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PETITIONER:

THE JANATA DAL & ORS. ETC.

Vs.

RESPONDENT:

H.S. CHOWDHARY & ORS. ETC.

DATE OF JUDGMENT27/08/1991

BENCH:

PANDIAN, S.R. (J)

BENCH:

PANDIAN, S.R. (J)

SHETTY, K.J. (J)

CITATION:

1991 SCR (3) 752 1991 SCC (3) 756

JT 1991 (3) 497 1991 SCALE (2)400

ACT:

Criminal Trial--Criminal case registered against speci-

fied persons --Public interest litigation by third

party---Whether maintainable.

Constitution of India, 1950--Article 51-A--Public

interest litigation by a lawyer before Special Judge in the

case under Section 120B read with Sections 161, 162, 163,

164, 165A of IPC. Sections 5(2), 5(1)(d), 5(2)/5(1)(c),

Prevention of Corruption Act, pending--Maintainability of.

Criminal Procedure Code, 1973 - Sections 397, 401, 482-

Revisional jurisdiction of High Court--Whether invokable by

public interest litigation.

Criminal Procedure Code, 1973- Sections 397, 401, 482-

Suomoto action--Registering a case under the title "Court on

its motion v. State and CBI"--Legality of.

HEADNOTE:

On 22.1.90 a First Information Report was registered

under section 120-B read with sections 161, 162, 163, 164

and 165A of the Indian Penal Code read with Sections 5(2),

5(1)(d) and 5(2)/5(1)(c) of the PreventiOn of Corruption

Act, 1947 read with sections 409, 420, 468 and 471 of the

Indian Penal Code against 14 accused alleging that theyent-

ered into a criminal conspiracy, obtained illegal gratifica-

tion in the form of money from BOFORS, a Swedish company

through the agent firms/companies/persons as motive or

reward for such public servants who by corrupt or illegal

means or by otherwise dishonestly using their official

position as public servants caused pecuniary advantage to

themselves, BOFORS, the agents and others in awarding con-

tracts 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, heating of Union of India, forgery

and using of forged documents etc.

The C.B.I. commenced its,investigation during the course

of which statements of.witnesses were recorded and took into

their custody

753

various documents and files relating to this BOFORS deal.

The C.B.I. moved an application before the Special Judge

stating that the investigation of the case was to be con-

ducted not only in India, but also in Switzerland, Sweden

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and other countries, that an important aspect of .the inves-

tigation which was to be conducted in Switzerland was to

collect documentary and oral evidence relating to all as-

pects of the accounts in banks in Switzerland to which

remittances were made by' M/s. A.B. Bofors from Sweden; that

the, Director of the C.B.I. requested the concerned authori-

ties in Switzerland for freezing/blocking certain bank

accounts relevant to this case and the Federal Depart- .

ment of Justice and Policy, Switzerland moved Judge of

Geneva and the concerned Judge of Zurich; that the relevant

accounts in the bank had been blocked upto 28.2.1990 and

that request for judicial assistance from Switzerland in

this' matter, therefore, should be made by 28.2.1990 failing

which the Swiss Law obliges the withdrawal of instructions

to block the accounts the Swiss authorities would render

assistance in the investigation in Switzerland in accordance

with the mutual assistance agreement dated 20.2.1989 only on

receipt of a Letter Rogatory from the competent judicial

authorities in India.

The C .B.I. requested the Special Judge to send a Letter

Rogatory/ request 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 frus-

trated.

The Special Judge allowed the application of the C.B.L

Before the new Special Judge who assumed charge of the

office from the previous Special Judge, the appellant in

Crl. A. No. 306/91 filed a Public Interest Litigation under

Article 51-A of the Constitution of India praying that no

Rogatory letter be issued on the formal request of the CBI

unless the allegations against named persons were estab-

lished to the satisfaction of the Court; that no request for

Rogatory or 'freezing bank account be made to Swiss Govt.

unless the concerned persons were noticed and heard on the

subject; that the petitioner be permitted to join during

inquiry in the capacity of public interest litigant; that

inquiry u/s. 340, Cr.P.C. be held to determine the alleged

offence committed by various persons and till then all

proceedings of Rogatory be stopped.

