TMI Blog1979 (4) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 0B, 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 aircrafts 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 disburse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mutual Savings Bank, Seattle, to make available all the abovementioned 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 April 24, 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 Criminal Procedure Code 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. 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 July 3, 1978. At the time of admission it appears that the respondents, namely, the Union of India, the State of Maharashtra and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, i.e. 11th, it was directed to be heard today. The arguments which were partly advanced by Mr. Desai were continued today by Mr. Sethana. 7. Mr. Sethana contended that on the face of the order of the Magistrate dated April 24, 1978, the order is itself illegal because even, according to the learned Magistrate, he could not invoke the provisions of Section 91 of the Code of Criminal Procedure. It was, therefore, argued that there was no provision in the Code of Criminal Procedure 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 proceed to decide this petition on the assumption that the order of the learned Magistrate is not supported by any provisions of the new Criminal Procedure Code. The question, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the moneys in this account have come to be deposited as a result of certain undisclosed agreements 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 the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of the provisions of Section 132 of the Income Tax Act, still the material seized was liable to be used subject to law 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. 15. In an earlier decision in Magraj Pt Modia v. R.K. Birla [1971]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. 16. 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 April 24, 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to make such use of the documents as they thought fit. But since the petitioner has made a 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. 18. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Criminal Procedure Code 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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