TMI Blog1992 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on the earlier occasion and resulted in the pronouncement of an order dated 27th August 1991, giving only the conclusions and the final judgment on 28th August 1992 vide Janta Dal v. H.S. Chowdhary the decisions of which were rendered by this Bench. 3. The synoptical resumption of the case of the prosecution leading to the initiation of the proceedings inclusive of the organic synthesis of the events and the circumstances veering the case have been encapsulated and presented in the order and judgment of this Court rendered in the first round of the batch of appeals. Nonetheless, to assimilate the controversial issues both legal and factual involved, we would like to give a terse sketch, shorn of the detailed facts of the case, as borne out from the records, which has given rise to this appeal. 4. The respondent, namely, W.N. Chadha who is now residing at Dubai in United Arab Emirates (UAE) had his first agreement in 1978 with M/s. A.B. Bofors (hereinafter referred to as 'Bofors') to provide representation services to it in India with regard to supply of arms and ammunition to Indian Government. The terms of the said representation services agreement were extended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions, all the four firms submitted fresh commercial offers on 10th May 1985. Thereafter, members of the Negotiating Committee requested the Army Headquarters to give their recommendations of the guns acceptable to them taking into account the technical aspects, delivery schedule etc. and clearly indicate their preference from amongst the acceptable guns. The then Deputy Chief of the Army Staff told the committee that the French gun was the best and the Swedish gun was the second best and that if the price difference was marginal, they should go for the former, The recommendations of the Army Headquarters to shortlist only M/s. Sofma of France and M/s. A.B. Bofors of Sweden for further negotiations were accepted by the Negotiating Committee which, however, felt that the choice between the two was open and it would depend on a combination of technical and financial considerations. The above two shortlisted firms were called for negotiation in the middle of December 1985. Three ammunition manufacturers were also called in the middle of January 1986. The commercial, contractual and technical aspects of purchase and licence production were negotiated with the said two firms. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver they may be punished. A similar statement was also made by the Minister of State for Defence in the Rajya Sabha on 21st April 1987. 11. This issue created furore both in the Lok Sabha and the Rajya Sabha. Several issues were raised by the Members of both houses not only with regard to the alleged kickbacks paid by Bofors for winning the contract but also about the quality and suitability of the gun selected for procurement. 12. On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister of India intervening in the debate in the Lok Sabha reaffirmed the statement of Minister for Defence in the following words: ...And like Panditji has said now, you show us any evidence, we do not want proof. We will bring the proof. You show us any evidence that there has been involvement of middlemen, of payoffs or of bribes or commissions, we will take action and we will see that nobody however high-up is allowed to go free. 13. Again the then Minister for Defence made the assurance based on the statement of the then Prime Minister. 14. A demand was made by the Members of both Houses - Lok Sabha and Rajya Sabha - to make a probe into the matter by a Parliamentary Committee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 409, 420, 468 and 471 of the Indian Penal Code against 14 accused of whom three are named, they being (1) Shri Martin Ardbo, former President of M/s. A.B. Bofors, Sweden, (2) Shri Chadha alias Win Chadha, S/o Shri Assa Nand, President of M/s. Anatronic General Corporation/Anatomic General Companies Ltd., C/4, Main Market, Vasant Vihar, New Delhi and Shri G.P. Hinduja, New Zealand House, Hay Market, London SW-1. The rest of the 11 accused are stated in general as Direetors/employees/holders/beneficiaries of account code and public servants of the Government of India. The prefatory note of the First Information Report reveals that the case was registered on the basis of reliable information received from certain sources, certain facts and circumstances that have become available, media reports, report dated 1st June 1987 of the Swedish National Audit Bureau (SNAB), certain facts contained in the report dated 22nd April, 1988 of the Joint Parliamentary Committee (JPC) and the report dated 28th April, 1988 of the Comptroller and Auditor General of India (CAG) . The First Information Report gives a detailed sequence of the events relating to the purchase of guns from M/s. A.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by his letter dated 23rd January, 1990 followed by another letter dated 26th January, 1990 requested the concerned authority in Switzerland for freezing/blocking certain bank accounts said to be relevant to the case, on which the Federal Department of Justice and Police, Switzerland moved a Geneva and a Zurich Judge who froze certain bank accounts on 29th January, 1990. It was, however, pointed out that the relevant accounts would remain frozen till 28th February, 1990 and that further necessary assistance would be rendered only on receipt of the letter rogatory from a competent judicial authority in India. 