufacturing facilities, which
eliminated the possibility to arrange manufacturing and
resulted in the titanium dioxide and other titanium products
project implementation being frustrated, which caused an
extremely large financial damage to the Russian Federation.
Moreover, in 2011, unidentified representatives of the Indian
Party acted in violation of the TPPL’s Articles of Association
and contrary to the company’s legal interests, having received
access to its accounts, disposed of the company’s funds without
approval from TPPL’s Board of Directors. In addition, the
funds were disposed of without notifying of the Russian
Federation in such a way that benefitted the Indian Party,
particularly the Indian SRI’s mutual fund, as well as TMPL and
SAPL, namely: at an unidentified period of time the funds
contributed by the Russian Federation to TPPL’s authorised
capital were transferred to the Indian SRI’s mutual fund; on
December 22, 2009 funds amounting to Rs.288.7 million were
transferred from the TPPL’s account to that of TMPL; on
March 1, 2010 funds amounting to Rs.250 million were
transferred from the TPPL’s account to that of SAPL; and on
November 23, 2010 funds amounting to Rs.1,101.7 million were
transferred from the TPPL’s account to that of SAPL.
Also, on March 10, 2011, moneys amounting to an equivalent of
USD 20,000,000 were transferred from the TPPL’s account to
that of SAPL without approval by the company’s Board of
Directors and without notifying of the Russian Party. Further,
on March 30, 2011, part of the said funds amounting to an
equivalent to USD 15,000,000 was transferred from the SAPL’s
W.P.(CRL) 2572/2016 Page 4 of 20
account to that of Forum Projects Private Limited founded by
S.M. Shroff and managed by R. Saraf, the Indian members of
the Joint Venture’s Board of Directors.
Moreover, as per the information obtained in the course of
investigation, movement of the funds received from the Russian
Party could be carried out on the following TPPL’s accounts:
1. Central Bank of India, 4 & 4/1, Red Cross Place, Kolkata
700001, Account No.3021149752, Fixed Deposits;
2. UCO Bank, 10, BTM Sarani, Kolkata 700001, Fixed
Deposits;
3. Central Bank of India, Burrabazar Branch, 178,
Mahatma Gandhi Road, Kolkata 700007, Account
No.3020575203, Fixed Deposits;
4. State Bank of India, Industrial Finance Branch, Account
No.30368694587, 11, Constantia House, Dr U.N. Bramachari
Street, Kolkata 700017;
5. Central Bank of India, Plot 95, Unit III, Janpath,
Bhubaneswar 751001, Orissa, Account No.3020713358;
6. State Bank of India, IDCO Tower Branch, Bhoi Nagar,
Rupali Chhak, Bhubaneswar 751022, Orissa, Account
No.30376327913;
7. VTB Bank, Taj Mahal Hotel, The Lobby Mezz Floor,
No.1, Mansingh Road, New Delhi 110011, Account
No.408073560006 20000006.
In order to establish the facts of importance for investigation of
the criminal case, it became necessary to examine the TPPL
Indian shareholders S.M. Shroff and R. Saraf, and to obtain
information on account on movement of the funds on the TPPL
accounts with Indian banks.
In view of the above, relying on the Treaty between the
Republic of India and the Russian Federation on Mutual Legal
W.P.(CRL) 2572/2016 Page 5 of 20
Assistance in Criminal Matters dd. December 21, 1998, and
Art. 453 and 454 of Russian Criminal Procedure Code, ”.
5. Upon receipt of the request for legal assistance, it appears that the
Central Govt. required the CBI to act in terms of the treaty and,
consequently, the CBI issued notices under Section 160 Cr PC dated
14.07.2016 and 04.08.2016 to the petitioner. Upon receipt of the said
notices, the petitioner approached this court vide W.P. (Crl.) No. 2422/2016,
which was disposed of by this court on 22.08.2016. The grievance of the
petitioner taken note of in the order dated 22.08.2016 reads as follows:
“ The submission of Mr. Nandrajog, learned senior counsel for
the petitioner is that the petitioner is completely in the dark
with regard to the nature, purport and content of the case
initiated in Russia, which is under investigation. The petitioner
is not aware as to whether or not the petitioner is an accused in
the said proceedings. Moreover, the petitioner is also not
aware as to what bearing the investigation may have on the on-
going arbitration between SAPL and the Russian counterparts,
as noticed above.
