Bofors Order-Ottavio Quattrocchi Order
Bofors Order-Ottavio Quattrocchi Order
2011
IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI
RC1(A)/90
CBI/ACUIV/SIG/ND (Bofors Case)
CBI V/s Ottavio Quattrocchi
Unique Case ID No.: 02401R6227212004
04.03.2011
O R D E R:
By this order, I shall dispose off application U/s 321 Cr.P.C, filed
withdrawal of the case against accused Mr.Ottavio Quattrocchi (hereinafter
referred to as “Q”). This application was filed on 03.10.2009. Alongwith the
application, a letter dated 28.09.2009 of the Government of India, Ministry of
Personnel, PG & Pensions was also filed, whereby the Central Government
has conveyed its “approval” to the proposal of CBI for moving this court for
obtaining consent to withdraw prosecution against “Q”.
2. This application was opposed by two persons namely Shri Ajay
Kumar Aggarwal, Advocate (hereinafter referred to as “Aggarwal”) and Shri
Siddharth Gupta, Advocate (in the capacity of President of a society namely
“Gupta”).
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3. When the arguments on this application commenced, the learned
Additional Solicitor General of India, Shri P.P Malhotra, raised a preliminary
objection that “Aggarwal” and “Gupta” do not have “locusstandi” to oppose
this application and argued that application U/s 321 Cr.P.C is necessarily
between the Public Prosecutor and the Court. However, in the larger interest
arguments as “Amicus Curiae”. However, at that stage, it was left open as to
whether they had “locusstandi” to oppose this application or not. I will deal
with this aspect a little later.
4. This case has a chequered history. The facts of the case in brief,
required for the disposal of this application, succinctly stated are as under:
FACTS ABOUT BOFORS CONTROVERSY:
bidders to have their Indian gents. However, they were required to furnish
proforma. Subsequently, the Govt. of India in consultation with the Defence
Department, made a uniform policy, prescribing that “agents” were not to be
allowed in Indian defense purchases. If any bidder had maintained one, the
amount so payable to agent by the supplier, was to be reduced from the quoted
deal. The revised policy was to ensure that the deal was on a principal to
principal basis, to avoid undesirable consequences which may arise out of
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such arrangement, to save the cost to the defense budget and thus to the public
exchequer.
6. In respect of the Bofors gun deal, at the relevant time, there were
four bidding firms involved in the bidding of the gun deal, namely, M/s Sofma
(France), M/s Bofors (Sweden), M/s International Military Services (Britain)
requisite information about their agents in India.
1984, under the signature of Hans Ekblom, Vide President (Marketing), had
informed that – W.N. Chadha of M/s Anatronic General Corporation, C4,
Main Market, Vasant Vihar, New Delhi 110057, was their agent, and that,
Verma (retired) were designated:
i) to liaise with the Government of India for the contract;
ii) to liaise with the Indian Authorities.
8. Consequent to the changed defense purchase policy, the Defense
Department, asked M/s Bofors on May 3, 1985, to dispense with the services
of its declared agent and comply with such Indian Defense policy
requirements. Bofors did not respond immediately and as late as on March
10, 1986 informed the Defense Secretary that, Bofors “do not have any
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representative/ Agent especially employed in India for this project”. However,
for administrative services, such as hotel bookings, transportation, forwarding
Corporation, C4, Main Market, Vasant Vihar, New Delhi.
6(9)/84/D/(GS.IV), was entered into between the Govt. of India and M/s
Bofors, after approval by the then Prime Minister, who was also the Defense
[equivalent approximately to Rs. 1437.72 crores (as per the exchange rate on
March 21, 1986, SEK = 1.7094 Rs. Without reducing any agent
representation]. The aforesaid contract was signed by S.K. Bhatnagar for and
behalf of the Govt. of India and by Martin Ardbo, President Bofors and also
Industries, for and on behalf of M/s. Bofors.
10. As per the terms of payments stipulated in this contract, 20% of
the total amount of the contract (with the exclusion of any amount related to
services) was to be paid by the buyer, i.e., Govt. of India, in advance, within
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(Rs.296.15 Crore), equivalent to 20% of the contract value was paid to M/s
Bofors on May 2, 1986.
11. From here the events took a turn. On 16.04.1987, i.e, over a year
after the said contract was executed, when the advance money had been paid
by the Govt. of India as per the terms of the contact and after delivery of the
gun systems had started, a Radio Broadcasting channel “Dagens Eko” of the
Swedish Radio, came out with a sensitive news. It unfolded that Bofors had
violated the Swedish Law by managing to obtain this Gun Supply contract
from the Govt. of India, amongst other things, due to the fact that local agents
had been paid large amounts in “bribes”.
12. It further stated that the agents had helped Bofors in getting the
contract by dubious means with the help of local contacts and support within
the – Indian Military Authorities, the Bureaucracy and concerned politicians.
The illicit payments to the agents and others were said to have been made by
transactions in secret bank accounts in Switzerland.
13. This news became a center of media & political attention in India
also and was intensely reported everywhere, raising very sensitive issues of
Indian Defense Policies, corruption, manipulations etc. The Govt. of India
acted on these disturbing events, and on 2141987, made a formal request to
the Government of Sweden for an investigation into the allegations.
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14. The Swedish Government accepted the request of the Govt. of
India and ordered an enquiry by its organization, the Swedish National Audit
Bureau (SNAB). The SNAB submitted its report to the Swedish Government
of June 01, 1987, which was forwarded on June 04, 1987 to the Govt. of India.
SNAB report, interalia stated that considerable amounts were paid to some
agents by M/s A.B Bofors.
15. SNAB also confirmed that payments to the tune of SEK 170250
million were indeed made by Bofors in connection with this Defense contract
to its previous agent in India, but the names of the recipients were not
mentioned.
16. Facts thus emerged from SANB report that despite having full
knowledge about the policy of the Govt. of India that there should not be any
agent whatsoever in this deal, Bofors continued with its old agent. Further, the
amount such commission instead of reducing from price was paid to agent
and related parties. Bofors thus acted in violation of the Indian defense
policies and rules and harmed the public exchequer, besides committing
breach of propriety etc.
17. It emerged further that despite the Indian Govt's insistence not to
appoint or pay any agent, Bofors entered into a fresh consultancy agreement
with M/s. AE Services Limited of U.K. On November 15, 1985 at the behest
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of one “Q”, an Italian. According to this agreement, M/s. AE Services was
appointed as a consultant to M/s. Bofors for getting the award of the contract
for 155 mm gun systems from the Govt. of India, to perform the following
services :
(i) to support Bofors in its bid for the contract according to
instructions of Bofors;
(ii) to keep Bofors informed of the updodate situation and progress
of negotiations.
18. Bofors was to pay a fee equivalent to 3% of the total value of the
contract pro rata with the receipt of the payments. As per its terms, the
Agreement was to cease automatically on April 1, 1986, if by this date, the
Services were to get the fees only if the contract was, in fact, awarded a week
before that date. It thus emerged that Bofors deliberately suppressed the fact
of their aforesaid Agreement dated 15.11.1985 with M/s. AE Services in their
disclosure and reducing the cost of the deal as stipulated.
19. Investigation revealed that the said “Q” had contacted Myles
7.8.1985, for the purpose of the said agreement and was instrumental in
bringing about the said agreement between M/s. AE Services Limited and
M/s. Bofors. “Q” remained in India from 28.02.1965 to 29.07.1993, except for
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a brief interval from 04.03.1966 to 120.06.1968. He was a Certified Chartered
engineering, management of construction and the training of personnel in the
pipelines. Neither Snamprogetti, nor “Q” had any experience of guns, gun
systems or any related defense equipments.
29615.00 Lakhs), equivalent to 20 % of the contract value, to Bofors on May
2, 1986 by the Govt. of India, Bofors remitted a sum of SEK 50,163,966.00
Account of M/s AE SERvices Limited C/o Mayo Associates SA, Geneva, had
been opened only a fortnight earlier, on August 20, 1986, by Myles Tweedale
exactly 3% of the amount of advance paid by the Govt. of India to Bofors and
was, thus, perfectly in accordance with the terms set out in the A.E. Services
Ltd. Bofors Agreement dated November 15, 1985.
21. From this Account of M/s. AE Services, an amount totaling US
$7,123,900 was transferred ($ 7,000,000 on September 16, 1986, and $ 123900
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Geneva. An amount of US $ 7,943,000 was further transferred from the above
said Account of M/s. Colbar Investments Limited Inc. on July 25, 1988, to
Bank of Switzerland, Geneva. Thereafter, on May 21, 1990 an amount of US $
9,200,000 was transferred from the above said Account of M/s. Wetelsen
Overseas, to Account No.123983 of International Investments Development
Co., in Ansbacher (CI) Limited, St. Peter Port, Guernsey (Channel Islands).
Wetelsen Overseas, were being controlled by “Q” and his wife Maria
Quattrocchi.
22. Enquiries further revealed that, while opening the Account of
Colbar Investments Ltd. Inc. with the Union Bank of Switzerland, Geneva on
March 30, 1984, “Q” had mentioned his address in India as “Colony East,
New Delhi, India”, which was a fake and nonexistent address.
