The Delhi High Court Monday dismissed the Enforcement Directorate's (ED) plea to revoke approver status of Rajiv Saxena in the AgustaWestland VVIP chopper scam.
Justice C Hari Shankar, who pronounced the verdict via video conferencing, upheld the trial court's decision not to revoke Saxena's pardon as sought by the ED.
ED had sought revocation of Saxena's approver status on the ground that he had undertaken to disclose all the facts related to the offence but he was not doing so.
The probe agency had challenged the trial court's order which had refused to revoke Saxena's approver status.
The Dubai-based businessman, Saxena was extradited to India on January 31 last year in connection with the Rs 3,600-crore scam case relating to the purchase of 12 VVIP helicopters from AgustaWestland.
The high court said that the ED's plea before the trial court for revoking the approver status was not maintainable as his statement under section 306 (4) of the Criminal Procedure Code (CrPC) had not been recorded.
The high court further said that once his statement under section 306 (4) of CrPC is recorded, the ED can again move an application for revoking Saxena's approver status.
Section 306 (4) of CrPC provides for recording of statement of an accomplice who has been granted pardon.
The high court also said that the public prosecutor issuing a certificate, under section 308 CrPC, stating that the approver has given false evidence or wilfully concealed material has to be preceded by recording of the statement.
Section 308 of CrPC lays down procedure for trial of an approver who has not complied with conditions of a pardon.
The high court said the certificate of the public prosecutor in the present case was based entirely on alleged non-cooperation by Saxena during investigation and it does not conform to the provisions of sections 306 and 308 of CrPC.
Therefore, it cannot legitimately constitute the sole basis for seeking revocation of the pardon given to Saxena, the high court said.
"Resultantly, I find myself in agreement with the view expressed by the special judge, that, before the recording of his statement under section 306 (4) CrPC, the application of the petitioner (ED), as preferred before him, was not maintainable.
"The petition, therefore, fails and is dismissed. Needless to say, however, the liberty, reserved by the impugned order (of trial court), with the petitioner, to re-approach the special judge by an appropriate application, at the appropriate stage, remains reserved," Justice Shankar said in his 50-page judgement.
ED, in its plea before the trial court, had said that while seeking pardon, Saxena had said he will make full disclosure of the facts within his knowledge and his statement was recorded in March last year after which he was granted pardon.
He was allowed to be an approver by the trial court subject to his making full and true disclosure of the whole of circumstances within his knowledge relating to the offence.
The ED had contended that Saxena has very strategically withheld and not disclosed full and true facts which were within his knowledge, relating to the commission of the offence, and has deliberately hidden and fabricated certain documents to shield the other co-accused, which was contrary to the terms of the grant of pardon granted by the trial court.
The trial court, in its order refusing to revoke his approver status, had said that failure of accused to comply with the conditions on which the pardon was tendered, makes him liable to be tried.
However, Saxena was yet to enter into the witness box to depose before the court and as on date, his status was of a witness and he has ceased to be an accused, the trial court had said.
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