19. On 2nd February, 1990, the second appellant (C.B.I.) requested Shri R.C. Jain, Special Judge, Delhi to issue a letter rogatory/request to Switzerland urgently for getting the necessary assistance so that the investigation can be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated. 20. The Special Judge after hearing the prosecution allowed the application by his order dated 5th February, 1990. The said order reads thus : In the result, the application of the CBI is allowed to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hearing before Justice M.K. Chawla who by his order dated 19th December, 1990 dismissed the revision petition holding that H.S. Chaudhary had no locus standi to present the revision but took suo moto cognizance of the matter in exercise of powers vested on him under Sections 397 and 401 read with Section 482 of the Criminal Procedure Code and directed the issuance of show cause notice to the CBI and the State calling them as to why the proceedings initiated on the filing of FIR No. RC 1 (A)/90/ACU-IV dated 22.1.90 pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi, be not quashed. 24. On being aggrieved by the order of Justice M.K. Chawla, H.S. Chaudhary preferred an appeal challenging the findings of the High Court that he had no locus standi and the appellant herein (Union of India) and several political parties such as Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) preferred appeals canvassing the correctness of the order of Justice M.K. Chawla taking suo moto cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the FIR be not quashed. One indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire criminal proceedings inclusive of the registration of the case, the main contention of which are as follows: (1) The report of the JPC pertaining to the subject matter of the impugned FIR would constitute a legal bar not only for the registration of the FIR and the continuation of the investigation in pursuance of it but also for any further inquiry or investigation by the CBI or trial of any offence with regard to the subject matter of the proceedings in question which had been deeply gone into by the JPC and finally decided as borne out from the Report of the JPC. (2) The first Information Report does not disclose the commission of any offence and at any rate against the respondent even assuming that the respondent had received certain amount by way of winding up charges/commission through some other company. (3) The very fact that no civil case has yet been filed by the Government of India for recovery of the so-called commission in India and elsewhere by invoking the arbitration clause of the contract, the entire controversy is to be held as being based on mere conjectures and surmises. (4) The report of the JPC clearly reveals that the Bofors gun was best among ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of credence, a copy of which has been annexed by the respondents along with their additional written submissions. As regards the contention that the MOU was not ratified, it has been held We also do not find any merit in the third contention that MOU was not ratified by the President or Parliament as there is no express provision in MOU envisaging its ratification . 30. Dealing with the contention raised on behalf of the respondent that the Report of the JPC constitutes a bar to the registration of the FIR and the continuation of the investigation, the High Court observed as follows: Since there is no provision in the CrPC barring investigation by CBI in a case where the matter has been inquired into by JPC, we do not find any merit in this contention. But JPC being a High Power Committee of both Houses of Parliament and having gone into substantial evidence we are of the opinion that we also cannot totally ignore the conclusions arrived at by the JPC. 31. The above observation shows that the High Court did not favour the contention that the report of the JPC constitutes a legal bar for the registration of the FIR and continuation of the investigation. 32. Though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F.I.R. is made out. 10. No offence either under Section 409 or under any other sections of IPC is made out in the F.I.R. No suit has been filed or any arbitration proceeding has been initiated for recovery of the alleged commission. 33. The High Court has also made reference to the Judgment of this Court 28th August, 1992 (Supra) in which this Court after examining the FIR did not agree with a positive assertion of Justice M.K. Chawla stating that the FIR filed by the CBI in this case on the face of it does not disclose any offence. For proper understanding, we would like to reproduce the earlier observation of this Court in the above cited case which reads as follows: We have carefully and scrupulously gone through the First Information Report and we are unable to share this view of Mr. Justice Chawla, quite apart from the other grounds on which the accused may like to attack the First Information Report. 