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TMI Blog2005 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... case, as put by the Hinduja Brothers, are that pursuant to an FIR registered on 22.1.1990, a long and tortious investigation was undertaken which ultimately resulted in filing of a charge-sheet dated 22.10.1999. In this charge-sheet, the Hinduja Brothers were not cited as accused although the Bofors Company was made accused. In other words even though the CBI had received documents showing nine payments to a company called 'Mclntyre Corporation, owned by one of the Hinduja Brothers, namely, Prakash P. Hinduja. The Hinduja Brothers were not included in the charge-sheet since there was no evidence that the payments made to Mclntyre Corporation constituted the so-called kickback in the Bofors contract dated 24.3.1986. My attention was drawn to letter dated 9.6.2000 addressed by the Indian Embassy in Berne to the Swiss Investigating Agency enclosing a note by the CBI, paragraph 3(viii) of which reads as under: Documents received till date did not indicate that the amount paid into the bank account of the petitioner and his brothers were in respect of the gun contract, as was the case in respect of payment made to A.E. Services and M/s Svenska Inc. 3. The Swiss authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing order : I direct the learned Magistrate to frame charges strictly in accordance with direction given by the court in para 141(2) and in accordance with Chapter XVII of the Code of Criminal Procedure after hearing the parties on the procedural aspect of it. 7. Brother, Kapoor, J., had directed the charge of 120B read with Section 420 IPC need be framed against the petitioners which was obvious to me by reading his order that the substantive offence of cheating could only be committed by Bofors who made the alleged representation contained in letter dated 10.3.1986. Brother, Kapoor, J., in his judgment has recorded that the representation by Bofors must have been made with the knowledge of the Hinduja Brothers and, Therefore, a prima facie case of conspiracy made against them. 8. For a lawful charge to be framed, particulars as to the time and place of the alleged offence and the person against whom or the thing in respect of which it was committed have to be mentioned in the charge so that reasonable/sufficient notice of the matter with which he is charged is provided to the accused. This is the requirement of Section 212 of the Code of Criminal Procedure. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate to make a reference to the High Court under Section 395 of the Code of Criminal Procedure. For reasons, which may or may not be correct, the learned Magistrate declined to make the reference. I do not propose to go into these reasons. It is in these circumstances that petitions by the Hinduja Brothers for recall of my order have been filed in this court which, as already noted above, have been referred to me specially by order of Hon'ble the Chief Justice for final disposal. 12. It was argued that the petitioners have suffered in business, reputation and property over the last twenty years. Counsel for the petitioners submitted that the charge leveled against them in the FIR as well as in the charge-sheet were serious charges of corruption, bribery and conspiracy with no less a person than the Prime Minister of India. This has gravely damaged their reputation throughout the commercial world. They have suffered a setback costing them hundreds of crores. They have had to appear before the High Court, the Supreme Court, the Special Judge's court and the Magistrate's court. Fortunately, they have been vindicated and charges of corruption have been quashed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the illegal means. Though at one stage the learned Additional Solicitor General sought to contend that knowledge by itself would be enough, he, on deeper thought, accepted that this would not be.'' 15. It was submitted that Kapoor, J., has found only knowledge but neither an intent nor any act of assistance or facilitation by the Hinduja Brothers, from which intention can be inferred to sustain a charge, could be gathered. The Hinduja Brothers have personally not made any representation, true or false, to the Government of India or the Negotiating Committee. They do not answer the description of Indian agents 'specially employed' for the Bofors contract. Prosecution itself alleged that they never took any part in the award of the contract. Counsel for the petitioners submitted that the charge of conspiracy cannot, even on the finding of brother Kapoor, J, be framed. 16. I must at once record that these arguments in the earlier two paragraphs are very attractive and forcefully advanced and might even carry conviction but I have to politely remind the learned senior counsel for the petitioners that these arguments can only be addressed to the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when objection was raised before the learned Chief Metropolitan Magistrate that the original documents were not available, the following order was passed on 25.11.2004 by the learned Magistrate :- ''So at this stage, it can be said that these documents came here through the responsible Government. The question at this stage whether these documents are legally admissible or not, can be looked into in terms of order of Hon'ble Mr. Justice J.K. Kapoor only at the trial stage when CBI may cause to produce the originals also albeit copies are there on record but objection of defense is that the same are