23. Investigations in Guernsey (Channel Island) also revealed that the
Accounts in Switzerland and Austria, within a period of 10 days of its receipt
Delhi to the competent Authorities in Switzerland and Austria for judicial
assistance in investigation in these countries.
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24. More investigative revelations demonstrated that Bofors also had
namely , “M/s. Svenska Inc.” since the year 1978. Despite the Govt. of India's
initial policy requiring foreign bidders to declare the agent in a prescribed
proforma and its subsequent policy requiring foreign bidders to remove their
agents and to reduce the commission amount from the deal price, Bofors yet
again was found to be violating Indian national policies. By this so called
agreement Bofors committed to pay a commission to M/s. Svenska Inc. out of
any contract signed by Bofors in India, Sri Lanka, Nepal etc. This agreement
was modified from time to time and it was agreed in January 1986 that
commission to the extent of 3.2% of the exworks value would be paid to M/s
Svenska Inc. Out of this, 2.24 % (two point two four per cent) of the total ex
works value was to be paid without delay when the advance payment had
been received by Bofors. The remaining 0.96% (point nine six per cent) of the
exworks value was to be paid pro rata without delay when the payments for
deliveries had been received by Bofors.
Liechtenstein and Austria, with a view to finding out other beneficiaries of
the commission amounts.
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26. The documents received from the Swiss Authorities, in response
to the letter by Rogatory, revealed that the following payments were made by
Bofors to Svenska from their Account with Skandinaviska Enskilda Banken,
Stockholm, on May 6, 1986.
SEK 113.39283.64 equivalent to US$ 16,070,412.80
SEK 28259820.64 FFR 27,957,875.84
SEK 28259820.92 CHF 7,346,128.29
SEK
18839879.98
XEU 2,720,363.87
Total SEK 188,398,805.18
A calculation will show that this a almost 2.24% of the total
value of the contract i.e., SEK8410660984, exactly as per the terms of the
aforesaid Agreement.
27. The following additional payments made by Bofors revealed that
each additional payment works out to be exactly .96% of a particular invoice
of Bofors and the date of payment also matches with the date of payment by
the Govt. of India.
Invoice No., its date & date of Gross amount of Commission @ 0.96% (in
payment Invoice (in SEK) SEKO)
1014271 dated 29.7.86 paid on 67,166,028 644,793.87
8.8.86
2010043 dated 20.2.87 paid on 66,657,160 639,908.75
2.3.87
102008 dated 19.2.98 paid on 9.3.87 13,981,805.92 134,225.34
2010136 dated 16.3.87 paid on 71,468,308 686,095.76
7.4.87
1010496 dated 23.3.87 paid on 27,195,139 264,456.18
2.4.87 and 1010488 dated 20.3.87 352,380
paid on 3.4.87
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M/s. Bofors had paid an amount equivalent to SEK 192156200.05 during the
period from April 24, 1986 to March 30, 1987 in the name of M/s. Svenska
credited to Account No.99921TU of Mr. W.N. Chadha then resident of C5/7,
Vasant Vihar, New Delhi (India) with Swiss Bank Corporation, Geneva. The
said Account was opened on August 9, 1983 with initial deposit of US
Attorney in favour of his wife Ms. Kanta W. Chadha and his son Hersh W.
Chadha. It also emerged that the Board of Directors of M/s. Svenska Inc.,
Panama, in its meeting held on 30.4.1980, had authorised W.N. Chadha, then
resident of C5/7, Vasant Vihar, New Delhi, to open and operate bank
accounts of any type at any banking institution by a Power of Attorney, with
the fullest rights and powers to substitute any one else's name in place of his
own for the said purpose.
29. Investigations revealed that Mr. W.N. Chadha and “Q” had been
transferring the funds received from Bofors frequently from one account to
another and from one jurisdiction to another to avoid detection and to
obliterate the trial of the money.
Crores) equivalent to 20% of the contract value was disbursed by the Govt. of
India to Bofors on May 2, 1986. The balance 60% of the contract amount
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equivalent to SEK 6,728,528,787.60 was paid to Bofors during August 1986 to
1990, from time to time, against the deliveries. The investigations revealed
that an amount of SEK 242.62 million was paid by M/s. AB Bofors, as
commission, to Quattrocchi and W.N. Chadha through M/s. A.E. Services and
M/s. Svenska, in contravention of the policy of the Govt of India not to allow
middlemen/agents in the deal. No commission was to be paid by Bofors in
connection with the contract. If any such stipulation in this regard did exist,
the commission amount should have been reduced from the contract price.
Thus, the Govt. of India had to pay excess amount of total SEK 242.62
million, which was passed on by Bofors to its agents Mr. W.N. Chadha and
Mr. Quattrocchi against the express terms of contract.
31. It shall be pertinent to mention relevant dates in form of a chart
to further corelate the events and history:
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32. As against “Q”, the case of CBI is that on the basis of source
reports, report of Swedish National Audit Bureau, certain facts contained in
the report of Joint Parliamentary Committee (JPC) and the report of
Controller & Auditor General of India, it was alleged therein that during the
conspiracy with certain private persons/others, in India and abroad, and in
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Government of India and AB Bofors of Sweden for supply of guns, towed
clandestine manner to certain public bank accounts in Switzerland as “illegal
gratification” for the benefit of certain public servants of the Government of
India and their nominees. As per the chargesheet filed in the matter, the
investigation had revealed that AB Bofors had obtained contract pursuant to
entering into conspiracy with certain public servants, who were responsible
for decision making process, even though the gun system offered by them was
inferior to the other available alternatives. The investigation further revealed
that in spite of “express policy” of the Government of India, M/s AB Bofors
in conspiracy with “Q” and others appointed M/s A.E Services, UK as one of
their agents through Agreement dates 15.11.1985 to secure the contract. “Q”
was found instrumental in execution of contract with AB Bofors in November'
1985. AB Bofors were paid an amount equivalent to US $ 73,43,941.98 and
the same was credited on 08.09.1996 in their bank account, ostensibly for this
laundered further. After an interval of eight days only, the amount of US $
71,23,900.00 was transferred in two instalments of US $ 7,00,000.00 and US $
12,390.00 on 16.09.1986 and 29.09.1986 respectively to an account of M/s
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Switzerland. This account was authorised to be operated and controlled by
“Q” and his wife “Maria Quattorocchi”. At the relevant time, “Q” was
employed with M/s Snamprogetti (an Italian MNC) and was stationed in
Delhi. In the relevant document, “Q” gave a nonexistent address in Delhi. It
was further revealed that the aforesaid amount was again transferred on “Q's”
25.07.1989 in the same bank. The said company was floated in Panama on
06.08.1989 and was dissolved on 07.08.1990, indicating that this company
floated only to receive this money and used as “conduit” for paying illegal
payments through the bank accounts, which could be operated and controlled
by “Q” and his wife individually. While letter rogatory was under process,
US $ 20,000.00 was again transferred from the account of M/s M/s Wetelson
Overseas, S.A, in UBS, Geneva to InterInvestment Company for the benefit
Limited, St.Peter Port, Guernsey (Channel Islands) on 21.05.1990. As per the
chargesheet, the entire transaction of payment by M/s AB Bofors to M/s AE
commission/bribe and thus the Government of India was defrauded and put to
loss. It has been further stated that “Q” is the holder of Italian Passport and
involvement in this case has been expressed.
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33. In this case, on 22.10.1999, CBI filed a chargesheet against Shri
S.K Bhatnagar, Shri Win Chaddha, “Q”, Mr.Martin Ardbo and M/s AB
against Shri S.P Hinduja, Shri G.P Hinduja and Shri P.P Hinduja (hereinafter
referred to as “Hinduja Brothers”). Since, presence of Mr.Martin Ardbo and
“Q” was not being secured and unnecessary delay was taking place, the court
of Ld.Special Judge, vide order dated 25.05.2001 separated the trial of “Q”
and Mr.Martin Ardbo. However, later on Mr.Martin Ardbo expired and the
proceedings against him abated. Similarly, S.K Bhatnagar and Win Chaddha
also expired and proceedings against them also abated.
5323/97 (A44/21997) had been issued against “Q” on 17.02.1997, pursuant
whereto, he was arrested in Malaysia. However, vide order dated 02.12.2002,
of the Ld.Sessions Judge at Kualalampur, Malaysia, he was discharged from
the extradition case. The Court of Appeal at Kualalampur, Malaysia vide its
judgment dated 13.12.2002 upheld the order of Sessions Court. The Federal
Court of Malaysia also upheld the order of discharge of “Q” in extradition
case vide its judgment dated 30.04.2003 and as such, the attempt of CBI in
extraditing “Q” from Malaysia failed at three levels.
35. On 14.11.2002, the learned Special Judge had framed charges in
the matter against M/s AB Bofors, Shri S.P Hinduja, Shri G.P Hinduja and
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Shri P.P Hinduja. All the aforesaid persons challenged the framing of charges
against them before the Hon'ble High Court of Delhi, by way of Criminal
Misc. (Main) No.3938/03, which was disposed off by the Hon'ble High Court
vide judgment dated 04.02.2004, interalia holding as under:
xxxxx
(i) Charges for offences punishable under Sections 120B/420 IPC
and Section 5(2) r/w Section 5(1)(d) of Prevention of Corruption Act,
1947 and Section 165 A r/w Section 161 IPC against the petitioners for
cheat the Government of India and having abetted the public servants to
commit criminal misconduct by abusing their official position and taken
illegal gratification for awarding contract are quashed.