The Special Judge dismissed the petition and issued Note

of Compliance and amended Letter Rogatory.

754

The public interest litigant filed a criminal revision

before the High Court. During the hearing of the case before

the High Court, several applications seeking

impleadment/intervention were filed.

Dismissing the revision, the High Court held that the

petitioner has no locus standi to maintain the petition and

consequently the interveners also had no right to seek for

impleadment or intervention and taking suo moto cognizance

of the matter for the reasons assigned. in his order the

judge directed issue of show cause notice to the CBI and the

State (Union of India) as to why the proceedings initiated

on the strength of the FIR dated 22.1.90 pending before the

Special Judge be not quashed; against which the criminal

appeals and the writ petition were filed in this Court.

CrI.A. No. 304/91 is preferred by the Janata Dal against

the order passed by the High Court rejecting its application

filed before the High Court requesting the Judge to recuse

himself from the proceedings. CrI.A. No. 305/91 is filed by

the Janata Dal against the order of the High Court rejecting

the application for impleadment of the appellant and other

interveners and also issuing suo moto notice to the State

and the CBI.

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Crl. A. No. 306/91 is directed by the original petition-

er who filed the public interest litigation before the

Special Judge challenging the first part of the order of the

High Court dated 19.12.90 .dismissing his petition on the

ground that he had no locus standi to file the petition.

CrI.A. No. 307/91 is preferred by the Janata Dal ques-

tioning the correctness of the earlier order passed by the

High Court refusing to allow the appellant's application for

impleaament/intervention.

Crl. A. No. 308/91 has been directed by the Communist

Party of India (Marxist) against the order of the High Court

refusing to allow its application for impleadment/interven-

tion.

CrI.A. No. 309/91 is preferred by india Congress (So-

cialist) against the main order of the High Court dated

19.12.1990 dismissing its application for impleadment and

taking up suo moto cognizance for quashing the FIR.

CrI.A. No. 310/91 is filed by the 'Union of India can-

vassing 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

755

maintainability of the public interest litigation as a

preliminary question, and for the deletion of the second

respondent. The permission for deletion was granted.

CrI.A. No. 311/91 is filed by the Union of India and the

CBI questioning the second part of the order of the High

Court dated 19.12.90 namely 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 no quashed.

The appellants in this appeal impleaded the High Court

through its Registrar as a respondent.

W.P. No. 114/91 is filed seeking certain directions

relating to Bofors matter and' for quashing the later part

of the order dated 19.12.90 of the High Court.

Dismissing CrI.A. Nos. 304-310/1991 and the Writ Peti-

tion No. 114/91 and allowing Crl. A. No. 311/91, this Court,

HELD: 1. Even if there are million questions of law to

be deeply gone into and examined in a criminal case regis-

tered against specified accused persons, it is for them and

them alone to raise all such questions and challenge the

proceedings initiated against them at the appropriate time

before the proper forum and not for third parties under the

garb of public interest litigants. [766H-767A]

2. The appellant in CrI.A. No. 306/91 has no locus

standi to file the petition under Article 5 1-A as a public

interest litigant, to invoke the revisional jurisdiction of

the High Court under Sections 397 read with section 401 of

the* Code of Criminal Procedure challenging the correctness,

legality or propriety of the order of the Special Judge and

to invoke the extraordinary jurisdiction of the High Court

under Section 482 of the Code of Criminal Procedure for

quashing the First Information Report and all other proceed-

ings arising therefrom on the plea of preventing the abuse

of the process of the Court. [767C-E]

3. The initiation of the present proceedings by the

public interest litigant under Article 51.A of the Constitu-

tion of India cannot come within the true meaning and scope

of public interest litigation. [767F]

