2G Spectrum: How Wednesbury Principles Got Invoked In CBI's Leave To Appeal Before The Delhi HC

Mr Vijay Aggarwal, who was appearing for one of the Respondents Mr Rajiv Aggarwal, had filed a civil writ petition asking the court to scrutinise the correctness of the procedure followed by the CBI in moving the present appeal under section 378 of the Criminal Procedure Code.

'I'm not challenging the merits of the decision, milord, I'm questioning the shyness of the CBI to produce documents that highlight the decision-making process', Mr Aggarwal argued.

As the present matter is listed before a criminal court, CBI had taken an objection to this Bench entertaining a civil writ petition. 'The matter is at leave to appeal stage, such petitions are immature', Additional Solicitor General Sanjay Jain had contended on behalf of the investigating agency.

It is to counter this stance of the CBI, that Mr Aggarwal invoked the court's power to apply the Wednesbury principles. Established by a court in the UK in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, the said principles allow a writ court to scrutinise the decision-making process of an administrative authority and see if the same suffers from arbitrariness or procedural irregularities.

Blurring the line between a criminal and civil writ court, Mr Aggarwal began by arguing that the said distinction is artificial and was created by this court just for the matter of convenience. He emphasised that the court has to forget, for a while, that it's hearing a criminal appeal, and address the moot question whether the administrative decision warranting the filing of the appeal is lawful or not.

'You first have to win a semi-final matchup, before contesting the finals', Mr Aggarwal argued.

Continuing with his focus on invocation of Wednesbury Principles, Mr Aggarwal argued that it is important to see whether the action of the executive is within the parameters of law and that the decision passes the test of reasonableness. If the administrative order is irrational or has been arrived at within taking into consideration relevant factors or suffers from procedural irregularities or if the same is based on distorted / illogical grounds.

It was pointed out by Mr Aggarwal that the relevant consideration that ought to have gone into the Government of India was to be in terms of the CBI Manual as well as the Delhi High Court Rules. The consideration ought to have been divided into three aspects, whether the acquittal by the Trial Court was due to the mistakes by the Investigating Agency or by the Prosecution or due to the faults committed by the Trial Court.

It was argued:

'The decision passed is an executive decision and the discretion is not exercised properly. It was argued that there was no pre-screening in the matter, as in case there was even the slightest application of mind, it would have been clear that the prosecution had itself given up the majority of its case as was specifically noted by the Ld. Trial Court in various portions of the judgment and that the case set-up before the Trial Court was not even based on any evidence as there was lack of proper investigation by the Investigating Agency.'

The court will continue to hear the arguments on CBI's leave to appeal in the present matter today.