Delhi District Court
Rc No.1(A)/90 ("Cbi vs Ottavio Quattrocchi") Dod: 04.03.2011 on 4 March, 2011
RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI
RC1(A)/90
CBI/ACUIV/SIG/ND (Bofors Case)
CBI V/s Ottavio Quattrocchi
Unique Case ID No.: 02401R6227212004
04.03.2011
O R D E R:
By this order, I shall dispose off application U/s 321 Cr.P.C, filed by learned Special Public Prosecutor of CBI, Shri U.S Prasad, seeking withdrawal of the case against accused Mr.Ottavio Quattrocchi (hereinafter referred to as "Q"). This application was filed on 03.10.2009. Alongwith the application, a letter dated 28.09.2009 of the Government of India, Ministry of Personnel, PG & Pensions was also filed, whereby the Central Government has conveyed its "approval" to the proposal of CBI for moving this court for obtaining consent to withdraw prosecution against "Q".
2. This application was opposed by two persons namely Shri Ajay Kumar Aggarwal, Advocate (hereinafter referred to as "Aggarwal") and Shri Siddharth Gupta, Advocate (in the capacity of President of a society namely "Nirdhan Nishulk Kanooni Sahayata Samiti") (hereinafter referred to as "Gupta").
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3. When the arguments on this application commenced, the learned Additional Solicitor General of India, Shri P.P Malhotra, raised a preliminary objection that "Aggarwal" and "Gupta" do not have "locusstandi" to oppose this application and argued that application U/s 321 Cr.P.C is necessarily between the Public Prosecutor and the Court. However, in the larger interest of justice, this court permitted "Aggarwal" and "Gupta" to advance arguments as "Amicus Curiae". However, at that stage, it was left open as to whether they had "locusstandi" to oppose this application or not. I will deal with this aspect a little later.
4. This case has a chequered history. The facts of the case in brief, required for the disposal of this application, succinctly stated are as under:
FACTS ABOUT BOFORS CONTROVERSY:
5. The Indian defense purchase policy, till 1984, allowed foreign bidders to have their Indian gents. However, they were required to furnish details of their Indian agents, if any, to the Government, in a prescribed proforma. Subsequently, the Govt. of India in consultation with the Defence Department, made a uniform policy, prescribing that "agents" were not to be allowed in Indian defense purchases. If any bidder had maintained one, the amount so payable to agent by the supplier, was to be reduced from the quoted deal. The revised policy was to ensure that the deal was on a principal to principal basis, to avoid undesirable consequences which may arise out of Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 2 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 such arrangement, to save the cost to the defense budget and thus to the public exchequer.
6. In respect of the Bofors gun deal, at the relevant time, there were four bidding firms involved in the bidding of the gun deal, namely, M/s Sofma (France), M/s Bofors (Sweden), M/s International Military Services (Britain) and M/s Voest Alpine (Germany). These bidders had furnished the requisite information about their agents in India.
7. M/s Bofors of Sweden also, in its declaration dated May 19, 1984, under the signature of Hans Ekblom, Vide President (Marketing), had informed that - W.N. Chadha of M/s Anatronic General Corporation, C4, Main Market, Vasant Vihar, New Delhi 110057, was their agent, and that, apart from W.N. Chadha, Hersh W. Chadha, Marketing Director of M/s Anatronic General Corporation, B.B. Bhatnagar (retired) and Brig. A.L. Verma (retired) were designated:
i) to liaise with the Government of India for the contract;
ii) to liaise with the Indian Authorities.
8. Consequent to the changed defense purchase policy, the Defense Department, asked M/s Bofors on May 3, 1985, to dispense with the services of its declared agent and comply with such Indian Defense policy requirements. Bofors did not respond immediately and as late as on March 10, 1986 informed the Defense Secretary that, Bofors "do not have any Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 3 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 representative/ Agent especially employed in India for this project". However, for administrative services, such as hotel bookings, transportation, forwarding of letters, telexes, etc., were using a local firm, Anatronic General Corporation, C4, Main Market, Vasant Vihar, New Delhi.
9. Be that as it may, on March 24, 1986, a contract number 6(9)/84/D/(GS.IV), was entered into between the Govt. of India and M/s Bofors, after approval by the then Prime Minister, who was also the Defense Minister, for supplying four hundred FH 77B systems along with vehicles, ammunition and other accessories, at a total cost of SEK 8,410,660,984 [equivalent approximately to Rs. 1437.72 crores (as per the exchange rate on March 21, 1986, SEK = 1.7094 Rs. Without reducing any agent representation]. The aforesaid contract was signed by S.K. Bhatnagar for and behalf of the Govt. of India and by Martin Ardbo, President Bofors and also by Anders G. Cariberg, president and Chief Executive Officer of Nobel Industries, for and on behalf of M/s. Bofors.
10. As per the terms of payments stipulated in this contract, 20% of the total amount of the contract (with the exclusion of any amount related to services) was to be paid by the buyer, i.e., Govt. of India, in advance, within 30 days from presentation by the seller, i.e. M/s Bofors, of an advance payment guarantee. On receipt of the advance payment guarantee from Bofors on April 7, 1986, the advance payment of SEK 1,682,132,196.80 Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 4 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 (Rs.296.15 Crore), equivalent to 20% of the contract value was paid to M/s Bofors on May 2, 1986.