4. The appellants namely, Janata Dal, Communist Party of

India (Marxist) and Indian Congress (Socialist) equally have

no right of seek-

756

ing their impleadment/intervention. For the same reasons,

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the petitioner in W.P. (Crl.) No. 114/91, has no right to

file the Writ Petition as a public interest litigant. 1767G]

5. The suo moto action of the High Court in taking

cognizance in exercise of the powers under Sections 397 and

401 read with Section 482 of the Code based on the convolut-

ed and strained reasoning and directing the office of the

High Court to register a case under the title Court on its

motion v. State and CBI cannot be sustained. [767H-768A]

6. The directions of the High Court calling upon the

CBI and the State to show cause as to why the proceedings

initiated on the strength of the First Information Report

dated 22.1.90 be not quashed, cannot be sustained. [768B]

7. All the proceedings initiated in pursuance of the

First Information Report dated 22.1.90 relating to Crime No.

RCI(A)/90-ACU-IV on the file of the Special Judge including

the issuance of the Letter Rogatory/request as they stand

now, remain unaffected and they can be proceeded with in

accordance with law. [768D-E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 304

of 1991.

From the Order dated 17.12. 1990 of the Delhi High Court

in Criminal Misc. No. 2656 of 1990.

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 Kati-

yar, P.N. Bhan, R.K. Dixit and A.M. Khanwilkar for the

appearing parties.

Nalla Thampy Thera--petitioner-in-person.

The following Order of the Court was delivered:

S. RATNAVEL PANDIAN, J. A brief resume of the facts

which has given rise to the above appeals and Writ Petition

would be necesSary to appreciate the unsavorous controver-

sies 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 Swiss authorities would

remove the blocking order on 31.8.91 and the account holders

would withdraw the large funds, running into millions of

dollars (equivalent to crores of rupees)" and

757

prayed that the judgment may be pronounced by the end of

August 1991 lest miscarriage of justice would be caused, and

(2) that the learned'Additional SoliCitor General, Mr. Altar

Ahmed appearing on behalf of the Union of India and CBI on

10.8.91 reaffirmed the above statement of the Union of India

and requested that the C.B.I. should be allowed to proceed

with the investigation without any interruption or' hin-

drance so that the investigation may be speeded up thereby

meaning that the wheels of investigation already started

moving on, should be permitted to be proceeded with unfet-

tered and untrammelled so that the valuable evidence may be

obtained from the Swiss Bank through their authorities

without further loss of time, otherwise the account. in the

Swiss Bank- now frozen may be defrozen.

The Central Bureau of Investigation/Delhi police Estab-

lishment/Anti Corruption Unit-IV; New Delhi registered the

First Information Report dated 22.1.90 relating to Crime No.

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RCI(A)/90 -ACU--IV under Section 120-B read with Sections

161, 162, 163, 164 and 165A of the Indian Penal Code read

with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the Preven-

tion of Corruption Act 1947 (herein referred to as P.C. Act)

read with sections 409,420,468 and 471 of the Indian Penal

Code against 14 accused of whom 3 are named, they being (1)

Shri Martin Ardbo, former President of M/s A.B. Bofors,

SWeden (Accused No. 1); (2) Shri Chadha alias Win Chadha,

s/o Shri Assa Nand, President of M/s Anatronic General

Corporation/ Anatronic General Companies Ltd., C/4, Main

Market, Vasant Vihar, New Delhi (Accused No. 3) and Shri

G.P. Hinduja, New Zealand House, Hay market, London SW-1

(Accused No. 7). The rest of the 11 accused are stated in

general as Directors/employees/holders/beneficiaries of

account code and public servants of the Government of India.

The core of the allegations is that these accused, named and

unnamed, entered into a criminal conspiracy, obtained ille-

gal gratification in the form of money from BOFORS, a Swed-

ish company through the agent firms/companies/persons as

motive or reward for such public servants who by corrupt or

illegal means or by otherwise dishonestly using their.

official position as public servants caused pecuniary advan-

tage to themselves, BOFORS, the agents and others in award-

ing contracts to BOFORS for the supply of guns to the Gov-

ernment 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 ap-

pears 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

758

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

ultimate beneficiaries of the payments'1 made by M/s A.B.