(ii) The charges that need to be framed against the petitioners P.P
Hinduja, G.P Hinduja and S.P Hinduja for the offences punishable U/s
120 B/420 IPC for having entered into a criminal conspiracy between
involved in the negotiation for the contract and further that the price
quoted was reduced price proportionate to the amount of commission
they would have otherwise paid to the agents and thereby induced the
caused wrongful loss to the Government of India to the extent of amount
they would have paid as commission to the agents viz. Hindujas, Win
Chadha and Quattorocchi.
(iii) Charge for the offence punishable U/s 465 IPC for having made
against M/s A.B Bofors.
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143. Since the cases were brought within the jurisdiction of the
Special Judge merely by including the offence punishable U/s 5(2) of
Prevention of Corruption Act, 1947 on account of criminal misconduct
contract, so as to gain pecuniary advantage to Bofors and its agents and
themselves and all other offences were triable by the Magistrate and
since the charge for this offence has been held to be unsustainable, the
order.
143. In view of inordinately procrastinated investigation, CMM shall
effectiveness of administration of criminal justice, take up the case as far
as possible on daytoday basis and try to conclude the trial and decide
evidence strictly in terms of the charges for the offences punishable U/s
120B/420 IPC against the petitioners and offence U/s 465 IPC against
M/s A.B Bofors. Parties to appear before CMM on 23.02.2004.
xxxxx
36. Pursuant to the aforesaid judgment of the Hon'ble High Court,
this court, vide order dated 26.03.2004 framed charges against Hinduja
brothers and M/s A.B Bofors U/s 420 IPC r/w Section 120 B IPC. The
aforesaid order of this court was challenged before the Hon'ble High Court by
way of Criminal Revision Petition No.271/2004, which was disposed off by
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the Hon'ble High Court vide judgment dated 31.05.2005, interalia holding as
under:
“67. From what has been noted and discussed above and on the basis
of the statements made by the prosecution, no case cane be proceeded
with in respect of the Hinduja Brothers or the Bofors Company. I,
Crl.M.AS 171/2005 & 172/2005 in Crl.Rev.272/2004, Crl.M.A 173/2005 &
174/2005 in Crl.Rev.273/2004 and Crl.M.C 763/2005. I quash all the
case. I also quash order dated 26.03.2004 of the Chief Metropolitan
Magistrate framing charges against the Bofors Company and discharge
stand discharged. The record received from the trial court be sent back
forthwith”.
37. The CBI did not challenge the aforesaid two judgments before the
Hon'ble Supreme Court and as such, the aforesaid judgments attained finality.
It transpired from submissions of “Aggarwal” that he had filed an SLP against
the judgment dated 31.05.2005, passed by the Hon'ble High Court of Delhi in
Supreme Court.
prosecution against “Q” are as under:
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(a) That 23 years have passed from the date of alleged offence and
more than 19 years have elapsed after registration of the case.
against them have been quashed, including the proceedings against M/s
A.B Bofors and the alleged beneficiaries of the contract by virtue of the
judgments of the Delhi High Court and no appeals have been preferred
by the CBI either against the order of Hon'ble Mr.Justice J.D Kapoor or
the judgment of Hon'ble Mr.Justice R.S Sodhi.
(c) Even though there is an undertaking by M/s A.B Bofors prior to
entering into the contract that they do not have any representative/agent
specially employed in India, I notice that the original contract between
M/s A.B Bofors and Government of India does not provide for any
agents. I also notice that full payments in regard to the contract have
been paid to M/s A.B Bofors even after lodgment of FIR. I find that no
steps to recover any monies were adopted against M/s A.B Bofors.
allegations of corruption or conspiracy with public servants is knocked
out.
Quattrocchi from Malaysia and Argentina have failed. I find that the
Malaysian Court has also touched upon the merits of the matter”.
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39. I have heard the learned Additional Solicitor General of India and
meticulously. However, “Gupta” stopped appearing in the matter after two or
three hearings and as such, he could not be heard completely. Now, I propose
to decide as to whether “Aggarwal” and for that matter even “Gupta” has
“locusstandi” to oppose this application in “public interest”. A perusal of
record would reveal that “Aggarwal” has challenged the judgment dated
31.05.2005 of the Hon'ble High Court of Delhi against the discharge of
“Hinduja Brothers”, before the Hon'ble Supreme Court, where his SLP is
applications from time to time as well as a Writ Petition before the Hon'ble
Court on his applications from time to time in public interest. The question
which falls for consideration of this court is whether that is sufficient for him
particularly in view of the fact that this court does not have inherent powers,
as contemplated U/s 482 Cr.P.C, whereas the Hon'ble Supreme Court has
ample powers U/s 482 Cr.P.C as also under Article 136 of the Constitution. It
is also apparent that this is neither a public interest litigation which is pending
before this court, nor this court has jurisdiction to entertain any public interest
petition, which the Hon'ble High Court has under Article 226 and 227 of the
Constitution and Hon'ble Supreme Court under Article 32 of the Constitution
has. The arguments of “Aggarwal” were that he is a public spirited citizen of
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this country and has “locusstandi” to oppose this application in the “public
interest”.
“Public Interest”.
Interest” is defined as under:
“Public Interest A matter of public or general interest does not mean
that which is interesting as gratifying curiosity or a love of information
liabilities are affected.”
42. In Black's Law Dictionary, 6th Edn., “Public Interest” is defined
as follows:
“Public Interest Something in which the public, the community at
large has some pecuniary interest, or some interest by which their legal
rights or liabilities are affected. It does not mean anything so narrow as
mere curiosity, or as the interests of the particular localities, which may
generally in affairs of local, State or National Government.”
V/s H.S Chaudhary”, the Hon'ble Supreme Court considered the scope of
“public interest litigation”.
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44. In para 26 of the aforesaid judgment, the Hon'ble Court observed
as under:
xxxxx
“26. Even if there are million questions of law to be deeply gone into
persons, it is for them alone to raise all such questions and challenge the
proper forum and not for the third parties under the garb of public
interest litigants.”
xxxxx
(Emphasis supplied)
45. Further, in para 53 of the said judgment, after considering what
is “public interest”, it was laid down as follows:
xxxxx
53. The expression “litigation” means a legal action, including all
expression “PIL” means a legal action initiated in a court of law for the
enforcement of public interest or general interest in which the public or a
class of the community have pecuniary interest or some interest by which
their legal rights or liabilities are affected.”
xxxxx
46. In para 62 of the aforesaid judgment, it was pointed as follows:
xxxxx
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private or public action in relation to any specific remedy sought for has
to be primarily ascertained at the threshold.”
xxxxx
47. In para 98 of the aforesaid judgment, it was further pointed as
follows:
xxxxx
98. While this court has laid down a chain of notable decisions with
all emphasis at their command about the importance and significance of
this newly developed doctrine of PIL, it has also hastened to sound a red
alert and a note of severe warning that courts should not allow its
processes to be abused by a mere busybody or a meddlesome interpoler
except for personal gain or private profit or other oblique consideration.”
xxxxx
(emphasis supplied)
48. In para 109 of the aforesaid judgment, it was further pointed as
follows:
xxxxx
109. It is thus clear that only a person acting bonafide and having
sufficient interest in the proceeding of PIL will alone have a locusstandi
and can approach the court to wipe out the tears of the poor and needy,
suffering from violation of their fundamental rights, but not a person for
personal gain or private profit or political motive or any other oblique
consideration. Similarly, a vexatious petition under the colour of PIL
brought before the court for vindicating any personal grievance, deserves
rejection at the threshold.”
xxxxx
(emphasis supplied)
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49. It is worth noting that H.S Chaudhary's case (supra), relates to
the controversy in the present case itself. At the relevant time, one advocate
Organisation namely “Rashtriya General Parishad” had filed a Crl. Misc.
Petition before the learned Special Judge under Article 51 (A), interalia
further prayer was made therein that he should be permitted to join during
enquiry before the Court. The learned Special Judge dismissed his aforesaid
Criminal Revision Petition before the Hon'ble High Court of Delhi, raising
multiple questions of law, challenging the legality and validity of not only the
impugned order, but also the very chargesheet and FIR in this case. Even the
Hon'ble High Court observed in its judgment that he did not have “locus
standi”. The Hon'ble Supreme Court also ruled in the matter that he did not
have the “locusstandi”. “Aggarwal” is as such, a second lawyer, who has
shown similar demeanor, as was shown by Shri H.S Chaudhary, Advocate,
who was held to have no “locusstandi” in this matter upto the Hon'ble
Supreme Court.
50. This court during the course of hearing, on various dates noticed
that on the succeeding day of each date of hearing, there would be newspaper
reports about the arguments advanced in court by “Aggarwal” and some of
the reports were even sensational, wherefrom it can be reasonably deduced
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media persons after every date of hearing and playing trumpet of corruption
in this case by public servants contrary to the judgments already passed by
Hon'ble High Court of Delhi, by supplementing his own views about the case.