Mr. Nandrajog submits that the Indian and Russian
Federation have entered into a treaty on mutual legal
assistance in criminal matters. He has referred to Article 13 of
the said treaty and in particular to Article 1.1, 1.2, 1.3 and 2.4
thereof, which reads as follows:
“ Part III – Procedure
Article 13
Contents of requests
1. In all cases requests for assistance shall include:
W.P.(CRL) 2572/2016 Page 6 of 20
1.1 the competent authority conducting the investigation,
criminal prosecution or proceedings to which the request
relates;
1.2 a description of the nature of the investigation, criminal
prosecution or proceedings, including a copy or summary of
the relevant facts and laws;
1.3 the purpose for which the request is made and the nature
of the assistance sought; and
1.4 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2. Requests for assistance shall also contain the following
information:
2.1 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.2 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.3 xxx xxx xxx xxx xxx xxx xxx xxx xxx
2.4 in the case of requests to take evidence from a person,
information as to whether that evidence is required to be sworn,
affirmed, or otherwise taken in conformity with the law of the
Requested Party, and a description of the subject matter of the
evidence or statement sought ... ...;”.
Mr. Nandrajog submits that the petitioner cannot be
expected to compromise his position in relation to any criminal
proceedings, and he is entitled to protection of his rights under
Article 20(4) of the Constitution of India. It is argued that
merely because the criminal proceedings have been initiated in
Russia, the petitioner cannot be worse of than he would have
been had the case been initiated in Indian Courts as, in that
situation, he would atleast know the nature of the case and the
allegations, if any, made against him as an accused, if at all ”.
6. The said petition was disposed of on the statement made on behalf of
the CBI by the learned counsel that the respondents had no objection to
W.P.(CRL) 2572/2016 Page 7 of 20
provide the gist of the case, which is contained in the background note in the
first three and half pages of the said request for legal assistance. However,
the respondent was not willing to share the interrogatories in advance with
the petitioner, on the ground that the said interrogatories would have to be
answered by the petitioner upon his personal appearance. The petitioner
agreed to receive the said background note while reserving his right to
decide his future course of action after perusing the same. Consequently,
the portion of the said letter of request for legal assistance dated 18.09.2015
was provided to the petitioner, which contains the factual matrix and the
substance of the allegations made against the petitioner.
7. After receipt of the said extract from the request for legal assistance,
the petitioner has once again approached this court to seek the aforesaid
reliefs by the present writ petition, primarily on the same premise that the
petitioner is left in the dark about the complete facts/ documents/
allegations/ accusations made against him, and he cannot be compelled to
answer questions without knowing, in entirety, the said particulars.
8. Mr. Nandrajog submits that by virtue of Section 166B Cr PC, when a
request from a court or authority in a country or place outside India is
received for examination of any person, or production of any document or
thing in relation to an offence under investigation in that country or place,
the Central Govt may, inter alia, send the letter to any police officer for
investigation, who shall thereupon investigate into the offence in the same
manner as if the offence had been committed within India. He submits that
it is under the authority derived from the said provision that the CBI has
issued notices under Section 160 Cr PC to the petitioner.
W.P.(CRL) 2572/2016 Page 8 of 20
9. Mr. Nandrajog submits that since the investigation is to be carried out
in the same manner as if it were an offence committed in India, the
petitioner is entitled to the same protection as would be available in respect
of a case/ FIR registered in India. He submits that the petitioner is
completely at sea as to whether, or not, the petitioner is an accused, and is
not even aware as to who is the complainant and on what basis the aforesaid
criminal case has been registered in the Russian Federation. He submits that
the petitioner cannot be required to answer any queries that may have
received from the Russian Federation, unless the petitioner knows whether,
or not, he is accused of a particular offence, and the role attributed to him.
10. In support of this submission, he places reliance on the judgment of
the Supreme Court in Youth Bar Association of India v. Union of India &
Anr. , (2016) 9 SCC 473, wherein the petitioner had sought the issuance of a
writ, directing the UOI and States to upload each and every FIR registered in
all police stations within the territory of India on the official website of the
police of all the States as early as possible, preferably within 24 hours of the
time of registration. While dealing with the said petition, the Supreme Court
had issued directions which are contained in para 11 of the judgment. Mr.