Bofors and that under the procedure followed by banks in

Switzerland, an authorised signatory can operate an account

for the benefit of certain other persons regarding whom the

authorised signatory has to submit certain declarations to

the concerned bank and, therefore, it is very essential for

the investigation of this case that the documentary and oral

evidence should be collected regarding this' as well as the

other aspects of the bank accounts in Switzerland. In the

said application after referring to the exchange of letters

dated 20.2.89 between the Government of India and Switzer-

land for mutual assistance agreeing that the Authorities of

both the countries shall provide to each other the widest

measure for assistance in the investigation of criminal

matters, it has been stated that the competent authority to

ask for assistance in India and abroad is the Court/Tribu-

nal/Judge or Magistrate exercising jurisdiction. The Direc-

tor of the C.B.I. sent a request dated 23.1.1990 and supple-

mented by another request dated 26.1.1990 to the concerned

authorities in Switzerland for freezing/blocking certain

bank accounts relevant to this case and the Federal Depart-

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ment of Justice and Police, Switzerland moved Shri Parrau-

din, Judge of Geneva and the concerned Judge 'of Zurich who,

on being prima facie convinced of dual criminality and the

need for investigation in Switzerland, froze the relevant

bank accounts in this regard on 26.1. 1990 as intimated by

the Federal Department of Justice and Police through the

Embassy of India in Switzerland and that as per this infor-

mation, the relevant accounts in the bank have been blocked

upto 28.2.1990 and that request for judicial assistance from

Switzerland in this matter, therefore, should be made by

28.2.1990 failing which the Swiss Law obliges the withdrawal

of instructions to block the accounts and that .the Federal

Department of Justice and Police at Berne which corresponds

to the Ministries of Law and Home, Government of India, have

assured that the Swiss authorities would render assistance

in the investigation in Switzerland in accordance with the

mutual assistance agreement dated 20.2.1989 only on receipt

of a Letter Rogatory from the competent judicial authorities

in India.

On the above pleadings, the C.B.I. requested the Special

Judge

759

to send a Letter Rogatory/request. 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 con-

duct the necessary investigation and to col-

lect 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 assistance agreement dated

20.2.89 etc. etc. The Court finally made a note reading

thus:

"Needless to mention that no observation made

in this order shall tantamount to expression

of opinion at any subsequent stage of enquiry

or trial."

When the matter stood thus, Shri V.S. Aggarwal on the

strength of the notification issued by the Administrator of

the Union Territory of Delhi assumed charge as a Special

Judge inplaCe of Shri R.C. Jain. Before Shri Aggarwal, the

Special Judge, Shri Harinder Singh Chowdhary, an Advocate

filed a Public Interest Litigation by filing Criminal Mis-

cellaneous Case No. 12/90 under Article 51-A of the Consti-

tution of India seeking the following prayers which we are

reproducing hereunder:

"In the premises your petitioners humbly

request that in order to maintain the dignity,

prestige and the fair name of the country and

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the ideals enshrined in the Constitution that

no rogatory letter be issued on the formal

request of the CBI unless the allegations

against named persons are

760

established to the satisfaction of this Hon'

ble Court:'

It is further requested that no

request for Rogatory or freezing bank account

be made to Swiss Govt. unless the concerned

persons are noticed and heard on the subject:

It is further requested that the

petitioner may be permitted to join during

inquiry before this Hon'ble Court in the

capacity of public interest litigant.

It is further requested that inquiry

u/s 340 Cr.P.C. be held to determine the

alleged offence committed by various persons

and till then all proceedings of Rogatory be

stopped.",

The Special Judge, namely, Shri V.S. Aggarwal by his

considered judgment dated 18.8.1990 dismissed the petition

holding "this request of the learned counsel cannot be

accepted." Finally, the learned Judge made the following

note:

"Put up on 30.9. 1990 for arguments on the

question as to whether any action under Sec-

tion 340 of the Code of Criminal Procedure is

to be initiated or not. No opinion on the

merits of the main case is being expressed."