It is depressing to note that on account of such trumpery proceedings before
this court, innumerable days were wasted, which time otherwise could have
been spent for the disposal of cases of genuine litigants. It is a fact that the
courts, particularly at the subordinate level are flooded with cases which
include matters involving properties worth hundreds of millions of rupees and
criminal cases in which persons sentenced to death and facing gallows under
incarceration for long years, persons suffering from undue delay in service
matters – government or private, persons awaiting disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenus expecting their release from the detention orders etc., are
all standing in a long serpentine queue for years with the fond hope of getting
into courts and having their grievances redressed, the busy bodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely
no public interest except for personal gain or private profit either of
themselves or as a proxy of others or for any other extraneous motivation or
for the glare of publicity break the queue muffling their faces by wearing the
mask of public interest litigation and get into the courts by filing vexatious
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courts and as a result of which the queue standing outside the doors of the
court never moves, which piquant situation creates frustration in the minds of
genuine litigants and resultantly, they lose faith in the administration of our
“Ashok Kumar Pandey V/s State of West Bengal”).
51. Further, in case reported as, “AIR 1952 Raj.42”, titled as, “Amar
Narain Mathur V/s The State of Rajasthan”, the Hon'ble Court observed as
under:
xxxxx
“3. .....A preliminary objection was raised by Mr.Pathak on behalf of
the State of Rajasthan and his contention was that the applicant had no
“locusstandi” and this court should not, therefore, hear his counsel.
The argument was that the applicant, Shri Amar Narain, was a complete
stranger to the proceedings and had, therefore, no right to apply to this
Court in revision. It was further urged that in a criminal case started at
the instance of the State a stranger had no right to apply to this Court in
revision when the Public Prosecutor had decided to withdraw from the
prosecution.”
Mr.Sinha for the applicant, we have come to the conclusion that the
preliminary objection is well founded, and the applicant has no right to
apply to this Court in revision in the circumstances. In criminal cases, it
is the State which is in control of the proceedings, particularly where the
prosecution is launched at the instance of the State. In cases, therefore,
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in which the Public Prosecutor appears it is for him to decide whether he
would continue with the prosecution or withdraw from it. If he decides
to withdraw, he has the power to apply to the Court U/s 494 Cr.P.C, for
giving consent to his withdrawal. This power cannot, in our opinion, be
interested directly in the case. We may, in this connection, refer to two
cases of the Patna High Court. In the first, “Gopi Bari V Emperor”,
“AIR (7) 1920 Patna 362”, a case had been prosecuted by the police U/s
143 Penal Code. At a later stage, the Court SubInspector in charge of
the prosecution applied for withdrawing from the case under Section
thereupon refused. The accused then went up to the High Court and it
was held that where a case had been started upon a police report, and
the Court SubInspector wanted to withdraw from prosecution, the Court
acted without jurisdiction in rejecting the prayer for withdrawal, simply
because the complainant wanted to proceed with the case. It is further
control the proceedings.
xxxxx
(Emphasis supplied)
52. In another case, reported as, “AIR (11) 1924 Patna 283”, titled
as, “Gulli Bhagat V/s Narain Singh”, the Public Prosecutor applied for
withdrawal from the case at a late stage. This prayer was allowed by the trial
court and thereupon the complainant came to the High Court in revision.
The revision was rejected with the following observations:
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xxxxx
prosecutor and the custodian of public peace and if if decides to let an
ground that he has not taken his full toll of private vengeance. If,
therefore, in the present case, the Court has allowed the Public
Prosecutor to withdraw the case upon insufficient or improper grounds,
the local Government, is the only authority who can take action for the
correction of that error.”
“6. The present applicant is even in a worse position than a private
prosecutor, for he is in no way connected with these five cases. What he
claims is that as a member of the public and Secretary of an Association,
these cases, which involve embezzlement of public funds in three of them
and bribery in two, should be thoroughly investigated and the guilt or
innocence of the accused, three of whom hold important public offences,
should be established in a court of law. This desire of the applicant may
standi” to come to this Court in revision. We, therefore, hold that the
intimated to the learned counsel for the applicant that we would only
hear him as “amicus curiae”.
xxxxx
(Emphasis supplied)
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“Aggarwal” passed on copies of several bundle of documents relating to this
case, which were not certified copies of the original record from the Court.
This Court made a pointed query to him to disclose the source of receipt of
those documents, to which “Aggarwal” stated that somebody from the O/o
CBI had left those documents at his office. Although, no issue on this point
was joined by CBI, however, this clearly shows that an attempt on the part of
“Aggarwal” was made to have the possession of official documents without
following the process of law. This practice has been strongly depricated by
the Hon'ble Supreme Court in case reported as, “(1998) Vol.VII SCC 273”,
holding as under:
xxxxx
“The other interesting aspect is that in the PILs documents are being
annexed without even indicating as to how the petitioner came to have
answer was given with respect to its possession. It was stated that a
packet was lying on the road and when out of curiosity, petitioner opened
it, he found the said papers. When such frivolous pleas to explain the
possession of the documents are taken, the Courts not only should
desirable for the Courts to freeze the frivolous petition and dismiss them
with costs as aforesaid, so that a message goes in the right direction that
petition filed with oblique motives do not have the approval of the
Courts.”
xxxxx
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(Emphasis supplied)
54. Some of the other judgments, which are relevant on the aforesaid
point are as under.
55. In case reported as, “1976 (1) SCC 671” titled as, “Jasbhai
Motibhai Desai V/s Roshan Kumar”, the Hon'ble Supreme Court, held that
following terms:
xxxxx
“37. It will be seen that in the context of “locus standi” to apply for a
categories:
(i) person aggrieved
(ii) stranger
(iii) busybody or meddlesome interloper.
things which do not concern them. They masquerade as crusaders for
justice. They pretend to act in the name of pro bono publico, though
they have no interest of the public or even of their own to protect. They
indulge in the pastime of meddling with the judicial process either by
force of habit or from improper motives. Often, they are actuated by a
desire to win notoriety or cheap popularity; while the ulterior intent of
applications of such busybodies at the threshold.”
xxxxx
(Emphasis supplied)
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56. Hon'ble Justice Krishna Iyer in case reported as, “1981 (1) SCC
568”, titled as, “Fertilizer Corpn. Kamgar Union (Regd.) V/s Union of
India” in stronger terms stated:
xxxxx
“48. If a citizen is no more than a wayfarer or officious intervener
without any interest or concern beyond what belongs to any one of the
660 million people of this country, the door of the court will not be ajar
for him.”
xxxxx
(Emphasis supplied)
57. Even otherwise, State is the master of litigation, which controls
the proceedings, particularly in cases where prosecution is launched at the
instance of the State. Seeking withdrawal of the prosecution from the case is
within the domain of Executive and this Court, not vested with inherent
powers cannot allow private person to come and join the proceedings. A
word of “caution” in these type of cases has already been sounded by the
Hon'ble Supreme Court in a Constitution Bench judgment, reported as, “1987
(1) SCC 288”, titled as, “Sheonandan Paswan V/s State of Bihar”, in para 90
whereof, it was held as under:
xxxxx
“90. Section 321 Cr.P.C is virtually a step by way of composition of the
offence by the State. The State is the master of litigation in criminal
cases. It is useful to remember that by the exercise of functions under
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persons does not disappear. A private complaint can still be filed if a
party is aggrieved by the withdrawal of the prosecution, but running the
possible risk of a suit of malicious prosecution if the complaint is berefit
of any basis.”
xxxxx
58. In another case, reported as, “1992 (4) SCC 653 (para 7)”, titled
as, “Simranjit Singh Mann V/s UoI”, the Hon'ble Supreme Court observed
as under:
xxxxx
“7. .....We are, therefore, satisfied that neither under the provisions
of the Code nor under any other statute is a third party stranger are
imposed by the Court after a regular trial.”
xxxxx
(Emphasis supplied)
59. Further, in case reported as, “1981 Cr.L.J 219”, titled as, “Abdur
Karim V/s The State & Ors.”, the Hon'ble Kolkata High Court held as under:
xxxxx
“In this connection, I may point out that though there is no direct
authority on the point, I am of the view that a private party has no locus
standi to move against an order of acquittal passed by the learned Judge
upon an application being made U/s 321 Cr.P.C to him by the Public
Prosecutor in a case which he was conducting. The language of Section
321 of the Code makes it quite clear that the matter is between the Public
Prosecutor and the Magistrate or the Judge concerned and a private
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party has no right to interfere in such matters. Any Public Prosecutor
or Assistant Public Prosecutor in charge of a case may, with the consent
of the Court, at any time before the Judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of any
one or more of the offences for which he is tried. The Public Prosecutor
being the “custodian of the public justice” he is the only person who can
make an application for withdrawal and, if withdrawal is granted by the
court in the interest of administration of justice, no private party can
come up against the order of withdrawal.”
xxxxx
60. In yet another judgment of the Hon'ble Supreme Court, reported
as, “1996 (11) SCC 582”, titled as, “All India Institute of Medical Sciences'
Employees Union V/s UoI”, wherein the Employees' Union of AllMS had
filed a Writ Petition before the Hon'ble High Court of Delhi, interalia seeking
committing cognizable offences punishable U/s 409 IPC, the Hon'ble High
Court refused to issue Mandamus. It was laid down that the Association had
the remedy of filing complaint case before the learned Magistrate having
jurisdiction to take cognizance of the offences, in case the police did not take
action on their complaint. The Association having not adopted the procedure
prescribed in the Cr.P.C, was not held entitled for Writ of Mandamus.