Nandrajog has specifically refers to directions contained in para 11.1, 11.2
and 11.4, which reads as follows:
“ 11.1 An accused is entitled to get a copy of the First
Information Report at an earlier stage than as prescribed under
Section 207 of the Cr.P.C.
11.2 An accused who has reasons to suspect that he has been
roped in a criminal case and his name may be finding place in
a First Information Report can submit an application through
W.P.(CRL) 2572/2016 Page 9 of 20
his representative/agent/parokar for grant of a certified copy
before the concerned police officer or to the Superintendent of
Police on payment of such fee which is payable for obtaining
such a copy from the Court. On such application being made,
the copy shall be supplied within twenty-four hours.
11.4 The copies of the FIRs, unless the offence is sensitive in
nature, like sexual offences, offences pertaining to insurgency,
terrorism and of that category, 6 offences under POCSO Act
and such other offences, should be uploaded on the police
website, and if there is no such website, on the official website
of the State Government, within twenty-four hours of the
registration of the First Information Report so that the accused
or any person connected with the same can download the FIR
and file appropriate application before the Court as per law for
redressal of his grievances. It may be clarified here that in case
there is connectivity problems due to geographical location or
there is some other unavoidable difficulty, the time can be
extended up to forty-eight hours. The said 48 hours can be
extended maximum up to 72 hours and it is only relatable to
connectivity problems due to geographical location ” .
11. Mr. Nandrajog submits that if the FIRs were to be registered in India,
the petitioner would be entitled to the aforesaid protections. The petitioner
cannot be compelled – merely because a criminal case is registered in the
Russian Federation, and in purported compliance of the obligation under the
aforesaid treaty the CBI is required to carry out the investigation, answer the
queries raised by the Russian Federation, in breach of the constitutional
protections to which the petitioner is entitled as an accused in India. He
submits that under Article 3.1 of the treaty, the UOI may refuse the
assistance sought by the Russian Federation, if, in the opinion of the
requested party i.e. the Central Govt, the execution of the request would
impair its sovereignty, security, public order “ or any other essential public
W.P.(CRL) 2572/2016 Page 10 of 20
interest ”. Mr. Nandrajog submits that the aforesaid expression is wide
enough to encompass the aspect of violation of the fundamental rights of the
petitioner. He submits that the UOI should have refused assistance in the
present case on the ground that, unless the complete documentation in
relation to the said criminal case is placed before it, the request cannot be
entertained as it would breach the petitioner’s fundamental rights as an
accused.
12. Mr. Nandrajog further submits that under Article 13 of the treaty,
clause (1.2) and (1.3) provides that in all cases request for assistance shall
include a description of the nature of the investigation, criminal prosecution
or proceedings, including a copy or summary of the relevant facts and laws,
as well as the purpose for which the request is made and the nature of the
assistance sought. He submits that the said requirements of the treaty are
not met by the Letter of Request for legal assistance presently sent by the
Russian Federation. He further submits that under clause (3) of Article 13, it
was open to the Central Govt to take a stand that the information contained
in the request is not sufficient to enable the request to be dealt with, and seek
additional information from the Russian Federation. However, the Central
Govt, without application of mind, required the CBI to proceed to entertain
the request in the present case.
13. During pendency of this petition, the petitioner also moved an
application – being Crl.M.A. No. 17132/2016, to seek stay of operation of
the notices Nos.8624 and 8625 dated 06.10.2016 issued by the CBI,
requiring the petitioner to submit information and documents and appear
before it on 17.11.2016. This application was, however, withdrawn by the
W.P.(CRL) 2572/2016 Page 11 of 20
petitioner. It was made clear by this court that if any questions were put to
the petitioner, incriminating him, it would be open to the petitioner to defend
his rights as available in law. It was further ordered that in case the
petitioner appears, it shall be open to him take his counsel along with him.
It is informed that the petitioner has thereafter appeared on three occasions.