34. After making reference to the above observation, the High Court in its impugned judgment has recorded the following finding in unequivocal and unambiguous terms: With respect, we are also of the view that it may not be correct to say that the FIR on the face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts in detail in order to avoid prolixity clearly show that while Shri Harinder Singh Chaudhary was seaking quashing of the letter rogatory, FIR and all other proceedings arising thereon as a public interest litigant on behalf of the accused named and unnamed inclusive of this respondent in the FIR, the respondent (W.N. Chadha) was inexplicably silent but only after Harinder Singh Chaudhary had miserably become unsuccessful in his attempt of thwarting the criminal proceedings even at the door step on the gound that he had no locus standi, the respondent (W.N. Chadha) has come out of his shell - that too - through his Paiorkar and challenged the criminal proceedings raising various questions which, of couse, are available to him de hors the questions which have already-been decided and concluded by this Court during the first round of litigation. In fact, we ourselves in our earlier order dated 27th August 1991 have expressed the view that it is only for the aggrived parties inclusive of this respondent to agitate and challenge the criminal proceedings at the appropriate time before the proper forum. 39. The appellants, namely, the Union of India through its Secretary, Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ashok Bhan, learned advocates has articulated that the High Court by slipping and stumbling on many slippery grounds has rendered its findings which are not only opposed to law but also are contumacious. According to him it surprises in extreme that the High Court has thought that in exercise of its prerogative powers under Article 226 of the Constitution, it could quash the F.I.R. even though the said FIR discloses the offence/offences against the named and unnamed accused and the investigation has not yet commenced in its true sense except a preliminary effort of obtaining some information from the Swiss banks as regards the names of the account holders and to have an access to secret bank accounts linked with the Bofors payments. The learned Additional Solicitor General submits that there is an overwhelming weight of authority in favour of his view that the FIR cannot be quashed if the allegations do make a prima facie case. He cited some decisions of this Court spelling out the circumstances under which the High Court could exercise its discretion. 43. In continuation of his submission, the learned Additional Solicitor General submits that there is no legal bar in having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused. 45. The learned Additional Solicitor General has seriously urged that a bare perusal of the FIR manifestly demonstrates that huge payments have been deposited in the account of Svenska Inc. in Swiss Bank Corporation, the principal beneficiary of which is the respondent, W.N. Chadha. He clarifies the above submission stating that there is a clear link between Svenska Inc. Panama and Anatronic General Corproation of which the respondent is admittedly the President, as described in detail in paragraphs 53-59 of the FIR, a persual of which will leave no doubt whatsoever that Svenska Inc. Panama is just a front Company and belongs to the respondent. According to him, there are sufficient materials indicating the involvement of the respondent in the commission of the offences in question. It is further stated that the connection between Svenska Inc. Panama and AGC is discernible from the agreements of the years 1978, 1984 and 1986 entered into by Bofors with the two aforementioned concerns. 46. Finally, he requested this Court to pronounce the verdict as early as possible. 47. It may be mentioned in this connection that the first Bench presided over by the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Foreign Exchange Regulations Act and Income Tax Act by keeping his account in foreign country and that the FIR contains sufficient allegations that the respondent had received huge amount for himself and for passing off to the public servants, and therefore, in order to purify the stream of justice, the impugned judgment of the High Court has to be quashed. The learned Counsel has further urged that the respondent on the pretext of false reasons of health is purposely residing in United Arab Emirates with which country there is no extradition treaty and to which country Indian summons and warrants cannot reach and therefore, the respondent who is an out-law is not at all entitled to the assistance of the law of this country. 48. According to the respondent, even the entire allegations in the FIR do not constitute any offence against any of the accused much less against him and they are all frivolous, baseless and nothing more than mud slinking. Further, he has started attacking the conduct of the investigating agency in requesting the Court to issue letter rogatory and the authority of the Special Court in issuing letters rogatory on 5/7th February, 1990 and subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual issues inclusive of the question whether the First Information Report does disclose any offence against the named and unnamed accused persons and pronounced its final verdict. In fact, the High Court has taken on its shoulder some of the issues which were not really agitated upon by the respondent about which we would deal in the later part of this judgment. 