Delhi High Court - Orders
Navayuga Engineering Company Limited & ... vs Central Bureau Of Investigation on 29 August, 2024
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2633/2024, CRL.M.A. 25795/2024
NAVAYUGA ENGINEERING COMPANY LIMITED & ORS.
.....Petitioners
Through: Mr. Rajiv Nayar, Sr. Adv., Mr.
Sidharth Luthra, Sr. Adv., Mr. Saurav
Agrawal, Mr. Shivek Trehan, Ms.
Aakansha Kaul, Ms. Aastha Mehta,
Mr. Shantanu Agarwal, Mr. Saurabh
Seth, Mr. Kapil Rustagi, Mr.
Chandrayee Maitra, Mr. Harshit
Malik, Mr. Arjun Verma, Mr. Sayid
Kamran Ali, Mr. Manas Arora, Ms.
Allaka M., Ms. Rishika Goyla, Advs.
versus
CENTRAL BUREAU OF INVESTIGATION .....Respondent
Through: Mr. Anupam Sharrma, SPP-CBI, Mr.
Prakash Airan, Ms. Harpreet Kalsi,
Mr. Ripudaman Sharma, Mr. Vashisht
Rao, Mr. Syamantak Modgill, Advs.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 29.08.2024 CRL.M.A. 25795/2024 (Exemption) Exemption is allowed subject to all just exceptions. The application stands disposed of.
W.P.(CRL) 2633/2024
1. The present petition has been filed for quashing of the first information report bearing number RC2172024A0013/AC-II/CBI registered under Section 5 of Official Secrets Act, 1923 read with Section 61(2) of BNS, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:11 2023.
2. Mr.Rajiv Nayar and Mr.Siddharth Luthra, learned senior advocates have submitted that the gist of the case in brief is that the petitioner company bid for a contract. The project was initially awarded to the petitioner company by Indian Navy. However, later on it was terminated unrealistically for not completing the project in 42 months.
3. Learned senior counsels submit that this led to the dispute between the parties and the petitioner company initiated the arbitration proceedings. Learned senior counsel submits that in order to substantiate their claim the petitioners sought to produce the following experts:
(i) Prof. J.W. Van Der Meer, Principal of Van Der Meer Consulting B.V., Netherlands
(ii) Mr. Eelco Bijl, Project Manager, Senior Coastal & Maritime Structure Specialist at CDR International BV, Netherlands
(iii) Mr. Martin Mannion, Director of Mannion Marine Limited, Ireland
(iv) Mr. Paul Greenwell, Director of Socotec Advisory Limited, United Kingdom
(v) Dr. S. Nallayarasu, Professor and Head of Department, the Department of Ocean Engineering at the Indian Institute of Technology Madras, India
(vi) Mr. Amit Bansal, Partner with the Forensic & Dispute Services practice of Deloitte Touche Tohmatsu India LLP, India.
4. Learned senior counsels submit that three of the aforementioned experts at serial nos. (i), (ii) and (v) namely Prof. J.W. Van Der Meer, Mr. Eelco Bijl & Dr. S. Nallayarasu were already participating in the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:11 execution of the project since 2020. Learned senior counsels submit that now the complainant before the CBI has sought to invoke the provisions of the Official Secrets Act in view of clause 1.15 of the conditions of the contract. Clause 1.15 is reproduced as under:
"All maps, plans, drawings, specifications, schemes and the subject matter contained therein and all other information given to the Contractor in connection with the performance of the Works shall be held confidential by the Contractor and shall remain the property of the Employer and shall not be used or disclosed to third parties by the Contractor for any purpose other than for which they have been supplied or prepared. The Contractor may, only with explicit prior approval of the Employer, disclose to third parties, upon execution of secrecy agreements, such part of the drawings, specifications or information if such disclosure is necessary for the performance of the Works under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Works in any trade or technical paper. Neither shall the Contractor broadcast any particulars of the Works on television, radio or any medium such as internet without the prior approval in writing of the Employer.
On completion of the Works or upon termination of the Contract, the Contractor shall return to the Employer all drawings and documents received by him from the Employer. The Contractor shall ensure that neither the Contractor nor any of his officials or employees or any other persons shall have possession or access to any copy thereof.
The Contractor shall ensure that all persons employed on any work connected with this Contract have noted that the Indian Official Secrets Act 1923 (XIX of 1923) applies to them and continue to apply even after the termination or expiry of the Contract. This condition shall also apply to his Subcontractors. An undertaking to this effect is to be submitted by the Contractor to the Employer before the Commencement Date.