14. On the other hand, the submission of Mr. Goel, learned counsel for
the respondent/ CBI is that the respondent is merely fulfilling its obligations
under the treaty. Learned counsel for the respondent submits that reliance
placed on the judgment in Youth Bar Association of India (supra) is
misplaced inasmuch, as, that was a case where the only aspect considered by
the Supreme Court was in relation to uploading of the FIRs on the websites
of the Union and States in a time bound manner, and the same related to
cases/ FIR registered within the territory of India. In the present case, the
criminal case has been registered in the Russian Federation and the letter of
request received by the respondent, by itself, contains the sufficient
disclosures which indicate that the petitioner is an accused in the said case.
15. Pertinently, during the pendency of this petition, the respondents have
also received another set of documents from the Russian Federation called
“Note Verbale” No.175 dated 08.02.2016. The complete document has been
placed on record, and also provided to the petitioners.
16. Mr. Goel submits that even if the petitioner had any outstanding
grievance, on account of the information contained in the letter of request
for legal assistance allegedly not being complete, the same cannot survive
upon receipt of the said Note Verbale. He points out that the said Note
W.P.(CRL) 2572/2016 Page 12 of 20
Verbale not only contains the Indictment Order dated 06.06.2016, but also
the specific queries that the petitioner is expected to answer. Mr. Goel
further submits that the CBI is not interested in personally interrogating the
petitioner, and the CBI would be satisfied if the queries – which have
already been provided to the petitioner along with Note Verbale, are
answered by him in writing and the answers provided to the CBI for onward
transmission to the Russian Federation.
17. Having heard learned senior counsel for the petitioner and learned
counsel for the respondent, I am of the view that no grievance of the
petitioner survives - even if one existed at the time when the petition was
preferred, in view of the communication of the Note Verbale to the
petitioner which contains not only the Indictment Order, but also set of
queries that the petitioner is expected to answer.
18. A perusal of the indictment order clearly discloses that the petitioner
is an accused in the said Criminal Case no.385014 pending in the Russian
Federation. The indictment order, in its relevant part, reads as follows:
“ On June 12, 2008 as instructed by the Russian Ministry of
Finance, the State Corporation “Bank for Development and
Foreign Economic Affairs” (hereinafter –
“Vnesheconombank”) transferred to 50% of the Russian share,
i.e. Rs.2,500,000,000 (two billion five hundred million), which
is about USD 58 000 000 (fifty-eight million) as the first
payment to the TPPL’s current account.
Unlike the Russian Federation, the Indian shareholders (these
companies are controlled by Indian nationals S.M. Shroff and
his son R. Saraf), invested only an amount equivalent to USD
33,333 in the joint venture, accounting for about 1-2% of the
W.P.(CRL) 2572/2016 Page 13 of 20
amount they were required to contribute to the share capital.
Thus, the Indian Party failed to fulfil the necessary conditions
for obtaining of a share certificate. According to available
data, the companies were lacking any funds.
Thus, on October 15, 2008 in order to organise the Joint
Venture operation, the Government of Orissa and TPPL
represented by S.M. Shroff signed the Memorandum of
Understanding under which the Government of Orissa and the
Joint Venture agreed on provision of a land plot in the State of
Orissa to the Joint Venture for placing of manufacturing
facilities.
Further, in breach of the existing obligations, at the initiative of
the Indian Party represented by S.M. Shroff and R. Saraf, who
were acting by fraud, two land plots (34.095 acres in
Chatrapur, Ganjam district, State of Orissa, India) were leased
not to TPPL, but to its minority shareholder SAPL.
Subsequently, SAPL, in violation and disregard of the
agreements reached, and in breach of the Joint Venture’s
interests, suggested that TPPL should sublease the land plots
meant for placing the manufacturing facilities at a rate 12 times
higher than the one paid for the lease by the shareholder.
Due to the said actions, TPPL was never granted leasehold to
the land plots for placing of the manufacturing facilities, which
eliminated the possibility to arrange manufacturing and
resulted in the titanium dioxide and other titanium products
project implementation being frustrated, which caused an
extremely large financial damage to the Russian Federation.
Moreover, in 2009 to 2011, S.M. Shroff and R. Saraf acted in
violation of the TPPL’s Articles of Association and in breach of
the company’s legal interests, having received access to its
accounts, disposed of the company’s fund without approval
from TPPL’s Board of Directors. In addition, the funds were
disposed of without notification to the Russian Federation in
such a way that benefitted the Indian Party, particularly, SAPL.