53. We shall now examine the tenability of the various grounds on the basis of which the High Court has rendered its impougned judgment. Firstly we shall deal with vital grounds relating to the issue of letters rogatory. Whether issue of letter rogatory is opposed to law and violative of the principle of natural justice and thereby has become liable to be quashed? 54. It appears from the impugned judgment that it has been contended before the High Court that there is no jurisdiction to issue letter rogatory by the Special Judge unless he is satisfied with regard to the extent of dual criminality and the prima facie involvement of the accused persons whose property or rights are sought to be affected by the letter rogatory. This being a condition precedent, the Special Judge could exercise his jurisdiction only af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction, that a witness be examined upon interrogatories sent with the request. The medium whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter's control, to assist the administration of justice in the former country. A formal communication in writing, sent by a court in which an action is pending to a court or judge of a foreign country, requesting that the testimony of a witness resident within the jurisdiction of the latter court may be there formally taken under its direction and transmitted to the first court for use in the pending action. This process was also in use, at an early period between the several states of the Union. The request rests entirely upon the comity of courts towards each other. 60. It is clear from the above meaning of the said expression that 'Letter Rogatory' is a formal communication in writing sent by a Court in which action is pending to a foreign Court or Judge requesting the testimony of a witness residing within the jurisdiction of that foreign Court may be formally taken thereon unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclosures for assistance to the competent judicial authorities in the Confederation of Switzerland so that during the investigation of this case, the necessary evidence could be collected in Switzerland and the investigation is taken to its logical conclusions as per the requirements of the law. The Special Judge after satisfying himself accepted the request by its order dated 5th February, 1990 and issued letter rogatory/request enclosing therewith the copies of certain documents on 7th February, 1990 to the competent judicial authorities in the Confederation of Switzerland. The Federal Department of Justice and Police, Berne found the letter rogatory in order and forwarded the same to the Examining Magistrate of Geneva for taking necessary action thereon. The examining Magistrate, Geneva after satisfying himself that the said letter of rogatory was in order accepted the same on 26th March, 1990 and commenced the investigation as requested. 63. While it was so, two of the affected parties in Geneva filed appeals in the Criminal Court of Canton of Geneva. The Criminal Court of Geneva passed an order on 3rd July, 1990 on the appeals expressing its view that the letter rogatory di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent, a contention was raised that the Special Judge had no jurisdiction or power to issue letter rogatory on 5/7th February, 1990, the High Court except simply mentioning that contention in the discussion part of its judgment and then proceeding with the counter submission made by the learned Counsel for CBI submitting that that the said letters rogatory were issued by the Special Judge on the strength of the memorandum of understanding between Government of India and Switzerland and in the discharge of his obligation mandated on him by the Constitution and the law, did not go into that question of the jurisdiction or power of the Special Judge to issue letter rogatory on 5/7th February, 1990 despite the fact that Copies of the letters rogatory alongwith their enclosures issued on 7th February, 1990 and 22nd August, 1990 have been made available to the Court. Section 166-A which was introduced after the issue of letter rogatory on 5/7th February, 1990 confers jurisdiction on the Special Judge to issue such letters. The result is that there is no specific discussion with regard to the authority of the Court in issuing the first letter rogatory. 67. In would be significant, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reasonable opportunity of being heard. 74. No doubt it is true that a seven-Judges Bench of this Court in Smt. Maneka Gandhi has opened a new vista in the area of personal liberty as enshrined under Article 21 of the Constitution and emphasised the audi alterant partem rule which emphasis is of affording a fair opportunity of being heard on prior notice to a party to whose prejudice an order is intended to be passed by the Government or its officials. Further, it is stated by the High Court that all the safeguards in favour of an accused contained in the Criminal Procedure Code have now become a part of the constitutional provisions and they are governed by Articles 14, 19, 20, 21 and 22 and that the procedure contemplated under Article 21 requires that it should not be arbitrary, fanciful, oppressive or discriminatory. Therefore, the failure on the part of the Special Judge in issuing notice to the respondent and affording him a reasonable opportunity of being heard vitiates the letters rogatory. 