The Special Judge then issued ('1) Note of Compliance

and (2) Amended letter rogatory on 22.8.90.

Shri Harinder Singh Chowdhary, the public interest

litigant on being aggrieved by the order dated 18.8.90 of

the Special Judge filed a criminal revision before the High

Court of Delhi under Sections 397/ 482 of the Code of Crimi-

nal Procedure and raised several questions of law challeng-

ing 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 pro-

ceedings 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 applica-

tion.

(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 criminal-

ity 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

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Miscellaneous (Main) NO. 1821 of 1990 on the file of the

High Court of Delhi. During the hearing of the above case

before the High Court, several applications seeking implead-

ment/intervention were filed in the proceedings among which

one was filed by Mr. Prashant Bhushan, another by Mr. N. Ram

and some more by various political parties.

Mr. Justice M.K. Chawla who heard the Crl. Misc. (M)No.

1821/90 passed an order dated 3.12.90 directing all the

applications for intervention to be kept on record and

observed. "The interveners will be heard only if the Court

feels the necessity of hearing further arguments after the

conclusions of the arguments of ASG appearing for the GOI

and the CBI". Thereafter on 6th and 7th December 1990, Mr.

Justice M.K. Chawla heard the arguments advanced on behalf

of the CBI as well of the Union of India. While it was so,

the Janata Dal etc. approached this Court by filing a Spe-

cial Leave Peti.tion (Criminal) No. 2320 of 1990 and this

Court on 10.12.90 upon being mentioned and hearing the

learned counsel for the parties, passed the following order:

"We find on 3.12.90 the learned Judge indicat-

ed in his order that several applications had

been filed by different people for implead-

ment/intervention in the proceedings and the

learned Judge observed that these applications

would be heard and if necessary arguments on

'behalf of the intervener could be permitted

after other counsel are heard. Grievance has

been made that these applications

762

have not been formally disposed of by the

Court. We are of the view that the learned

Judge should dispose of these applications by

a judicial order before the matter is reserved

for judgment and in case the applications are

not accepted, judgment should not be delivered

for at least 2 days after such an order on

these writ ,petitions is made to enable them

to move this Court."

It appears that in compliance of the above directions of

this Court, Mr. Justice Chawla heard Mr. Ram Jethmalani who

appeared on behalf of Janata Dal and Mr. Prashant Bhushan on

11.12.90. The learned counsel, Mr. Jethmalani orally re-

quested Justice Chawla to recuse himself from the case which

request was rejected by the learned Judge. Thereafter, a

petition for recusation was filed which was also dismissed

on 17.12.90. After hearing the learned counsel for Mr. H.S.

Chowdhary as well for the interveners, the final order was

passed by Mr. Justice Chawla on 19.12.90, the relevant

portion of which 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 exercis-

ing my powers under Sections 397 and 401 read

with Section 482 of the Code, and direct the

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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.

763

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 consequently interveners also have no right to seek for

impleadment or intervention and that the learned Judge

having held so, took suo rnoto cognizance of the matter for

the reasons assigned in his order and directed issue of show

cause notice to the CBI and the State (Union of India) as to

why the proceedings initiated on the strenth of the FIR

dated 22.1.90 pending before the Special Judge be not

quashed. It was at this stage, all these criminal appeals

and the writ petition have been filed in this Court. This

Court on 20.12.90 in Criminal Appeal No. 304/91 (arising out

of SLP Crl. No. 2476/90 filed by the Janata Dal) passed the

following order granting interim stay:

" ...... In the meantime, the reasons leading to registra-

tion of the suo moto proceedings would not be operative.

There shall be interim stay of proceedings including hearing

before the High Court."

In order to understand the scope of each of the criminal

appeals and the prayer made therein, we are presently giving

a brief note of the appeals and the writ petition.

Criminal Appeal No. 304/91

This appeal. is preferred by the Janata Dal against the

order dated 17.12.90 passed by the High Court rejecting its

application Crl. (M) No. 2656/90 in Crl. Misc. (M) No. 182

1/90 filed before the High Court requesting the learned

Judge to recuse himself from the proceedings.