11. From here the events took a turn. On 16.04.1987, i.e, over a year after the said contract was executed, when the advance money had been paid by the Govt. of India as per the terms of the contact and after delivery of the gun systems had started, a Radio Broadcasting channel "Dagens Eko" of the Swedish Radio, came out with a sensitive news. It unfolded that Bofors had violated the Swedish Law by managing to obtain this Gun Supply contract from the Govt. of India, amongst other things, due to the fact that local agents had been paid large amounts in "bribes".
12. It further stated that the agents had helped Bofors in getting the contract by dubious means with the help of local contacts and support within the - Indian Military Authorities, the Bureaucracy and concerned politicians. The illicit payments to the agents and others were said to have been made by transactions in secret bank accounts in Switzerland.
13. This news became a center of media & political attention in India also and was intensely reported everywhere, raising very sensitive issues of Indian Defense Policies, corruption, manipulations etc. The Govt. of India acted on these disturbing events, and on 2141987, made a formal request to the Government of Sweden for an investigation into the allegations. Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 5 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
14. The Swedish Government accepted the request of the Govt. of India and ordered an enquiry by its organization, the Swedish National Audit Bureau (SNAB). The SNAB submitted its report to the Swedish Government of June 01, 1987, which was forwarded on June 04, 1987 to the Govt. of India. SNAB report, interalia stated that considerable amounts were paid to some agents by M/s A.B Bofors.
15. SNAB also confirmed that payments to the tune of SEK 170250 million were indeed made by Bofors in connection with this Defense contract to its previous agent in India, but the names of the recipients were not mentioned.
16. Facts thus emerged from SANB report that despite having full knowledge about the policy of the Govt. of India that there should not be any agent whatsoever in this deal, Bofors continued with its old agent. Further, the amount such commission instead of reducing from price was paid to agent and related parties. Bofors thus acted in violation of the Indian defense policies and rules and harmed the public exchequer, besides committing breach of propriety etc.
17. It emerged further that despite the Indian Govt's insistence not to appoint or pay any agent, Bofors entered into a fresh consultancy agreement with M/s. AE Services Limited of U.K. On November 15, 1985 at the behest Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 6 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 of one "Q", an Italian. According to this agreement, M/s. AE Services was appointed as a consultant to M/s. Bofors for getting the award of the contract for 155 mm gun systems from the Govt. of India, to perform the following services :
(i) to support Bofors in its bid for the contract according to instructions of Bofors;
(ii) to keep Bofors informed of the updodate situation and progress of negotiations.
18. Bofors was to pay a fee equivalent to 3% of the total value of the contract pro rata with the receipt of the payments. As per its terms, the Agreement was to cease automatically on April 1, 1986, if by this date, the contract was not awarded by the Govt. of India to Bofors. Thus, M/s AE Services were to get the fees only if the contract was, in fact, awarded a week before that date. It thus emerged that Bofors deliberately suppressed the fact of their aforesaid Agreement dated 15.11.1985 with M/s. AE Services in their letter dated 10.03.1986, addressed to the Ministry of Defense, in terms of disclosure and reducing the cost of the deal as stipulated.
19. Investigation revealed that the said "Q" had contacted Myles Tweedale Scott, Director of M/s. AE Services Limited, sometime before 7.8.1985, for the purpose of the said agreement and was instrumental in bringing about the said agreement between M/s. AE Services Limited and M/s. Bofors. "Q" remained in India from 28.02.1965 to 29.07.1993, except for Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 7 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 a brief interval from 04.03.1966 to 120.06.1968. He was a Certified Chartered Accountant by profession, working with M/s. Snamprogetti, an Italian multinational company (MNC) providing the services of designing, engineering, management of construction and the training of personnel in the sector of oil refineries, gas processing, petrochemicals, fertilizers and pipelines. Neither Snamprogetti, nor "Q" had any experience of guns, gun systems or any related defense equipments.
20. It emerged that after payment of SEK 1,682,132,196.80 (Rs. 29615.00 Lakhs), equivalent to 20 % of the contract value, to Bofors on May 2, 1986 by the Govt. of India, Bofors remitted a sum of SEK 50,163,966.00 (equivalent to US $ 7,343,941.98), on September 03, 1986, to A/c No. 1805153 of M/s AE Services Limited at Nordfinanz Bank, Zurich. This Account of M/s AE SERvices Limited C/o Mayo Associates SA, Geneva, had been opened only a fortnight earlier, on August 20, 1986, by Myles Tweedale Stott as its Director. This amount of SEK.50,463, 966.00 works out to be exactly 3% of the amount of advance paid by the Govt. of India to Bofors and was, thus, perfectly in accordance with the terms set out in the A.E. Services Ltd. Bofors Agreement dated November 15, 1985.