61. If the locus standi of Aggarwal and Gupta is judged on the anvil
of law laid down in the aforesaid judgments, then it would be apparent that
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he/they cannot be permitted to participate in these proceedings as a matter of
right, particularly, when he/they could have taken recourse to the remedies
available to him/them under Cr.P.C in accordance with law. It is a matter of
litigation. They further do not have any legal capacity to appear before this
Court in opposition to this application. Their only interest in this opposition
appears to be curiosity, obtaining the glare of public and publicity, which are
taking this Court through the evidence collected by the investigating agency.
matter stand dismissed, including the last application, which was filed as late
as on 03.03.2011.
62. The matter does not end here. Now, this court will have to judge
the application from the point as to whether the learned Special Prosecutor
has exercised his executive function properly and examined the matter in its
entirety and has applied his mind in good faith and bonafide manner; as also
Before that, it will have to be seen as to what is the requirement of law in this
regard.
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reproduced herein below:
321.
Withdrawal from prosecution:
The public Prosecutor or Assistant Public Prosecutor in charge of a
case may, with the consent of the Court at any time before the judgment
generally or in respect of any one more of the offences for which he is
tried; and upon such withdrawal:
accused shall be discharged in respect of such offence or offences;
(b) If it is made after a charge has been framed, or when
under this code no charge is required he shall be acquitted in respect of
such offence or offences;
1. Provided that where such offence:
(i) Was against any law relating to a matter to which the
executive power of the Union extends, or
1946 (25 of 1946), of
(iii)Involved the misappropriation or destruction of, or damage to,
any property belonging to the Central Government, or
Government while acting or purporting to act in the discharge of
his official duty, and the prosecutor in charge of the case has not
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been appointed by the Central Government he shall not, unless he
has been permitted by the Central Government to do so, move the
Court for its consent to withdraw from the prosecution and the
Government to withdraw from the prosecution.”
64. This particular Section has received scrutiny from the Hon'ble
requirement of law for consideration on application U/s 321 Cr.P.C, I wish to
refer to the precedents, which are as under.
65. In case reported as, “AIR 1975 SC 389”, titled as, “State of
Bihar Vs. Ram Naresh Pandey”, one Mahesh Desai was accused of
committing murder. Murder was stated to be committed in course of a riot
which resulted from difference between two rival trade union groups. An
(corresponding to Section 321 of the Code of Criminal Procedure 1973) was
available it would not be just and expedient to proceed with the prosecution of
Mahesh Desai. Trial Court granted permission for withdrawl. In revision, the
Session Judge also upheld the order of the Trial Court. In appeal, the Hon'ble
High Court reversed the order of the Trial Court on the ground that “there
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was exercise of no judicial discretion in the present case.” Hon'ble Supreme
Court reversed the judgment of the High Court and affirmed the order of the
prosecution of Mahesh Desai. It was inter alia observed as under:
xxxxx
“The function of the Court, therefore, in granting its consent my well be
taken to be a judicial function. It follows that in granting the consent the
Court must exercise a judicial discretion. But it does not follow that the
discretion is to be exercised only with reference to material gathered by
the judicial method. Otherwise the apparently wide language of s.494
understanding and applying the section, two main features thereof have
to be kept in mind. The initiative is that of the Public Prosecutor and
what the Court has to do is only to give its consent and not to determine
any matter judicially. The judicial function, therefore, implicit in the
normally mean that the Court had to satisfy itself that the executive
function of the Public Prosecutor has not been improperly exercised; or
that it is not an attempt to interfere with the normal course of justice for
illegitimate reasons or purpose.”
xxxxx
66. Further in case reported as, “(1972) 1 SCC 318”, titled as, “M.N.
charged for offences under Section 467, 478, 420 read with Section 109 of
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seeking withdrawal from the prosecution of accused persons. Withdrawal
was sought on following grounds:
(i) No likelihood of case being successful.
(ii) Interest of public policy.
(iii) Subject matter of case decided in a civil suit.
(iv) Delay in trial.
(v) Securing evidence involves heavy expenses for State.
(vi) Case is of civil nature.
prayed for. Order of Ld. Session Court was upheld by the Hon'ble High
Court as also by Hon'ble Supreme Court. In para 5 of the judgment, Hon'ble
Supreme Court observed as under:
“5. Though the Section is in general terms and does not
circumscribe the powers of the Public Prosecutor to seek permission to
implicit in the grant of the power is that it should be in the interest of
administration of justice which may be either that it will not be able to
predicate as they are dependent entirely on the facts and circumstances
extraneous to the interest of justice or that offences which are offences
against the State go unpunished merely because the Government as a
withdraw from the prosecution and the Public Prosecutor merely does so
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at its behest”.
67. In case reported as, “(1976) 4 SCC 250”, titled as, “State of Orissa
Vs. Chandrika Mohapatra”, two appeals were decided by a common judgment.
In the first appeal withdrawal was sought on the ground that it would be
inexpedient to proceed with the case and that there was meager evidence
against the accused persons. Trial Court held that the first ground i.e,
inexpedient to prosecute was not a sufficient ground to permit prosecution to
withdraw from the prosecution. However, Trial Court agreed with the public
prosecutor that there was insufficient evidence against the accused persons
and thus granted permission for withdrawal. Hon'ble High Court set aside the
order of the Trial Court. Reversing the order of the Hon'ble High Court and
observed as under:
xxxxx
“6. It will, therefore, be seen that it is not sufficient for the Public
prosecution. He has to make out some ground which would show that
prosecution may not be able to produce sufficient evidence to sustain the
charge or that the prosecution does not appear to be well funded or that
there are other circumstances which clearly show that the object of
administration of justice would not be advanced or furthered by going on
with the prosecution. The ultimate guiding consideration must always
be the interest of administration of justice and that is the touchstone on
which the question must be determined whether the prosecution should
be allowed to be withdrawn.”
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xxxxx
(Underlining emphasized)
68. Second case was result of a serious rivalry between two trade
unions in an industrial unit. Accused persons were charged for offences under
Sections 147, 148, 149, 307, and 324 of Indian Penal Code. Application for
prosecutor. Withdrawal was sought on the ground that since the date of
harmony and that withdrawal would help maintain cordiality between rival
trade unions. Ld. Sessions Court granted the permission sought for. Hon'ble
Supreme Court upheld that order of the Ld.Session Court. In para 10 of the
judgment, Hon'ble Supreme Court observed as under:
xxxxx
“10. We have already discussed the principles which should govern
cases of this kind where an application is made by the Public Prosecutor
for grant of consent to the withdrawl of prosecution under Section 494 of
the Criminal Procedure Code. We have pointed out that the paramount
consideration in all these cases must be the interest of administration of
justice. No hard and fast rule can be laid down nor can any categories of
cases be defined in which consent should be granted or refused. It must
ultimately depend on the facts and circumstances of each case in the
light of what is necessary in order to promote the ends of justice, because
the objective of every judicial process must be the attainment of justice.
Now, in the present case, the application made by the Public Prosecutor
clearly shows that the incident had arisen out of rivalry between two
trade unions and since the date of the incident calm and peaceful
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circumstances, the State felt that it would not be conducive to the interest
of justice to continue the prosecution against the respondents, since the
prosecution with the possibility of conviction of the respondents would
rouse feelings of bitterness and antagonism and disturb the calm and
cause behind it and if the State feels that the elimination or eradication
of the social or economic cause behind it and if the State feels that the
elimination or eradication of the social or economic cause of the crime
should clearly be at liberty to withdraw from the prosecution. We are,
therefore, of the view that in the present case the learned Sessions Judge
was right in granting consent to the withdrawal of the prosecution and
the High Court was in error in setting aside the order of the learned
Sessions Judge”.
xxxxx
69. In case reported as, “AIR 1980 SC 1510”, titled as, “Rajender
Kumar Jain Vs. State of Bihar”, 25 accused were charged for offences under
Section 121A, 120B Indian Penal Code read with Section 4,5, and 6 of the
Withdrawal was sought on the following grounds:
i) Two accused were granted pardon by the Court
and were examined as approver under section 306 Sub
Section 4 Cr.P.C.
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ii) That out of 25 accused persons, two accused were
declared proclaimed offenders by the court.
circumstances, the Central Government has desired to
persons.
Metropolitan Magistrate. It was inter alia observed as under:
“13. Thus, from the precedents of this Court; we gather,
1. Under the scheme of the Code prosecution of an offender for a
serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of
the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the
Public Prosecutor and none else, and so, he cannot surrender
that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he
may withdraw from the prosecution but none can compel him to
do so.
5. The Public Prosecutor may withdraw from the prosecution not
relevant grounds as well in order to further the broad ends of
public justice, public order and peace. The broad ends of public
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we add, political purposes Sans Tammany Hall enterprise.