Criminal Appeal No. 305/91

This appeal is filed by the Janata Dal against the order

of the High Court dated"19.12.90 rejecting the application

for impleadment of the appellant and other intervences and

also issuing suo moto notice to the State and the CBI.

Criminal Appeal No. 306/91

This appeal is directed by Mr. Harinder Singh Chowdhary

(the original petitioner who filed the public interest

litigation before the Special Judge) challenging the first

part of the order of the High Court

764

dated 19.12.90 dismissing his petition on the ground that he

has no locus standi to file the petition.

Criminal Appeal No. 307/91

This appeal is preferred by the Janata Dal questioning

the correctness of the earlier order dated 3.12.90 passed by

the High Court refusing' to allow the appellant's applica-

tion for impleadment/ intervention.

Criminal Appeal No. 308/91

The Communist Party of India (Marxist) has directed this

appeal against the order of the High Court dated 3.12.90

refusing to allow its application for impleadment/interven-

tion.

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.

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-

,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 direct-

ing 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 the appellants in this

appeal have impleaded the High Court through its Registrar

as a respondent.

765

Writ Petition No. 114/91.

This petition is filed by one Dr. P. Nalla Thampy Thera

seeking certain directions relating to Bofors matter and for

quashing the later

part of the order dated 19.12.90 of the High Court.

Mr. Anand Dev Giri, the learned Solicitor General as-

sisted by M/s Anil Katyar and Ashok Bhan and thereafter the

present Additional Solicitor General Mr. Altar Ahmed, Mr. A.

Subba Rao and Mr. A.M. Khanwilkar, Advs. appearing on behalf

of the Union of India as well as the CBI; Mr. Ram Jethmalani

and Mr. Shanti Bhushan, both learned senior counsel assisted

by Mr. Prashant Bhushan appearing in Criminal Appeal Nos.

304,305 and 307 of 1991 and Mr. K.G. Bhaghat, the learned

senior counsel appearing in Criminal Appeal Nos. 306 and 305

of 1991 on behalf of Mr. H.S. Chowdhary assisted by Mr. M.N.

Shroff, besides a battery of lawyers advanced their respec-

tive arguments raising manifold questions of law with refer-

ence to the various provisions of the Constitution of

India, Indian Penal Code, Code of Criminal Procedure

and.other Acts and the Memorandum of Under standing etc. for

a very considerable length of time totally running for 34

full days and laid stress upon a host of decisions in sup-

port of their respective cases. The introverted and extro-

verted rhetorical submis- sions made by all the learned

counsel were punctuated sometimes with inflammatory re-

marks, occasionally with discordant and embittered notes as

well as esoteric statements, intermittently with political,

over tones, but at the same time with admirable ability

exhibiting their profound knowledge in criminal law. In

fact, each one of them was trying to outwit and score a

march over the other. In this connection, it may be pointed

out that the present Additional Solicitor General. Mr. A|tar

Ahmed has declared unambiguously and p, erspicuously that he

is in full agreement with the argument of the former Solici-

tor General Mr. A.D. Giri and that his present articulation

serves only as supplement to that of the former Solicitor

General. Though the entire submissions made by the former

Solicitor General are not being extracted in this short

order, we feel that it would be appropriate to briefly refer

to the core of the submissions of the learned Solicitor

General, Mr. A.D. Giri. The learned Solicitor General stren-

uously urged that Mr. H.S. Chowdhary claiming to be a public

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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

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increasing uncharitable and unwarranted criticism and vili-

fication and also scurrilous attack, with remarkable resil-

ience 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 not at present

giving the details of the points urged except observing that

the ques-tion as to whether the laws are so petrified as to

unable to respond to the challenges made will be dealt with

in detail in our main judgment. As mentioned albeit we, in

order to avoid further delay in these matters, are inclined

to give only our conclusions, the reasons in support of

which will follow in our detailed judgment at a later stage.