75. Countering the above arguments, the learned Additional Solicitor General seriously contended that there is no provision conferring any right of audience on an accused before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, the question of 'fair play in action' will be attracted. This rule was explained by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs 1969 (2) Chancery Division 149, stating that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf . 78. The above explanation is quoted in Maneka Gandhi. 79. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith's Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading Exclusion of the audi alteram partem rule'. 80. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 977) 1 W.L.R. 1371, it has been held that search warrants under the Forgery Act, 1913 Section 13 may issue without the party affected being heard. 86. A Division Bench of the Allahabad High Court in Indian Explosive Ltd. (Fertiliser Division) Panki Kanpur v. State of Uttar Pradesh and Ors. (1981) 2 L.L.J. 159 after referring to the decision in Ragina (supra) and Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch. Div. 202 said thus: Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases. 87. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a fullfledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances. 92. It may be noted that under Section 227 of the Code dealing with discharge of an accused in a trial before a Court of Sessions under Chapter XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under Section 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted there with but also the submissions of the accused and the prosecution made under Section 227. Similarly, under Section 239 falling under Chapter XIX dealing with the trial of warrant cases, the magistrate may give an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the CrPC. 96. Incidentally, it may be stated that there is no question of attachment of money of the respondent or any of the accused, named or unnamed, standing to the credit of the account holders in Swiss banks linked with Bofors mystery but it was only freezing of the accounts as per the request made by the Director, CBI by Ms letter dated 23rd January, 1990 and followed by another letter dated 26th January, 1990 and thereafter pursuant to the request through letters rogatory for judicial assistance in Switzerland, But for the request made by the letter rogatory, the Swiss law obliges withdrawal of all the instructions to block the account. Therefore, we are of the view that the detailed discussion of the High Court with reference to the Criminal Law Amendment Ordinance of 1944 though is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding to Section 94 of the old Code and to Sections 4 and 5 of the Bankers' Books Evidence Act, 1891 and relying on a decision in Central Bank of India Ltd. v. P.D. Shamdasani AIR 1938 Bom. 33 at 35 wherein it has been held that a Magistrate making an order under Section 94 of the Code (old) for production of documents does not thereby commit himself to the proposition that inspection of all the documents, the production of which is ordered must necessarily follows and the party producing the documents is not precluded from objecting to their subsequent inspection, seriously contended that the banks should have been given prior notice and heard. According to him, the banks, in such a circumstance, probably might have objected to the production of the bank accounts. 101. We are unable to see any force in the above submission of Shri Rajinder Singh because, firstly there is no request for production of the documents; secondly there is no prayer in the letter rogatory for production of the entire account books and; thirdly till date no objection is taken by the Swiss banks. It is pertinent to note that the High Court has not found fault with the validity of the letter rogatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the pasting of a piece of paper containing certain names which were earlier mentioned in the letter dated 26th January, 1990 given by Mr. M.K. Madhavan, CBI to the Federal Department of Justice and Police. The non-reference to the earlier letter of the CBI in the letter rogatory issued by the Special Judge on 5/7th February, 1990 and also its absence as one of the annexures to the letter rogatory show that the letter rogatory issued by the Special Judge had been tampered with. (d) The CBI in its note of compliance clarifying the observations of the order of 3rd July, 1990 of the Criminal Court of Geneva not only referred to the Criminal Law Amendment Ordinance, 1944 which empower the District Judge to pass ad interim orders attaching the money or other property but also enclosed a copy of the same for the purpose of showing the power of the Criminal Courts in India. Under Section 4(1) of the said Ordinance a District Judge is empowered to pass an ad intertim order attaching the money or other property alleged to have been procured by means of any offence but in terms of Section 4(2) of the said Ordinance the District Judge was required to issue a notice to the person whose m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the appellants may be taken note of. 111. Ground No. 