6. The Public Prosecutor is an officer of the Court and responsible
to the Court.
consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the
Public Prosecutor to request withdrawl from the prosecution but
the consider whether the Public Prosecutor applied his mind as
considerations. The Court has a special duty in this regard as it
prosecution.
inform the Court and it shall be the duty of the. Court to appraise itself
of the reasons which prompt the Public Prosecutor to withdraw from the
theadministration of criminal justice and so has the Public Prosecutor,
its 'Minister of Justice'. Both have a duty to protect the administration
of criminal justice against possible abuse or misuse by the Executive by
resort to the provisions of Section 321 Criminal Procedure Code. The
independence of the Judiciary requires that once the case has travelled
to the Court, the Court and its officers alone must have control over the
case and decide what is to. be done in each case.
We have referred to the precedents of this Court where it has
been said that paucity of evidence is not the only ground on which the
Public Prosecutor may withdraw from the prosecution. In the past we
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have often know how expedient and necessary it is in the public interest
for the Public Prosecutor to withdraw from prosecutions arising out of
mass agitations, communal riots, regional disputes, industrial conflicts,
student unrrest etc. Wherever issues involve the emotions and there is a
surcharge of violence in the atmosphere it has often been fund necessary
atmosphere from the surcharge of violence, to bring about a peaceful
settlement of issues and to preserve the calm which may follow the
storm.....
xxxxx
70. In case reported as, “AIR 1983C 194”, titled as, “Sheonandan
Paswan Vs. State of Bihar”, accused persons were charged for offences
under Secion 420, 466, 471, 109, 120 B Indian Peanl Code read with Section 5
(2) of Prevention of Corruption Act withdrawl from prosecution was sought
on following grounds:
i) Lack of prospect of successful prosecution.
ii) Implication of persons as a result of political and
personal vendetta.
iii) Inexpediency of prosecution for reasons of State
and Public Policy.
changed situation.
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prosecution. Revision filed by the appellant was dismissed by the Hon'ble
High Court. Majority judgment of the Hon'ble Supreme Court upheld the
order of learned Special Judge. It was interalia observed as under:
xxxxx
“58. The next question' for examination is whether the permission
was given by the Special Judge in violation of law as laid down by this
Court in this regard. We have already referred to the decisions cited by
the appellant. The law laid down by this Court in the series of decisions
referred to above, inter alia, is (1) that the withdrawl from the
prosecution is an executive function of the Public Prosecutor and that
the ultimate decision to withdraw from the prosecution is his ; (2) that
the Government may suggest to the public prosecutor that a particular
case may not be proceeded with, but nobody can compel him to do so ;
(3) that not merely inadequacy of evidence, but other relevant grounds
political; public order and peace are valid grounds for withdrawal. The
exercise of the power to accord or withdraw consent b y the Court is
discretionary. Of course, it has to exercise the discretion judicially. The
exercise of the power of the court is judicial to the extent that the Court,
in according or refusing consent, has to see (i) whether the grounds of
withdrawl are valid; and (ii) whether the application is bona fide or is
collusive. it may be remembered that the order passed by the Court
under Section 321 of the Code, either according or refusing to accord
consent, it not appealable. A mere perusal of the impugned order of the
Special Judge shows that he has applied his mind to the facts of the case
and also applied his mind to the law laid down by this Court in George
Fernandes case that has summarised the entire law on the point, and
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correctly applied them to the facts of this case. It is therefore not correct
to say that the decision of the Special Judge was contrary to the law laid
down by this Court.
84..... The only guiding factor which should weigh with the public
prosecutor while moving the application for withdrawal and the court
according its permission for withdrawal is to see whether the interest of
public justice.
87. The Court while according the consent to the withdrawal has
only to see that the public Prosecutor has acted properly and has not
function of the Court to make a fresh appraisal of the evidence and
come to its own conclusion on the question whether there is a triable
issue to be investigated by the Court.
xxxxx
(Underlining emphasized)
71. Earlier decision of the Hon'ble Supreme Court in
Majority judgment upheld the earlier decision. It was inter alia observed as
under:
xxxxx
“45.....The judgment of a Public Prosecutor under Section 321 of the
Crimianl P.C 1973 cannot be lightly interfered with unless the Court
comes to the conclusion that he has not applied his mind or that his
decision is not bona fide.
67.....When an application under Section 321 Cr.P.C is made, it is not
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necessary for the Court to assess the evidence to discover whether the
case would end in conviction or acquittal. To contend that the Court
when it exercises its limited power of giving consent under Section 321
has to assess the evidence and find out whether the case would end in
would be to concede to the Court a power which the scheme of Section
Section 321 is ot the same as the normal final orders in criminal cases.
ground lessness in the case of discharge. All that the Court has to see is
whether the application is made in good faith, in the interest of public
policy and justice and not to thwart or stifle the process of law. The
Court, after considering these facts of the case, will have to see whether
the application suffers from such improprieties or illegalities as to cause
manifest injustice if consent is give. In this case, on a reading of the
application for withdrawl, the order of consent and the other attendant
withdrawl and the order giving consent were proper and strictly within
the confines of Section 321 Cr.P.C.
70.......The section gives no indication as to the grounds on which the
Public Prosecutor may make the application, or the considerations on
which the Court is to grant its consent. The initiative is that of the
Public Prosecutor and what the Court has to do is only to give its consent
and not to determine any matter judicially. The judicial function implict
in the exercise of the judicial discretion for granting the consent would
normally mean that the Court has to satisfy itself that the executive
function of the Public Prosecutor has not been improperly exercised, or
that it is not an attempt to interfere with the normal course of justice for
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illegitimate reasons or purposes.”
xxxxx
(Underlining emphasized)
72. The gist of entire discussion is that power of Court U/s 321 of
Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly
applied his mind or that his decision is not bona fide. (As held in the decision
Preet Public Secondary School”.)
73. Therefore, from the scrutiny of the aforesaid judgments, some of
the grounds for withdrawal of criminal case, as recognised by the Hon'ble
Supreme Court can be enumerated as follows:
(i) Broader consideration of public peace;
(ii) Larger consideration of public justice;
(iii) Promotion of long lasting security in a locality;
(iv) Halting of a false vexatious prosecution;
(v) Consideration of public policy;
(vi) Purpose of law and order;
(vii) Advancing social harmony;
(viii) Inexpendiency of prosecution for reasons of State;
(ix) Injustice to accused in case prosecution is continued and;
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(x) All other similar and cogent grounds.
(Underlining emphasized)
74. The above list is illustrative and not exhaustive of the grounds on
which the application U/s 321 Cr.P.C can be made. It is not intended to limit
the considerations on the basis of which the Public Prosecutor can move
application under the said provision.
grounds on the basis of which withdrawal from the prosecution of “Q” has
been sought in the instant case.
76. It may be noted that the FIR in this case was registered on
22.01.1990, whereas the Letter of Intent for supply of Bofors Guns was issued
by Government of India in favour of M/s A.B Bofors on 14.03.1986. As such,
the case has been pending for more than 21 years now and from the date of
alleged contract more than 25 years have elapsed. All the other accused
persons, except “Q” have either died or proceedings against them have been
“quashed”, including the proceedings against M/s A.B Bofors.
77. The Hon'ble High Court of Delhi in judgment dated 04.02.2004
in Crl.Misc. Case No.492/2003, went into the details of the contract, the
aspect of conspiracy, the nonjustifiability of the case against public servants
as also the utility of Bofors Guns in detail. I do not wish to go into the matter
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observations of the Hon'ble High Court in the aforesaid judgment, which hold
the field and are decisive for the consideration on this application.
78. I would like to quote some important paragraphs of the judgment
of Hon'ble High Court of Delhi, dated 04.02.2004, passed in Crl.Misc. Case
No.492/2003, which are as under:
xxxxx
investigative jounalism during which period large number of officers
of CBI hopped to foreign countries every now and then to collect the
evidence against public servants but returned empty handed as till
date there is no evidence to show that public servants had taken bribe
in awarding the contract of guns to M/s. A.B Bofors & Co. either
tracing the Swiss accounts of “Commission Agents” employed by M/s
A.B. Bofors wherein illegal payments received by them from Bofors as
commission were deposited.
7. This case is a nefarious example which manifestly demonstrates
how the trial and justice by media can cause irreparable, irreversible
and incalculable harm to the reputation of a person and shunning of
humiliated and convicted without trial. All this puts at grave risk due
administration of justice.
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journalism and publicity of premature, half baked or even presumptive
facets of investigation either by the media itself or at the instance of
Investigating Agency has almost become a daily occurrence whether by
electronic media, radio or press. They chase some wrong doer, publish
material about him little realizing the peril it may cause as it involves
substantial risk to the fairness of the trial. Unfortunately we are getting
used to it.
encouraging publicity by holding press conference and accompanying
journalists and television crew during investigation of a crime needs to
be stopped as it creates risk of prejudice to the accused. After hogging
publicity and holding the person guilty in the eyes of public, police and
CBI to into soporofic slumber and take years in filing the charge sheet
and thereafter several years are taken in the trial.
publicity those who know about the incident may come forward with
information, it prevents perjury by placing witnesses under public gaze
and it reduces crime through the public expression of disapproval for
crime and last but not the least it promotes the public discussion of
communication and right of information little realizing that right to a
recognized by the European Court of Human Rights.
accustomed to the regular spectacle of pseudo trials in the news media
might in the long run have nefarious consequences for the acceptance
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of the courts as the proper forum for the settlement of legal disputes.”