The Contractor, his Subcontractors and employees of either of them shall not, either during the term or after the expiration or termination of this Contract disclose any proprietary information, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:12 including: information relating to reports, data, drawings, design software or other material (whether written or oral, in electronic or magnetic format) and the contents thereof, or any reports, digests or summaries created or derived from any of the foregoing that is provided by the Employer to the Contractor, his Subcontractors and their employees; any information provided by or relating to the Employer, its technology, technical. processes, business affairs or finances or any information relating to the Employer's employees, officers or other professionals or suppliers, customers, or contractors of the Employer; and any other information which the Contractor is under an obligation to keep confidential in relation to the project, the Works or this Contract ("Confidential Information"), without the prior written consent of the Employer.
Notwithstanding the aforesaid, the Contractor, its Subcontractors and the employees of either of them may disclose Confidential Information to the extent that such Confidential Information:
(a) Was in the public domain prior to its delivery to the Contractor, his Subcontractors and the employees of either of them or becomes a part of the public knowledge from a source other than the Contractor, his Subcontractors and the employees of either of them;
(b) Was obtained from a third party with no known duty to maintain its confidentiality,
(c) Is required to be disclosed by Law or judicial or administrative or arbitral process or by any Govenmental Instrumentalities, provided that for any such disclosure, the Contractor, his Subcontractors and the employees of either of them shall give the Employer, prompt written notice, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment;
(d) Is provided to the professional advisers, agents, auditors or representatives of the Contractor or his Subcontractors or employees of either of them, as is reasonable under the circumstances; provided, however, that the Contractor or his Subcontractors or employees of either of them, as the case may be, shall require their professional advisers, agents, auditors or representatives, to undertake in writing to keep such Confidential This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:12 Information, confidential and shall use their best efforts to ensure compliance with such undertaking.
This Sub-Clause shall survive the termination or completion of the Contract in perpetuity."
5. Learned senior counsels submit that in fact intention of the complainant is only to cause delay in the arbitration proceedings.
6. Issue notice. Mr. Anupam S. Sharrma, learned special counsel for CBI has accepted the notice.
7. Learned special counsel submits that the provisions of Official Secret Act,1923 have rightly been invoked as three of the experts are foreign nationalsand under the garb of the arbitration proceedings, the confidential information is being shared with them which is in violation of the Official Secrets Act.
8. Let the status report be filed before the next date of hearing.
9. Re-notify on 30.09.2024.
CRL.M.A. 25899/202410. This is an application seeking exception from filing copy of the first information report and direction for providing a copy of the said FIR.
11. Issue notice. Mr.Anupam S.Sharrma, learned special counsel for CBI has accepted the notice. Let status report be filed.
12. List on 30.09.2024.
CRL.M.A. 25898/202413. The present application has been filed with the following prayers:
A. Pass an Ex- Parte Order staying the proceedings/investigation arising out of the FIR bearing number RC2172024A0013/AC- II/CBI registered by CBI at Delhi under Section 5 of the Official Secrets Act, 1923 r/w Section 61(2) of the Bharatiya Nyaya Sanhita, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:13 2023 and all consequential proceedings emanating therefrom; B. Direct the Respondent i.e., CBI not to take any coercive steps/measures against the Petitioner No.1's officials, employees, directors and experts/witnesses during the pendency of the Petition; C. Direct the Respondent not to take any coercive steps/measures against the Petitioner No. 2 and Petitioner No. 3 during pendency of the Petition;
D. Direct Respondent i.e., CBI to place on record of this Hon'ble Court the impugned FIR being RC2172024A0013/AC- II/CBI registered by Central Bureau of Investigation, New Delhi at Delhi;
14. Mr. Siddharth Luthra and Mr. Rajiv Nayar, learned senior counsels submit that the petitioners apprehend the coercive actions against them and therefore some protection may be granted.
15. Issue notice. Mr. Anupam S. Sharma, learned special counsel for CBI has accepted the notice. Learned special counsel has opposed the prayers made in the application. Mr. Sharma submits that the relief sought for by the petitioners cannot be granted in the present matter as they have to file an application for anticipatory bail.
16. Learned senior counsels for the petitioners submit that they are challenging the initiation of proceedings itself in view of Section 42A of the Arbitration and Conciliation Act, 1996.
17. Let the status report be filed.
18. In the meanwhile, CBI may continue with the investigation, however, no coercive action shall be taken against the petitioners till the next date of hearing.
19. List on 30.09.2024.
DINESH KUMAR SHARMA, J AUGUST 29, 2024/rb/ht.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 31/08/2024 at 04:32:13