'N' of the additional grounds reads thus: It is submitted that the entire original record was offered to the High Court in confidence from which the High Court has even quoted.... 112. Ground No. 'Q' of the additional grounds, the appellants have stated thus: ...High Court has recorded findings beyond the scope of arguments urged at the bar on behalf of respondent herein and the pleadings on record. 113. During the argument before this Court, the Additional Solicitor General reaffirms that certain secret and confidential documents at the instance of the court - namely the letters of the CBI to the Federal Department of Justice and Police, Berne, Switzerland dated 23rd and 26th January, 1990, the order dated 3rd July, 1990 of the Cantonal Court, the note of compliance of the CBI, the letters of the Chief of Army Staff, the minutes of the meeting of the Negotiating Committee etc. etc. were handed over in a sealed cover with an oral request not to reveal the document to the other side or to refer them in the judgment since otherwise the Government would be claiming privilege on the said docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Judge. 117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India, 1980 (86) Cr.LJ. 258. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the wirt petition observed: Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner. 119. For all the aforesaid reasons we unhesitatingly set aside the order of the High Court quashing the letter rogatory dated 5/7th February, 1990 and the rectified letter rogatory dated 21/22nd August, 1990 issued in pursuance of the orders passed by the Special Judge. The respondent who is a named accused in the FIR has no locus standi at this stage to question the manner in which the evidence is to be collected. However, it is open for the respondent to challenge the admissibility and reliability of the evidence only at the stage of trial in case the investigation ends up in filing a final report under Section 173 of the Code indicating that an offence appears to have been committed. 120. Does the First Information Report prima facie disclose any offence against the respondent, W.N. Chadha and is there any material prima facie connecting the respondent with the dealings of Bofors relating to the purchase of guns? 121. For answering the first part of the above question the High Court has made a lengthy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the above documents the High Court drew its final conclusion regarding the procedure followed from the very proposal of the contract till its finalisation. The relevant conclusion reads thus: From the facts mentioned hereinabove, it is clear that the decision regarding finalisation of the contract with Bofors was not taken by one or two persons, it was based on the recommendations of the Negotiating Committee of five Secretaries. Financial Advisor and DCAOS and these recommendations were dully examined and approved by then Secretaries of the various departments as also by the then two Ministers of State for Defence, the then Finance Minister and the then Prime Minister (as RM). Thus, the decision was taken in accordance with the well established procedure. (emphasis supplied) 124. After having recorded its finding with regard to the procedure followed the High Court has passed on to the second question as regards the bona fide nature of the contract. 125. By making reference to the keen competition between the two finally short-listed firms, namely, M/s. Bofors and Sofma and the lower price quoted by Bofors than that of Sofma in addition to certain further conces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices. 132. Then quoting the opinion of the then Chief of Army Staff recorded in his letter dated 29th November, 1985, the opinion of the then Attorney General contained in paragraph 8.13 of the report of the JPC, the agreement between Bofors and AGC dated 24th October, 1978 and another agreement between Svenska Inc. Panama and Bofors entered into in December, 1978 the period of which was further validated in 1984 the High Court has held: After the Government of India's policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence. 133. Thereafter referring to the opinion of the then Attorney General contained in paragraphs 8.7, 8.9 and Clause 26 of the agreement entered into between Government of India and Bofors it has held: ...that unless there is a specific allegation regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court have freely used those documents which are said to be secret and confidential and not only referred but also quoted certain portion of those documents in extenso as stated supra. According to the learned A.S.G., the line of course taken by the High Court to its conclusions on the seriously disputed questions of law and fact taking its cue from the original records cannot be countenanced. In our view, the documents (the copies of which are produced before us claiming to be secret documents) from their very nature could have never been in possession of any third party much less with the respondent and in such a case, the High Court was not at all justified in making use of those documents for its findings especially in a case of this nature where there are serious and outrageous allegations. In these circumstances, one would be constrained to observe that the High Court has prejudged the issue and thereby laid down the foundation for its subsequent findings for quashing the