11. There is nothing more incumbent upon courts of justice than to
preserve their proceedings from being misrepresented than to prejudice
the minds of the public against persons concerned before the cause is
finally heard. The streams of justice have to be kept clear and pure.
The parties have to proceed with safety both to themselves and their
character.
such protection there would be trial by media which no civilised society
can and should tolerate. The functions of the court in the civilised
quote the words of wisdom of Chief justice Lord Taylor as to the impact
upon the victim of a press campaign.
“We would lime to stress that, whilst the press are the
guardians of the public interest, to pursue a campaign of vilification of
someone who has been before the court, in a way which causes hate
mail to be sent, which causes his family to be under the need to move
house, which causes his children to be shunned by other children in the
misguided.”
80. Similarly Quattrocchi also held the money in his own account
opened by him. To allow the imagination to fly that AB Bofors paid
bribe to public servants through Hindujas, Chadha and Quattrocchi
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to get the contract and in return they held the amount of alleged
“commission” paid by AB Bofors as a trust for more than a year or
so is nothing but to deceive oneself. This itself rends the CBI's case
from foundation to cornice.
81. Had element of 'bribe' been involved in awarding the contract,
the need for involving three agents would not have arisen. Was money
of bribe being divided in three parts through three different persons.
Hindujas or Quattrocchi or Chadha. In this case all the three. What an
inference! CBI was right in not including the offence of taking bribe
either by the public servants or Hindujas, Quattrochi having held the
monies received by them from Bofors as a trustee for public servants
as it was not equipped with any material or evidence nor did it obtain
sanction for this offence which is punishable under Section 161 IPC.
monies received by the Agents as trustee, CBI like a drowning person
clutched a flimsy straw by introducing the doctrine of “misusing an
official position” by way of inducting even an element of “conspiracy”
which is unknown to such a penal offence purely on the conjectural and
inferential premise that by hastening the decision in favour of Bofors
and without considering the offer of a rival viz. “Sofma” that too made
subsequent to the letter of intent was issued in favour of Bofors the
public persons had misused their official position.
85. On the face of it such a theory is difficult to ram down the
throat for the simple reason that when the contenders were short listed
and called upon to give the undertaking that they would neither involve
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would even otherwise have paid to their Agents they requoted their
reduced price and Price Negotiating Committee comprising of several
members though headed by late S.K. Bhatnagar had no other option
than to decide in favour of Bofors whose gun had not only edge over as
to its quality and peculiar feature of “shoot and scoot” but at relevant
time cheaper in price also. It was after Letter of Intent (LOI) was
reduce the price further. Though it was too late yet the price in terms of
money was higher as Bofors scaled down its height by offering ten guns
free.
86. Let us assume that “Sofma” price was cheaper though reduced
when the stage was over, still the Expert Committee's opinion as to the
preference of Bofors could not and ought not have been ignored even if
it was little costlier. Security of a nation cannot be jeopardised for a
few bucks here or there. Life of a soldier is more precious and cannot
be bartered like this. By no stretch of imagination such a decision can
be termed either as hasty decision as the material exercise took more
than a year or tainted decision as element of illegal gratification is not
only utterly wanting but has also not been alleged by the CBI and
rightly so as not a shred of evidence has surfaced uptil this day.
87. If decision making authorities be in any field are prosecuted
like this, no authority, no person would take decision nor would dare to
take decision. However, it does not mean that the element of illegal
gratification cannot exist in deserving cases. Possibility of procuring
award of even of well deserving contract through illegal gratification to
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be persons involved for taking decision cannot be ruled out. Offence of
considerations. But the condition is that like any other offence, offence
of “illegal gratification” has to be proved by way of evidence even if it
gives rise to “strong suspicion” because of available material in trying
a person for this offence. As has been observed above not even a trace
of evidence has surfaced inspite of stupendous efforts made by CBI
whose officers sojourned to Switzerland and other countries for several
years to dig out the material but all in vain.
95. It is clear from the evidence that the user of the armament
namely the Army had the ultimate decisive voice and therefore
allegation of selecting a less qualitative and more expensive has no
basis. It was the technically expert opinion of the Army that the
Government should go for Bofors' because of its peculiar feature of
“shoot and scoot”. None of the public servants had any role in
selecting the gun.
96. After 17.2.1986 when the Army indicated its choice, finally
Committee and expressed its stand that even if Bofors gun is costlier,
that is the gun which the Army wants, it was obvious that if the army
experts.
97. The element of illegal gratification as envisaged under Sections
161 is according to the prosecution case itself utterly wanting inasmuch
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as that there is no evidence that the official report of the Army in
corrupt or illegal means. Since the best judge of the weapons to be used
by the Government is the Army or its Committee or Technical Experts
the Government had no business or role to overrule that decision.
negotiating the price acting on the premise of the report of the Army
which gave its report on 17th February, 1986 to the effect that Swedish
Bofors has a clear edge over the French Sofma. The report was
submitted by the Deputy Chief of the Army Staff which was approved
finally by the Chief of the Army Staff.
98. Unless there is a corrupt motive imputed to the choice in favour
of one Gun or the other even if it is costlier price wise but quality wise
peculiar feature of “shoot and scoot” the offnece under section 161
IPC does not attract and nowhere the prosecution has levelled these
motives. Merely because the Sofma's offer of reducing the price came
immediately after the letter of intent had already been issued to Bofors
cannot lead to any inference that the decision in favour of the Bofors
was with ulterior motives or by accepting bribe etc.
99. It is not the case of CBI that Bofors or Hindujas or Quattrochi
servants under the garb of “commission” and that the bribe money
allegedly paid by the Bofors was retained by Hindujas or others as
custodians. Until and unless the money in the account of Hindujas and
others is related to the bribe money to the public servants, charge for
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abetting in receiving the bribe punishable under section 161 read with
section 165A IPC cannot stand or stick.
107. The only argument of the CBI is that presumption should be
drawn that the haste with which the contract was awarded was a result
of the conspiracy between Hindujas, Quattrocchi, Bofors and the public
servants to award contract in favour of Bofors prior to the visit of Rajiv
Gandhi to Switzerland. The prosecution has not brought anything on
record as to what different role was played by the members of the
Negotiating Committee than the role played by Mr. Bhatnagar. Thus,
the element of dishonest intention is utterly wanting.
thing being equally important. France was also a supplier of arms to
Pakistan. In case of need the supply of Sofma could have squeezed.
111. So far as the allegations that Sh. Rajiv Gandhi requested the
1997 it is of no significance as it was done on account of a decision
taken by the Cabinet Committee of Political Affairs after deliberating
the issue that since the Joint Parliamentary Committee was going to
enquire into the matter it would be not proper for officers of the
Ministry to meet the Bofors's Officers. As regards the haste in issuing
the letter of intent though there was no cut off date for the price
negotiating committee but still Mr. Bhatnagar informed Mr. Arun Singh
about the offer of Sofma after the issuance of letter of intent, Mr. Arun
Singh felt that issuance of letter of intent should not come in the way of
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consideration of offer of Sofma and it was on his advice that Bofors
was asked to revise its offer and once the Bofors agreed to give 10 guns
free its price got reduced from that of Sofma. It was only after 12 days
ie. On 24th March, 1986 that the contract was signed with M/s AB
Bofors. So far a General Sunderji' plea for cancellation of the contract
is concerned it was on the moral ground and not from commercial or
technical aspects.
reduction in price amounts to not only deception but fraudulently or
dishonestly inducing the Government of India to do an act that caused
broke Rupees 64 crores had been paid and such an act does come
within the mischief of Section 120B and Section 420 ICP qua the
petitioners and for that purpose Martin Ardbo and Quattrocchi.
xxxxx
(Emphasis supplied)
273/2004, the Hon'ble High Court considered the effect of the copies of the
documents received by CBI pursuant to the execution of Letter Rogatories,
issued by this court in this matter, which are as under:
xxxxx
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33 . The disputed photo copies do not qualify as certified copies for
the following reasons :
(a) That the Ministry of Justice does not claim to have original in
its possession.
(b) The officer who has initialed them neither had nor even claims
the custody of the originals.
(c) There is no certificate written at the foot of the copy that it is
true copy of any other document.
(d) There is no date and there is no name and official title of the
officer.
(e) There is, however, a seal of the Ministry of Justice of which I
cannot take judicial notice;
(GS.IV) av 860324” are in the handwriting of somebody. Unless the
person who wrote those words is identified and it is proved that his
position is such that his writing those words proves the truth of the
chance of the successful termination of such a useless prosecution. It
was for this reason, I thought of giving the CBI an opportunity to bring
the case back on rails. As already noted, the CBI has spurned the offer.
capable of being converted into evidence as defined in the Evidence
Act. No material exists on the record which will bring about this result.
The word 'evidence' in Section 166A is used in the general sense of
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something which may have some probative value if capable of being
converted into evidence as defined in the Evidence Act. It is fallacious
to treat it as evidence for the purpose of the eventful trial.
collected from abroad during the course of the pending investigation.
The investigation was over when the second chargesheet was filed on
16.08.2001.