W.P.(CRL) 2572/2016 Page 14 of 20
In 2009-2010, under unspecified circumstances, based on
documents forged by the accomplices, with no coordination
with the Board of Directors and without notifying of the
Russian Party, S.M. Shroff, R. Saraf and their unidentified
accomplices organised transfer of funds from the account of
TPPL.
Moreover, on December 22, 2009, the amount equivalent to
RUB 271378000000 (Rs.288,700,000) was transferred from the
account of TPPL to the account of TMPL. Thereafter, on
March 1, 2010 the amount of funds equivalent to RUB
235,000,000 (Rs.250,000,000) was transferred to the account of
SAPL. Then, on November 23, 2010, the amount equivalent to
RUB 1,035,598,000,000 (Rs.1,101,700,000) was transferred
from the account of TPPL to the account of SAPL for the
purpose of concealment of the funds and illegal personal
mercenary enrichment; the said funds were subsequently
transferred to the accounts of the companies under control of
S.M. Shroff, R. Saraf and their unidentified accomplices.
By doing so, S.M. Shroff, R. Saraf and their unidentified
accomplices, specified “expense recovery for development of
the project and return of the money for the shares used” as the
purpose of the transfer made, thereby misleading bank clerks as
to the true criminal intents.
Thus, under unspecified circumstances, in unspecified time, but
no later than on March 10, 2011 the amount equivalent to USD
20,000,000 (twenty million), which amounts to RUB
644,010,000 (six hundred forty four million ten thousand) at the
Central Bank of Russia’s exchange rate on the relevant date,
was transferred from the account of TPPL, with no
coordination with the Board of Directors and without notifying
of the Russian Party, based on documents forged by
accomplices, to the account of SAPL controlled by S.M. Shroff,
R. Saraf and further, on March 30, 2011 the part of the
specified money in the amount equivalent to USD 15,000,000
(fifteen million), which makes at least RUB 448,465,500 (four
hundred forty eight million four hundred six) at the Central
W.P.(CRL) 2572/2016 Page 15 of 20
Bank Russia’s exchange rate, was transferred from the account
of SAPL to the account of Forum projects, a company founded
by S.M. Shroff and managed by R. Saraf, members of Joint
Venture’s Board of Directors on behalf of the Indian party.
Thus, Sanvar Mull Saraf, in 2009-2010, acting jointly and in
coordination with Rahul Saraf and other unspecified persons,
by false pretenses, committed a fraud that is misappropriation
of funds belonging to the Russian Federation on behalf of
Federal Agency for State Property Management in especially
large size that is committed an offence under Art. 159(4) of the
Russian Criminal Code.
Based on the above and in reliance on Art. 171, 172 the
Russian Criminal Procedural Code,
ORDERED TO:
Name Sanwar Mull Shroff born on January 12, 1935 in
residents Kolkata, as a defendant in the criminal case and
charge him with an offence under Art. 159(4) of the Russian
Criminal Code, which he shall be made aware of ”.
19. Since the CBI is satisfied with the receipt of a written reply to the said
queries by the petitioner and does not require the petitioner, for his personal
interrogation, the apprehensions expressed by the petitioner, and his
grievance with regard to protection of his rights as an accused do not
survive. The petitioner is now well aware of the fact that he is an accused in
the said criminal case pending in the Russian Federation, and he is also
clearly aware of the specific allegations made against him in the said case.
It is upto the petitioner to answer the queries in the manner he considers
appropriate. Even under the treaty obligation, the requesting party is not
required to provide the entire case material to the other party i.e. the Indian
State in the present case. Article 13 of the treaty is relevant and the same
W.P.(CRL) 2572/2016 Page 16 of 20
reads as follows:
“ Article 13
Contents of requests
1. In all cases requests for assistance shall include:
1.1. the competent authority conducting the
investigation, criminal prosecution or
proceedings to which the request relates;
1.2. a description of the nature of the investigation,
criminal prosecution or proceedings, including a
copy or summary of the relevant facts and ' laws;
1.3. the purpose for which the request is made and the
nature of the assistance sought; and
1.4. any time limit within which compliance with the
request is desired.