not authenticated as required by law. (v) That this court has no jurisdiction to grant the relief which is now prayed for by the Hinduja Brothers namely recall of the earlier orders dated 4.2.2004 passed by Hon'ble Mr. Justice Kapoor and the order dated 20.5.2004 passed by Hon'ble Mr. Justice Sodhi. Reliance has been placed in support of this argument on the following authorities : (i) Rajinder Prasad v. Bashir and Ors. 2002CriLJ90 . (ii) Krishnaveni 1997CriLJ1519 . (iii) Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr. . (iv) Soo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the prosecution. The first point to consider is whether this court is competent to grant relief which is prayed for. 21. The Petitioners in support of their prayer have relied strongly on the judgment of the Supreme Court in A.R. Antuley v. R.S. Nayak and Anr. 1988CriLJ1661 . The judgment does lend considerable support to the Petitioners' abstract proposition that the Court can act in the interests of justice unless its jurisdiction to do so is taken away by some express or implied statutory provision. 22. The majority judgment delivered in that case by His Lordship Mr. Justice Sabyasachi Mukherjee recalled the directions for a retrial earlier issued by the Constitution Bench of five judges. In paragraph 49 the learned Judges said : ''In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal''. It is true that the earlier directions which were recalled had overlooked some constitutional limitations and the resulting directions were violation of Articles 14 and 21 of the Constitution. But the Court in paragraph 52 had cited with approval the following proposition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same High Court in State of Bombay v. Geoffrey Manners and Co. AIR1951Bom49 held that the High Court had inherent power to review or alter its judgment, where there is an error apparent on the face of the record or an obvious mistake about the facts which, if not corrected, would lead to miscarriage of justice. This view is also affirmed by a Full Bench of the Rajasthan High Court in Habu v. State of Rajasthan. 29. In my opinion in view of the 1988 Antuley's judgment of a larger bench, earlier judgments like Sooraj Devi v. Pyare Lal and Anr. 1981CriLJ296 stand modified. The other judgments cited by the Additional Solicitor General mentioned in paragraph 26 above are not relevant to the present controversy. 30. Now the next and still more important question is of the new situation, I am dealing with, which was not present to the mind of Mr. Justice Kapoor or to me when the earlier orders were made by this Court. 31. The prosecution themselves have now placed before me by way of an affidavit of Shri Mishra, as indeed before the Learned Magistrate, the joint statement dated 22.2.2005 of the two officers from the Prosecutor's office in Sweden, which is reproduced bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a certificate written at the foot of such copy that it is the true copy of the original and this certificate must be titled and shall be sealed. I cannot accept the argument of the learned Solicitor General that certified copy issued in Sweden need not comply with Section 76 of the Indian Evidence Act. It is well known that the law of the Forum settles the rules of the evidence applicable to pending matters in its Courts. I am quoting a passage from Cheshire and North's Private International Law, Twelfth edition at pages 81-82:- ''Every system of law has its own principles for deciding the way in which the truth of facts, acts and documents shall be ascertained, and it is obvious that whether the question at issue is domestic or foreign in original those principles must usually apply. If another system of evidence were admissible it would be equally reasonable to permit another mode of trial. Whether a witness is competent or not (said Lord Brougham), whether a certain matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not, that is to be determined by the law of the country where the question arises. Leroux v. Brow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions are not and can not be satisfied. 37. Before I part with the joint statement I must mention that the original documents have been returned to the concerned parties in Sweden. Obviously this was done when the Public Prosecutor closed his investigation as far back as the year 1988. It is difficult to understand the meaning of the expression `in token of authentication' used by the joint statement. 38. Now this joint statement was neither available to Kapoor, J, nor to me at the time of the earlier orders. This is a totally new piece of evidence showing not only that the original documents cannot be procured but also that the present photo copies do not constitute certified copies or any kind of legitimate secondary evidence. Faced with this situation, I had by order dated 13.5.2005 required to be informed if the defects could be removed. Learned Additional Solicitor General sought time to seek instructions. After two weeks, when the matter came up for hearing, Mr. Dutta read out a letter he had received, but under instructions from the CBI officers present in court, the reply I got was as follows:- ''As stated in our affidavit what we have submitted to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and if any evidence existed it would have been mentioned in the judgment of Kapoor.J. I am, Therefore, inclined to accept the statement of the Petitioners that there is no such evidence. On the other hand, two documents, Exhibit D-292 and D-293, which are annexed to the Affidavit of Shri Mishra for CBI, show that status of the Hindujas was of consultants and not of agents. The document, D-293 of 29-6-1984, shows that the remuneration payable to the Hindujas was also for market expenses incurred by them. Obviously this has nothing to do with the securing of the Bofors contract. The petitioner's case that they were merely consultants in the counter trade obligations of Bofors is supported even by the disputed documents. 