entire proceedings. No doubt every court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indian Express and Statesman of 13.10.1989 states that an Indian who had been agent of Bofors for 10-15 years was the principal beneficiary of payment made by Bofors to Svenska Inc. in connection with the gun deal in question and that the respondent was very much connected with Svenska Inc. Of course, Mr. Rajinder Singh has denied any connection of the respondent with Svenska Inc. and added that if the period of 10 or 15 years mentioned by the learned ASG is calculated backwards from 1985, it would show that the connection of the alleged agent with Bofors should have started from 1975 and, therefore, the expression 'agent' as appeared in the Press could not refer to the respondent who became the agent only in 1978. The arguments of Mr. Rajinder Singh has been refuted by the ASG who relied on the statement of the respondent before the investigating agencies engaged by JPC wherein the respondent is stated to have admitted that he was a representative of M/s. Aerotronics General Agencies (for short 'AGA') and tried to sell some laser guns to India but was not successful and that some time in 1975-76 this Company AGA was taken over by Bofors and it was renamed as Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strative services and the said amount could not be termed as bribe by any stretch of imagination absolutely incorrect and bereft of the incriminating documentary evidence. The above argument advanced on behalf of the appellants was stoutly resisted by the learned Counsel for the respondent, according to whom there was a clear understanding between Government of India and Bofors that there should not be any middle man or agent and in fact the agreement finalised for purchase of the guns does not spell out the engagement of any middle man or agent. 145. One should not lose sight of the fact that the oral understanding has not been incorporated in the written agreement about which there is no dispute. What is stated at the bar is that the oral understanding has been confirmed by subsequent correspondence between the parties. The High Court has extensively quoted the opinion of the then learned Attorney General and very much relied on it for its observation, reading thus: After the Government of India's policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide motivation of the persons in authority at the time of the registration of the case and the criminal proceedings were initiated only with an oblique political purpose. According to the counsel, the investigation geared up by those who were in power in the then outgoing Government in order to gain mileage in the journey of their political career is highly polarised and politicalised. 149. The above argument cannot be countenanced. As observed in Bhajan Lal, when the entire matter is only at a preliminary stage and when the investigation has yet to go a long way to gather the requisite evidence the Court cannot come to a conclusion one way or the other on the plea of mala fide at such a stage. Further in case the investigation discloses that the entire proceeding has been initiated only with mala fides, probably the prosecution itself may throw the case overboard. Answering a similar contention, Bhagwati, CJ in Sheonandan Paswan v. State of Bihar has observed as follows: It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blocking of more accounts was given to the Federal Department of Justice and Police by Shri K. Madhavan on 26th January, 1990 in which he had given the particulars of the names of the account holders in respect of whose accounts the request for freezing/blocking had been made. In continuation of his submission, he has stated that a copy of the above letter was shown to Shri R.C. Jain, Special Judge who had perused the same and that the then Additional Solicitor General, Shri Arun Jaitley who appeared on behalf of the CBI before the Special Judge in fact clarified to the learned Judge that the names mentioned in that letter had been furnished on the basis of information received by the CBI. But the learned Judge, Shri R.C. Jain has not enclosed the copy of the letter alongwith other annexures to the letter rogatory dated 7th February, 1990 forwarded to the Swiss authorities. It was under these circumstances, Shri Madhavan happened to paste a slip containing the names of those account holders as contained in the letter dated 26th January, 1990 and handed over the letter rogatory with the enclosures to the Swiss authorities. But when the entire letter rogatory was sent back to the Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished for ready reference of the names of the account holders as contained in the letter dated 26th January, 1990. Even if it is to be held that the piece of paper should not have been pasted, leave apart the explanation offered since Shri V.S. Aggarwal has approved the letter rogatory with the pasted piece of paper on being satisfied the circumstances under which it was pasted, the CBI cannot be ostracised. It must be noted by pasting that slip Shri Madhavan has not added any additional informatioin on his own. Therefore, we expunge the remark of the High Court, as prayed for in the Cr.M.P. In view of this finding, we hold that the High Court was not correct in holding that this has amounted to tampering of judicial records. 