2. Requests for assistance shall also contain the following
information:
2.1. where possible, the identity, nationality and
location of the person or persons who are the
subject of the investigation or proceedings;
2.2. where necessary, details of any particular
procedure or requirement that the Requesting
Party wishes to be followed and the reasons
therefor;
2.3. in the case of requests for the taking of evidence or
search and seizure, a statement indicating the
basis for belief that evidence may be found in the
jurisdiction of the Requested Party;
2.4. in the case of requests to take evidence from a
person, information as to whether that evidence is
W.P.(CRL) 2572/2016 Page 17 of 20
required to be sworn, affirmed, or otherwise taken
in conformity with the law of the Requested Party,
and a description of the subject matter of the
evidence or statement sought; .
2.5. in the case of lending of exhibits, the person or
class of persons who will have custody of the
exhibit, the place to which the exhibit is to be
removed, any tests to be conducted and the date by
which the exhibit will be returned;
2.6. in the case of making persons in custody available,
the person or class of persons who will have
custody during the transfer, the place to which the
person in custody is to be transferred and the date
of that person's return;
2.7. the need, if any, for confidentiality and the reasons
therefor;
2.8. any other information that might be useful in order
to execute the request.
3. If the Requested Party considers that the information
contained in the request is not sufficient to enable the request to
be dealt with, that Party may request that additional details be
furnished.
4. A request shall be made in writing. In urgent
circumstances or where otherwise permitted by the Requested
Party, a request may be made by facsimile or other agreed
means of electronic communication but shall be confirmed in
original written form promptly thereafter.” (emphasis
supplied)
20. Thus, it is only a description of the nature of the investigation,
criminal prosecution or proceedings, including a copy or summary of the
relevant facts and laws, which are required to be provided by the requesting
State. Pertinently, the stage in the said criminal case is still the stage of
W.P.(CRL) 2572/2016 Page 18 of 20
“investigation”. The Russian Federation has desired legal assistance for the
purpose of investigation. Even in the Indian context, the petitioner cannot
demand any document/evidence from the investigating agency as a matter of
right. (See Maria Monica Susairaj V. The State of Maharashtra through
CID, Unit-VIII , MANU/MH/0994/2008). The petitioner is not required to
depose on solemn affirmation. There is no “trial” underway yet. Though
the petitioner claims that he is prejudiced on account of the complete case
papers not being made available, he has not particularised either the
information/ documents that he needs to be able to answer the queries, or the
manner in which he will suffer any prejudice. A bald assertion made by the
petitioner in this regard would not suffice.
21. The decision in Youth Bar Association of India (supra) relied upon
by the petitioner, in my view, does not come to the aid of the petitioner. As
noticed herein above, the said decision has been rendered by the Supreme
Court in the context of cases/ FIR which are registered in the Indian
territory. In the present case, the criminal case has been registered not in the
Indian territory, but in the Russian Federation.
22. The queries raised by the petitioner with regard to the identity of the
complainant, and also whether the allegations contained in the indictment
order are complete by themselves, cannot be expected to be answered by the
respondents. In my view, the said queries, in any event, appear to be
irrelevant at this stage, and even if the petitioner considers the same to be
relevant, it is open to the petitioner to structure his response to the queries
raised appropriately. The petitioner cannot use the process undertaken by
the respondents in pursuance of the aforesaid treaty as an opportunity to start
W.P.(CRL) 2572/2016 Page 19 of 20
a reverse process of interrogating the respondents on aspects which do not
concern them. The respondents cannot also be required to give any
assurance to the petitioners, as to whether the allegations found in the
indictment order are complete in themselves, or not.
23. For all the aforesaid reasons, I find no merit in this petition.
Dismissed.
24. At this stage, Mr. Goel submits that in case the petitioner were not to
answer the queries communicated to him along with the Note Verbale within
two weeks, the respondents shall be compelled to take other steps in
accordance with law. In case the petitioner chooses to answer the queries,
the petitioner shall also fill in the form contained at internal page 96 of the
Note Verbale, which is a part of the indictment order.
25. Dasti.
VIPIN SANGHI, J
FEBRUARY 17, 2017
sr
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