C. Sivasankaran vs Union Of India

REPORTABLE 2021 INSC 833 IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 302 OF 2019

C. SIVASANKARAN Petitioner(s) VERSUS

UNION OF INDIA & ORS. Respondent(s)

O R D E R

Heard learned counsel for the parties.

The relief(s) claimed in this writ petition under

Article 32 of the Constitution of India is founded on the

assertion that the petitioner being an Ambassador-at-

large of Seychelles, enjoys diplomatic immunity and,

therefore, cannot be proceeded with before the Courts in

India much less by way of criminal action. This very

argument was canvassed by the petitioner in the writ

petition filed before the High Court of Judicature at

Madras, which after considering all the relevant aspects,

came to be rejected vide judgment and order dated

06.11.2019.

Having perused the said judgment, we are in agreement

with the view expressed therein. For, the petitioner 2

does not come within the sweep of definition of

“diplomatic agent” or for that matter any other category

of officials referred to in Article 1 of the Vienna

Convention on Diplomatic Relations Done at Vienna on

18.4.1961. This is precisely the opinion expressed by

the Madras High Court, which, we hereby affirm. That is

a question of fact as well as of law.

The affidavits filed by the respondents including the

Central Bureau of Investigation (CBI), for resisting the

present writ petition have amongst other, brought on

record communications dated 16.08.2019 and 19.08.2019

issued by the Ministry of External Affairs, Government of

India, which, in turn, refer to the communication

received by it from Seychelles Government clarifying that

the petitioner is Ambassador-at-large of that country and

has been issued a diplomatic passport, but his presence

in India was not on any official duty on behalf of that

Government. There is no reason to doubt the correctness

of the position so stated in the communications and

reiterated on affidavit filed before this Court dated

2.7.2020. Further, the affidavit also points out that

the petitioner is not covered by Article 31 of the 3

Convention, but falls in the exception contained therein,

as his activities being investigated, do not pertain to

any official functions but in respect of his commercial

activities as such.

As a matter of fact, the judgment of the Madras High

Court stares at the face of the petitioner, which has

remained unchallenged; and as aforesaid, we are in

agreement with the view expressed therein particularly

regarding the real status of the petitioner herein being

only an Ambassador-at-large. It must, therefore, follow

that the petitioner cannot be heard to invoke the

argument of diplomatic immunity and if that contention

fails, further reliefs claimed in the writ petition

regarding quashing of concerned criminal cases cannot be

taken forward.

Notably, the first relief claimed by the petitioner

in the writ petition is on an erroneous assumption that

the provisions of the Vienna Convention and of the

Diplomatic Relations (Vienna Convention) Act, 1972 are

ultra vires and, thus, urge upon this Court to read down

certain provisions such as Sections 2 and 3 of the Act.

The question of reading down any provision would arise 4

only if the petitioner is able to demonstrate that the

impugned provision was otherwise ultra vires the

Constitution and the law. The latter has not been

pleaded nor established in the first place.

As aforesaid, on facts as well as in law, the

petitioner is not entitled to diplomatic immunity and as

a consequence thereof, the further reliefs claimed in the

writ petition cannot be taken forward. Hence, this writ

petition deserves to be dismissed and we so order.

We place on record our serious concern about the

manner in which the proceedings have been pursued by the

petitioner before this Court. In the first place, this

writ petition was filed without annexing copy of the

stated judgment of the Madras High Court though a

relevant and material document.

Further, in the rejoinder affidavit, the petitioner

has annexed copy of the legal opinion given by a former

Judge of this Court. That cannot be countenanced at all.

It needs to be deprecated in strong terms and we do so.

At the same time, we place on record sincere apology

given by the learned senior counsel appearing for the 5

petitioner concerning filing of the opinion of the former

Judge of this Court by the Advocate-on-Record or the

counsel advising the petitioner, as the case may be.

Interim relief(s), if any, stands vacated forthwith.

....................,J.

(A.M. KHANWILKAR)

....................,J.

(DINESH MAHESHWARI)

....................,J.

(C.T. RAVIKUMAR)

NEW DELHI;

December 07, 2021.

6

ITEM NO.6 COURT NO.3 SECTION X

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal) No(s). 302/2019

C. SIVASANKARAN Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

([FOR PHYSICAL HEARING]

IA No. 23054/2021 - APPLICATION FOR PERMISSION IA No. 35071/2021 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 170769/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 169692/2019 - STAY APPLICATION)

Date : 07-12-2021 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE C.T. RAVIKUMAR

For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. Varun Shankar, Adv. Mr. Arnav Narain, AOR Mr. R.S. Lakshman, Adv. Mr. Atharv Koppal, Adv. Mr. Rakshit Ranjan, Adv.

For Respondent(s) Mr. Tushar Mehta, learned S.G. Mr. Mayank Pandey, Adv. Mr. Kanu Agrawal, Adv.

Mr. Zoheb Hussain, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Mukesh Kumar Maroria, AOR

Mr. Avadh Bihari Kaushik, AOR

UPON hearing the counsel the Court made the following O R D E R 7

The writ petition is dismissed in terms of the signed

order.

Pending applications, if any, stand disposed of.

(DEEPAK SINGH) (VIDYA NEGI) COURT MASTER (SH) COURT MASTER (NSH)

[Signed order is placed on the file]