UNION OF INDIA Vs. AJIT KUMAR AGARWALLA

JUDGEMENT

(1.) This is an appeal assigned to us for being heard out. In connection with the appeal, an application for interlocutory order has been presented. The appeal is directed against two orders passed by learned single Judge of this Court, one dated 21st May, 1996, and the other dated 30th May, 1996. In substance, by the first order, the learned single Judge laid down the manner in which the investigation, in accordance with law, was to be carried out, by directing, inter alia, that the time for such investigation, on Mondays, Wednesdays and Fridays, would be between 11.00 a.m. and 4.00 p.m. and that the petitioners would be at liberty to take assistance of an Advocate of their own choice, who would be present to over-see the interrogation going on without interfering with the same. The other direction, relevant for the present purpose, was that the petitioners would be supplied with a copy of the seizure list of the documents within a period of 10 days from the date of the order and that they would be entitled to have copies or extracts of the documents seized from their custody; petitioners were also granted leave to have the order modified upon notice. By the order, dated 30th May, 1996, while dealing with the petitioners' application for clarification/modification of the order dated 21st May, 1996, the learned Judge appears to have clarified by recording that during the period of seven weeks the petitioners should not be arrested without leave of the Court and the respondents were directed to give copies of the statements recorded by the interrogating authorities in course of interrogation on a day-to-day basis. The learned Judge, while doing so, refused the prayer of the respondents for filing affidavit-in-opposition to the application for clarification, but recorded that the allegations be deemed not to have been admitted.

(2.) In course of hearing before us, the learned Counsel for the contesting parties had taken great pains in making very detailed submissions, which can be said to have great relevance, particularly for the disposal of the main writ application, which was pending consideration before the single Bench. Indeed, the validity of the proceedings, initiated by the Custom Authorities, had been sought to be assailed, on behalf of the respondents to the appeal, and countered on behalf of the appellants, in addition to the specific contention having been raised with regard to the scope of the present appeal and the propriety of the adjudication of the other points.

(3.) At the very outset, we would like to point out that the scope of appeal before us is very limited, in the absence of a cross appeal, coupled with the admitted fact that in compliance with the initial order, passed by the learned Trial Judge, dated 21st of May, 1996, interrogation had already commenced. We feel it necessary, at this juncture, to record that we are not unmindful of the contention raised on behalf of the respondents to the present appeal, very emphatically, that after having confirmed to the order, dated 21st of May, 1996, it was not open to the appellants to assail the same through the present appeal and ask the Court to set the same aside. For avoiding any misunderstanding, we do not feel hesitant to record that only on that ground the right of the respondents/appellants to challenge the order, dated 21 of May, 1996, cannot be deemed to have been waived. For an authority on the above proposition, reference may be made to the case of Bhau Ram Vs. Baij Nath Singh, AIR 1961 SC 1327. On the same principle we feel to be well within our jurisdiction also to consider the propriety of the clarifying/modifying order passed by the learned single Judge, dated 30th May, 1996.