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TMI Blog1991 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Crime No. RCI(A)/90-ACU-IV on the file of the Special Judge, Delhi including the issuance of the letter rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law. - Criminal Appeal No. 304 of 1991 - - - Dated:- 27-8-1991 - Pandian, S. R. And Shetty, K. J. ,JJ. Anand Dev Giri, Solicitor General, Ram Jethmalani, K.G. Bhagat, P.S. Pottv, Prashant Bhushan, Jayant Bhushan, Ms. Deepa Bhushan, P.K. Dey, Ms. Lata Krishnamurti, M.N. Shroff, A.K. Khare, Ms. Kamini Jaiswal, P.K. Monohar, R. Sasiprabhu, Ms. A. Subhashini, A. Subba Rao, Ashok Bhan, Ms. Anil Katiyar, P.N. Bhan, R.K. Dixit and A.M. Khanwilkar for the appearing parties. Nalla Thampy . JUDGMENT A brief resume of the facts which has given rise to the above appeals and Writ Petition would be necesSary to appreciate the unsavorous controversies created by way of public interest litigations, though 0we have decided to give only our conclusions now and the detailed reasons later in order to avoid any delay in this matter for the reasons,, namely, (1) in the application for direction filed by the Union of India through C.B.I. on 12.7.91 it is submitted that "the Swis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding contracts to BOFORS for the supply of guns to the Government of India and in the transaction also committed the offences of criminal breach of trust, cheating of Union of India, forgery and using of forged documents etc. It appears that the C.B.I. has commenced its investigation during the course of which it has recorded statements of witnesses and took into their custody various documents and files relating to this Bofors deal. While it is so, the C.B.I. moved an application before the Special Judge, namely, Shri R.C. Jain stating inter alia that the investigation of the case is to be conducted not only in India, but also in Switzerland, Sweden and other countries, that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and oral evidence relating to all aspects of the accounts in banks in Switzerland to which remittances were made by M/s A.B. Bofors from Sweden, that in particular, the authorised signatories and the beneficiaries of the said accounts have to be traced by such investigation as they are, in fact, the ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated. The Special Judge after hearing Shri Arun Jaitley, the then Additional Solicitor General of India and Shri K.N. Sharma, Deputy Legal Adviser, CBI andShri Baljit Singh, Senior Public Prosecutor by its considered order dated 5.2.1990 allowed the application of the C.B.I., the relevant portion of which reads thus: "In the result, the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, Government of India subject to the filing of the requisite/proper undertaking required by the Swiss Law and assurance for reciprocity." The Special Judge also directed certain documents to be sent along with his letter of request, such as the copy of the FIR dated 22.1.90, mutual assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law challenging the legality and validity of the impugned order and made the following prayers: (a) to quash the entire FIR No. RCI (A)90/ACU-IV dated 22.1.90 and criminal proceedings covered by the same. (b) or remand the case to the Special Judge permitting the petitioner to argue his case before the lower court and also direct the court below to decide the petition on merits. 761 (c) direct the court that no request for rogatory letters be. made to Swiss Government, till the petitioner is heard on his application. (d)the petitioner may be permitted to join during the inquiry to determine the question of dual criminality before the learned Special Judge in the capacity of public interest litigant, and also direct the learned Special Judge to decide the question of dual criminality before issuing the letter rogatory. (e) direct the learned Special Judge not to issue any ro.gatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence. This revision petition has been registered as Criminal Miscellaneous (Main) NO. 1821 of 1990 on the file of the High Court of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads thus: "In my opinion, the case of the petitioner does not fail within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha (supra). So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf. The same is hereby dismissed. As a consequent of the dismissal of the present petition, holding that the petitioner has no locus standi, the applicants have no right to be impleaded and their impleadment/ intervention applications are also rejected. So, I suo moto take cognizance while exercising my powers under Sections 397 and 401 read with Section 482 of the Code, and direct the office to register the case under the title, Court on its own motion v. State and CBI. Consequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No. RCI (A)/90/ACU-IV dated 22.1.90 pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi be not quashed. The sum and substance of the above order is that in the opinion of Mr. Justice Chawla, the petitioner Sh..Harindcr Singh Chowdhary has no locus standi to maintain the petition and conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Criminal Appeal No. 309/91 This appeal is preferred by Indian Congress (Socialist) against the main order of the High Court dated 19.12.90 dismissing his application for impleadment and taking up suo moto cognizance for quaShing the FIR. Criminal Appeal No. 310/91 This appeal is filed by the Union of India canvassing the legality and correctness of the order dated 5.9.90 passed by the High Court and praying for a direction directing the High Court to decide the maintainability of the public interest litigation as a preliminary question. In that appeal, the learned Solicitor General requested for the deletion of the second respondent, Mortin Ardbo, former President, M/O A.B. Bofors, Sweden (who is only a proforma respondent) from the array of parties and accordingly the permission was granted by this Court s order dated 13.3. 199I. Criminal Appeal No. 311/91 This appeal is filed by the Union of India and the CBI questioning the said second part of the order dated 19.12.90, namely taking suo moro 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. It may be noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor General strenuously urged that Mr. H.S. Chowdhary claiming to be a public interest litigant has filed the original petition before the Special Judge as a proxy of the accused who are all behind the curtain and who by this perilous proceeding are trying to evade the dragnet of the investigation and of whom even the named accused are maintaining stoic silence all through unmindful of all the proceedings till date and that the CBI though subjected to increasing uncharitable and unwarranted criticism and vilification and also scurrilous attack, with remarkable resilience is relentlessly attempting to collect all available materials by unearthing the wider conspiracy and well knitted illegal transaction within its legally permis sible limits. It is pertinent to mention that Mr. Altar Ahmed the learned Additional Solicitor General appearing on behalf of the Union of India and CBI after Mr. A.D. Giri (the former Solicitor General) has relinquished his office, reinforced the same arguments and further pleaded that the matter should be disposed of before the end of August 199 1 for the reasons stated supra so that the CBI may effectively carry on with the investigation. However, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing-our anxious and painstaking consideration and careful thought to all aspects of the case and deeply examining the rival contentions of the parties both collectively and individually give our conclusions as follows: 1. Mr. H.S. Chowdhary has no locus standi (a) to file the petition under Article 51-A as a public interest litigant praying that no letter rogatory/request be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on 5.2.90 directed issuance of letter rogatory/request to the Competent Judicial Authorities of the .Confederation of Switzerland; (b) to invoke the revisional jurisdiction of the High Court under Sections 0397 read with 401 of the Code of Criminal Procedure challenging the correctness, legality or propriety of the order dated 18.8.90 of the Special Judge and (c) to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report .dated 22.1.90 and all other proceedings arising therefrom on the plea of preventing the abuse of the process of the Court. 2. In our considered opinion, the initiation of the present proceeding ..... 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