It is most relevant to note that none of the appellants

before this Court save the Union of India and CBI is con-

nected in any way with the present criminal proceeding

initiated on the strength of the First Information Report

which is now sought to be quashed by Mr.. H.S. Chowdhary.

Although in the F.I.R., the names of three accused are

specifically mentioned none of them has been impleaded as a

respondent to these proceedings by anyone of the appellants.

Even Mr. Martin Ardbo, former President of M/s A.B. Bofors,

who was impleaded as a proforma respondent in Criminal

Appeal No. 310/91 has been given up by the Solicitor Gener-

al. Therefore, under these circumstances, one should not

lose sight of the significant fact that in case this Court

pronounces its final opinion or conclusions on the issues

other than the general issues raised by the appellants as

public interest litigants, without hearing the really af-

fected person/persons such opinion or conclusions may, in

future, in case the investigation culminates in filing a

final report become detrimental and prejudical to the in-

dicted accused persons who would be totally deprived of

challenging such opinion or conclusions of this 'apex Court,

even if they happen to come in possession of some valuable

material to canvass the correctness of such opinion or

conclusions and consequently their vested legal right to

defend their case in their own way would be completely

nullified by the verdict now sought to be obtained by these

public interest litigants.

Even if there are million questions of law to be deeply gone

into

767

and examined in a criminal. case of this nature registered

against specified accused persons, it is for them and them

alone to raise all such questions and challenge the proceed-

ings initiated against them at the appropriate time before

the proper forum and not for third parties under the garb of

public interest litigants. '

We, in the above background of the case, after bestow-

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ing-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 Author-

ities 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 chal-

lenging 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

proceedings by Mr. H.S. Chowdhary under Article 51-A of the

Constitution of India cannot come within the true meaning

and scope of public interest litigation.

3. Consequent upon the above conclusions (1) and (2), the

appellants namely, Janata Dal, Communist Party of India

(Marxist) and Indian Congress (Socialist) who are before

this Court equally have no right of seeking their implead-

ment/ intervention. For the same reasons, Dr. P. Nalla

Thampy Thera also has no right to file the Writ Petition

(Crl.) No. 114 of 1991 as a public interest litigant.

4. Having regard to the facts and circumstances of the case,

the suo moto action of Mr. Justice M.K. Chawla in taking

cogni-

768

zance in exercise of the powers under Sections 397 and 401

read with SeCtion 482 of the Code based on the convoluted

and strained reasoning and directing the office of the High

Court of Delhi to register a case under the title Court on

its motion v. State and CBI cannot be sustained.

5. Consequent upon the above conclusion No. (.4), we hold

that the directions of Mr. Justice M.K. Chawla calling upon

the CBI and the State to show cause as to why the proceed-

ings initiated on the strength of the First Information

Report dated 22.1.90 be not quashed, cannot be sustained.

In the result, we agree with' the first part of the

Order dated 19.12.90 of Mr. Justice M.K. Chawla holding that

Mr. H.S. Chowdhary and other intervening parties have no

locus standi. We, however, set aside the second part of the

impugned order whereby he has taken suo moto cognizance and

issued show cause notice to the State and CBI and according-

ly the Show cause notice issued by him is quashed.

In view of the above conclusions, all the proceedings

initiated in pursuance of the First Information Report dated

22.1.90 relating 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.

In Summation:

Criminal Appeal Nos. 304,305,306, 307,308 and 309 of

1991 are dismissed. Criminal Appeal No. 310 of 1991 filed by

the Union of India against .the order dated 5.9.90 of the

High Court is dismissed in view of the fact that the said

order does not survive for consideration on the passing of

the final order dated 19.12.90. The Writ Petition No. 14 of

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1991 is also dismissed.

Criminal Appeal No. 311 of 1991 filed by Union of India

and CBI is allowed for the reasons stated above.

V.P.R. Crl. A. Nos. 304-310/1991 and

W.P. No. 114/91 dismissed

Crl. A. No. 311/91 allowed.

769