41. It is not the case of the Petitioners that the photo copies in Vol. XXII are the very photo copies which N. Ram of Hindu supplied. It is likely that they are but the Petitioners have not undertaken to prove this. It may be that the documents in Vol.XXII are another set of photo copies either made from the Hindu document or procured from some other undisclosed source. 42. When the matter was discussed in the Trial Court, the learned Magistrate was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument has to be proved in accordance with the methods indicated in the Evidence Act itself. I cannot do better than cite a judgment of Justice S.P. Barucha of the Bombay High Court, as he then was, and reported in Om Prakash Berlia and anr. v. Union of India and Ors. AIR1983Bom1 . This judgment has neither been modified nor overruled at any time. It lays down the following propositions :- ''(a) the contents of document may be proved by the evidence of a person who saw it being executed or was himself the executant, (b) the contents of a document is different from the truth of what the document states: (c) the truth of its contents can be proved by one who has personal knowledge of the matter recorded. See AIR1971SC1949 and AIR1968Bom112 . (d) if the document is in the handwriting of some one, the handwriting itself must be proved under Section 67 of the Evidence Act. (e) A public document can be proved by a certified copy. (f) In such a case production of the original or accounting for non-production of the original is not essential but all other requirements must be complied with. 47. Accepting the above propositions as correct, I would only li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the Local Prosecution Authority of Stockholm. When additional documentation arrives from the prosecute on authority, it will be forwarded to the Embassy. The Prosecutor General's Office has pointed out that the documents submitted is covered by articles in the Swedish Official Secrets Act.'' This refers to a request for legal assistance by the Embassy of India. No execution of any Letters Rogatory of 1998 was taking place at that time. 52. The third letter is dated 6.7.2001 from Embassy of India to the Ministry of External Affairs in New Delhi. This document reads as under :- ''Please find enclosed a set of documents related to Bofors case received from the Local Prosecution Authority of Stockholm through the Swedish Ministry of Justice in response to a request from Shri O.P. Galhotra, Dy. Inspector General, CBI, SIG, New Delhi.'' 53. These three documents make it clear that the whole of Volume-XXII which was received in India emanated from the Prosecution Authority of Stockholm through the Sweden Ministry of Justice in response to a request from Shri Galhotra of the CBI. This letter makes no sense of the claim that these documents we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of being proved?. My answer is clear - ''No''. I must accordingly prevent serious injustice and court's process and recall the order of this court made by me on 2.5.2004 and of Kapoor, J., on 4.2.2004 to the extent that it commands the trial court to frame charges when none were capable of being framed. 59. In the case of the Bofors Company, it was submitted, they challenged the order framing charge under Sections 464 and 465 IPC along with other charges under Section 120B IPC read with Section 420 IPC, Section 5 read with Section 5 of Prevention of Corruption Act and Section 420 and Section 161 IPC read with Section 165A IPC by a petition under Section 482 of the Code of Criminal Procedure which was disposed of by a common judgment dated 4.2.2004 by Kapoor, J, quashing several charges against the Bofors company while upholding charge under Section 465 IPC framed by the learned Special Judge on the assumption that the originals of the purported forged documents would be made available and produced as and when called for by the court during trial. 60. From the record it appears that an application dated 28.2.2004, moved by the Bofors Company for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently stamped and signed at the request of Indian Authorities.'' 63. An additional list of witnesses, particularly PW-94, PW-95, PW-96 and PW-97 with the note - ''Statements of aforesaid witnesses have not been recorded as they are formal witnesses for handing over of documents etc.'' was filed. 64. On the basis of the aforementioned submissions, counsel 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 position to inform the whereabouts of the originals in which case forgery cannot be proved nor a charge under Section 465 IPC be sustained. 65. Counsel seeks to rely upon the arguments made in the Hinduja Brothers' case as to the veracity of proceedings in the trial in the 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 since, according to him, question of law and admissibility of xerox copies is common and would govern both the cases. The question of law having been discussed in the prece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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