155. The High Court has taken into consideration two factors alongwith the conclusions arrived at by the JPC in its report for granting the relief to the respondent despite its finding that the allegations in the First Information Report discloses an offence against all the accused about which we will deal in the later part of this judgment. 156. Of the two, first relates to the alleged failure on the part of the CBI to name any one of the public ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, it is a fit case where investigation cannot be allowed to continue against the petitioner. 160. We are not able to see any logic in the above reasoning. When we asked the counsel for the respondent as to whether this material of the impounding of passport was placed before the High Court, he hesitatingly stated that the order of the High Court in Crl. Misc. (Main) No. 1318 of 1990 titled Washeshwar Nath Chadha v. State, has been reported in (1991) 1 Delhi Lawyer 394, and thereby requested the Court to infer that the High Court might have taken note of that reported judgment, though the judgment spells out nothing about the source of information in this regard. At the instance of this Court, a copy of the reported judgment in Crl. Misc. case has been placed before this Court by the respondent. 161. Be that as it may, the respondent who was the petitioner in the above case filed a petition before the High Court under Section 482 Cr.P.C. read with Article 227 of the Constitution seeking certain reliefs, namely, to permit him to inspect the FIR which is the impugned FIR in this case, and to quash the non-bailable warrants issued against him relating to a case regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the impounding of the passport of the respondent. These aspects have been dealt by us and we have categorically held that these aspects do not in any way affect the contents of the validity of the FIR. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very FIR. 167. We, therefore, are of the firm view that the self contradictory findings of the High Court itself gives a frontal attack to the impugned jugement, rendering it unsustainable both in law and fact. To put it ironically, the impugned judgment 'profusely bleeds due to its self inflicted injury'. 168. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the FIR discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or to raise claims for the reimbursement to Government of payments made by Bofors to the three foreign companies. Conclusion No. (xiii) There is no evidence to establish that the Bofors' payments totalling SEK 319.4 million involved a violation of any Indian Law. Conclusion No. (xiv) There is no evidence of any other payment having been made by Bofors for winning the Indian contract. 170. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully cooperating with the enquiry furnishing the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney General of India. 171. Now it is shown that the Swiss authorities are coming forward to give full co-operation and assistance in the collection of evidence at their end. Therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact Shri Rajiv Gandhi, the then Prime Minister of India himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajan Lal. Cr.M.P. Nos. 4999, 5201 and 5160 of 1992 175. All the above criminal miscellaneous petitions are filed seeking leave to file appeals challenging the judgment impugned in this case. Admittedly, none of them was a party to the proceeding in the High Court except Shri Prashant Bhushan who filed his petition before the High Court, when the matter was reserved for judgment, as a public interest litigant making a complaint that no proper submissions were made on behalf of the appellants herein with regard to the legality of the issue of letter rogatory and competence of the Special Judge in issuing letters rogatory. This petition was disposed of by the High Court as the allegations in that petition were unfounded. 176. Before this Court, Shri Shanti Bhushan appearing on behalf of Shri Prashant Bhushan stated that every crime is perpetrated only against the society and that is why the State takes up the cause on behalf of the Society and, therefore, these petitioners who evince their interest in the protection of the society should be granted leave to canvass the correctness of the impugned judgment as public interest litigants. In support of his submission, he placed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 436, 21, S.Ct. 293 (1901), in which it has been held thus: However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this. 183. In fact when this case on hand came up before this Court arising out of the public interest litigation of Shri H.S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi. 184. For the above reasons stated above, all the Criminal Miscellaneous Petitions are dismissed. 185. The investigation is only at an infant stage and it has to go a long way to collect all the materials. Only after requisite particulars are collected by the investigating agency, the further course of action would be decided. Whatever it may be, without the battle lines being properly drawn, the Court will not be justified in making any further positive pronouncement on the merits of the serio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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