56. Let me again summarise. If these documents have come from
the Department of Justice, these documents will be private documents
which form the record of public officers of a foreign country in which
event they are 'public documents' as defined in Section 74(1) (iii) of the
Indian Evidence Act. They can be proved only under Section 78 clause
circumstances, these documents can never be proved.
57. If I assume that these documents are not 'public documents' at
all as defined in the Evidence Act but private 'documents' then they
have to be proved like any other document. Not only their execution has
to be proved but the truth of the contents of the documents has to be
proved. No such material exists to prove these as 'private documents'.
61. The CBI failed to produce the original documents. The Bofors
direction that the prosecution must produce the original documents for
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application, the learned Magistrate on 26.03.2004 proceeded to frame
section 465 IPC since the learned Magistrate was bound to do so by the
Company moved yet another application on 07.06.2004 for production
before the learned Magistrate to the effect “that the original documents
sought to be perused by the Bofors Company are not available with the
CBI.” This statement was incorporated in the order dated 14.10.2004 of
the learned Magistrate.
sought to be kept secured by an earlier order. The learned Additional
from the Ministry of Justice, Sweden, which reads as under :
Stockholm. These documents were subsequently stamped and signed at
the request of Indian Authorities.”
PW96 and PW97 with the note “Statements of aforesaid witnesses
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have not been recorded as they are formal witnesses for handing over
of documents etc.” was filed.
submitted that it has been established that the CBI are not in a position
to produce the original documents in question in court nor are they in a
sustained.
65. Counsel seeks to rely upon the arguments made in the Hinduja
absence of certified copies or originals of the documents alleged to
have been forged. The learned Additional Solicitor General has chosen
not to address arguments in the case advanced by the Bofors Company
copies is common and would govern both the cases. The question of
judgment, the conclusion is but obvious.
Investigation that went on for 14 years and I was given to understand
that it cost the Exchequer nearly Rupees 250 crores. During the
investigation a huge bubble was created with the aid of the media,
which, however, when tested by court, burst leaving behind a disastrous
political and professional were ruined besides causing huge economic
loss. Many an accused lived and died with a stigma. It is hoped that
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this elite Investigating Agency will be more responsible in future ...........
xxxxx
(Emphasis supplied)
80. From the joint reading of the aforesaid two judgments, which are
binding precedent upon this court, with regard to the facts as also the law
applicable in the matter, would reveal that despite spending through its nose
for about 21 years, the CBI has not been able to put forward legally
sustainable evidence with regard to conspiracy in the matter. Further in
case of “Q”, as against the alleged kickback of Rs.64.00 Crores, the CBI by
the year 2005 had already spent around Rs.250.00 Crores on the
investigation, which is sheer wastage of public money.
81. While we are busy in discussing the Sensex and scams, India's
poorest are barely surviving, thanks to an appalling governance deficit. In
some areas of our country, we have no electricity, no roads, no proper water
facilities; 50% of India lives on less than US $ 2 a day; 100 million childen go
to bed hungry every night; 62% live without electricity and in some of the
places, there are no shops, no dispensaries and merely there is an apology of
verandah. There are little scrubs of farmlands where “tuar and chana”
plants precariously survive. The village lives in darkness; its children are
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taught to play in the dark. Food is cooked during the day, eaten by the light
kerosene, 10 minutes is all they get to finish dinner. The nearest medical
facility is 30 KM away. Pregnant women prefer to give birth in their huts
rather than travel two hours on the bumpy dirt track to the nearest public
health centre. They know the journey can lead to a hamorrhage and death,
health centre. This situation has been the same in some parts of the country
since 1947. Above are the views expressed by an author in respect of
“Rehatyakheda village” in Amravati District, Maharashtra. I presume, the
conditions in various other parts in India are somewhat similar or even worse.
It is common knowledge that farmers in some places in India are committing
suicides because they do not find it easy to have one meal a day, what to talk
of availability of other civil amenities which are required for the existence of
human being in a dignified manner. The very question which stares us at our
faces is whether it is justified for the Government of India (CBI) to continue
to spend on the extradition of “Q”, which may or may not ultimately happen
during his lifetime. Can we allow this hard earned money of “Aam Aadmi”
of India to be spent on these type of proceedings which are not going to do
any good to them, after almost 25 years of the so called “Arm Deal”. The
answer would be a big “NO”. From the contents of the application, I find that
the learned Prosecutor has applied his independent mind on this aspect and
has chosen to treat it as one of the grounds for withdrawal of prosecution
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against “Q” and the same is clearly in larger public interest.
extraditing “Q”, one in Malaysia and other in Argentina have failed. I have
gone through the judgments passed by the Malaysian Courts as also by the
Argentian Courts.
ORDERS OF MALAYSIAN COURTS
observed as under :
“ In the final analysis it is my decision that a proper description of the
offences committed by the subject have to be tendered in Court. The
failure to do so amounts to noncompliance of the Law. I will go as far
as to say under such circumstances the tendering of charges would have
been preferable. Further, it is my observation that the burden lies with
the requesting countries to produce this description of the offences as
they are in the best position to know the exact offences committed if any
by the subject.
proceeding upon which his bail and all condition attached to the bail
be also discharged.
The matter then went up the Court of Datuk Augustine Paul,
Judge, High Court, Kuala Lumpur who delivered his judgment on 13 th
December, 2002 and upheld the lower court's Judgment. It is relevant
to note that the Ld. Judge examined the evidence produced by the CBI
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to find out if an offence of cheating was prima facie made out. The
following is quoted from the judgment of Datur Augustine Paul—
xxxxx
I will first deal with the offence of cheating. The thrust of this offence is
the receipt of money by the Respondent following the appointment of
consultants of Bofors since the appointment of agents was prohibited.
However, it must be observed that paragraph 13 of the “chargesheet”
Government did not approve of the appointment of Indian agent acting
for foreign supplies.”
The prohibition is therefore only of the appointment of Indian agents.
As AE Services Limited is United Kingdombases their appointment
Government of India and Bofors some two weeks after the imposition
of the prohibition has the effect of negating it. It reads as follows :
Enclosures and Clauses shall be harmoniously construed. The Parties
have executed this Contract on the basis that the provision in the
This Contract sets forth the entire undertaking of the Parties in respect
agreements, arrangements, representations or undertaking relating to
the subject matter thereof.”
If the prohibition has been superseded by the agreement it ceases to be
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one. It cannot therefore be the foundation for the offence of cheating.
learned counsel for the Respondent, did not find their way into the
reply by the prosecution. When I invited the prosecution and the two
counsel to submit on them there was no positive response worthy of
consideration. These facts cannot therefore be termed or treated as
particulars for the offence of cheating in lieu of a charge therefore. In
the circumstances it is not possible to discern the particulars for the
offence of cheating from the documents made available.”
The Malaysian High Court held as under:
“Without the charges or , in the alternative, proper particulars of the
offences the inquiry before the Sessions Court just could not have
started. In the upshot it is my view that failure to supply the Court and
the Respondent with the charges is fatal. The ruling made by the
learned Sessions Court Judge on the preliminary objection raised by
the Respondent is therefore correct in law. Accordingly, I confirm the
order of discharge made by him and dismiss this application...”
st
Finally, the judgment of the Federal Court of Malaysia on 31 March,
2004. The concluding paragraph No.97 is quoted :
therefore, hold that no appear lies to this court. As such, we decline to
Accordingly, we dismiss the appeal with costs.”
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judgment dated 12.09.2007 held the extradition proceedings to be for political
reasons. The learned Judge specifically stated that the investigation in the
matter was conducted after the political party of the former Defence Minister
of India and Prime Minister Shri Rajiv Gandhi could not form a Government
in the general elections and the charges were recorded hastily after the new
Government took office and used the “Bofors” case as a weapon by the
political parties during the general elections of the country.
84. The learned Judge quoted with approval an earlier precendent in
the matter to brand the extradition of “Q” sought for by the Government of
India, as political persecution. In the words of Judge:
“Political persecution implies to assert, tacitly, that the requesting State
fully believing of the existence of a concealed intention”.
Solicitor General of India that the Red Corner Notice was withdrawn against
“Q”, after the approval of Attorney General of India, as it was impinging very
heavily upon the exchequer. A joint reading of the judgments of both the
countries would reveal that on facts of case, both the countries expressed that
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terms of the agreement between the Government of India and M/s A.B Bofors
did not prohibit the induction of foreign agents in the contract and in any case,
if there was a violation of any term of contract, that only leads to civil
consequences and not penal consequences.
countries, who at the time of considering extradition applications considered
the merits of the case as well. He has further submitted that if the proceedings
are allowed to continue on an unending note, then that would only amount to
continuation of charge on the exchequer with no hope of any fruitful result
being produced in the matter. On this account also, I find that the learned
Special Prosecutor has applied his independent mind and considered the
matter on the aforesaid lines.
87. Therefore, the decision of the learned Special Prosecutor of CBI,
seeking withdrawal of prosecution against “Q” on the face of it appears to be
bonafide and in the larger public interest. Accordingly, the learned Special
Consequently, “Q” stands discharged from this case.
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necessary formalities and after expiry of the limitation period of challenging
this order by any of the parties, the record be sent back to the Hon'ble
Supreme Court of India.
Announced in the open court (Vinod Yadav)
on 04.03.2011 Chief Metropolitan Magistrate:
Delhi
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