21. From this Account of M/s. AE Services, an amount totaling US $7,123,900 was transferred ($ 7,000,000 on September 16, 1986, and $ 123900 on September 29, 1986) to Account No.254.561.60W of M/s. Colbar Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 8 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 Investment Limited Inc., Panama with the Union Bank of Switzerland, Geneva. An amount of US $ 7,943,000 was further transferred from the above said Account of M/s. Colbar Investments Limited Inc. on July 25, 1988, to Account No.488.320.60 X of M/s. Wetelsen Overseas, SA with the Union Bank of Switzerland, Geneva. Thereafter, on May 21, 1990 an amount of US $ 9,200,000 was transferred from the above said Account of M/s. Wetelsen Overseas, to Account No.123983 of International Investments Development Co., in Ansbacher (CI) Limited, St. Peter Port, Guernsey (Channel Islands). These Accounts of M/s. Colbar Investments Limited Inc., as well as M/s. Wetelsen Overseas, were being controlled by "Q" and his wife Maria Quattrocchi.
22. Enquiries further revealed that, while opening the Account of Colbar Investments Ltd. Inc. with the Union Bank of Switzerland, Geneva on March 30, 1984, "Q" had mentioned his address in India as "Colony East, New Delhi, India", which was a fake and nonexistent address.
23. Investigations in Guernsey (Channel Island) also revealed that the entire money, i.e. US $ 9.2 million, was further channeled to various Accounts in Switzerland and Austria, within a period of 10 days of its receipt in Guernsey. Letters Rogatory were issued by the Court of Special Judge, Delhi to the competent Authorities in Switzerland and Austria for judicial assistance in investigation in these countries.
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24. More investigative revelations demonstrated that Bofors also had another consultancy agreement with an entity incorporated in Panama, namely , "M/s. Svenska Inc." since the year 1978. Despite the Govt. of India's initial policy requiring foreign bidders to declare the agent in a prescribed proforma and its subsequent policy requiring foreign bidders to remove their agents and to reduce the commission amount from the deal price, Bofors yet again was found to be violating Indian national policies. By this so called agreement Bofors committed to pay a commission to M/s. Svenska Inc. out of any contract signed by Bofors in India, Sri Lanka, Nepal etc. This agreement was modified from time to time and it was agreed in January 1986 that commission to the extent of 3.2% of the exworks value would be paid to M/s Svenska Inc. Out of this, 2.24 % (two point two four per cent) of the total ex works value was to be paid without delay when the advance payment had been received by Bofors. The remaining 0.96% (point nine six per cent) of the exworks value was to be paid pro rata without delay when the payments for deliveries had been received by Bofors.
25. Letters Rogatory were issued by the Court of Special Judge, Delhi to Switzerland, Sweden, Panama, Luxembourg, Bahamas, Jordan, Liechtenstein and Austria, with a view to finding out other beneficiaries of the commission amounts.
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26. The documents received from the Swiss Authorities, in response to the letter by Rogatory, revealed that the following payments were made by Bofors to Svenska from their Account with Skandinaviska Enskilda Banken, Stockholm, on May 6, 1986.
SEK 113.39283.64 equivalent to US$ 16,070,412.80
SEK 28259820.64 FFR 27,957,875.84
SEK 28259820.92 CHF 7,346,128.29
SEK
18839879.98
XEU 2,720,363.87
Total SEK 188,398,805.18
A calculation will show that this a almost 2.24% of the total value of the contract i.e., SEK8410660984, exactly as per the terms of the aforesaid Agreement.
27. The following additional payments made by Bofors revealed that each additional payment works out to be exactly .96% of a particular invoice of Bofors and the date of payment also matches with the date of payment by the Govt. of India.
Invoice No., its date & date of Gross amount of Commission @ 0.96% (in payment Invoice (in SEK) SEKO) 1014271 dated 29.7.86 paid on 67,166,028 644,793.87 8.8.86 2010043 dated 20.2.87 paid on 66,657,160 639,908.75 2.3.87 102008 dated 19.2.98 paid on 9.3.87 13,981,805.92 134,225.34 2010136 dated 16.3.87 paid on 71,468,308 686,095.76 7.4.87 1010496 dated 23.3.87 paid on 27,195,139 264,456.18 2.4.87 and 1010488 dated 20.3.87 352,380 paid on 3.4.87 Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 11 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
28. Inquiries further revealed that, including the above payments, M/s. Bofors had paid an amount equivalent to SEK 192156200.05 during the period from April 24, 1986 to March 30, 1987 in the name of M/s. Svenska Inc. Panama, for the said deal with the Government of India, which were credited to Account No.99921TU of Mr. W.N. Chadha then resident of C5/7, Vasant Vihar, New Delhi (India) with Swiss Bank Corporation, Geneva. The said Account was opened on August 9, 1983 with initial deposit of US $160,000. For the said Account, Mr. W.N. Chadha had given a Powers of Attorney in favour of his wife Ms. Kanta W. Chadha and his son Hersh W. Chadha. It also emerged that the Board of Directors of M/s. Svenska Inc., Panama, in its meeting held on 30.4.1980, had authorised W.N. Chadha, then resident of C5/7, Vasant Vihar, New Delhi, to open and operate bank accounts of any type at any banking institution by a Power of Attorney, with the fullest rights and powers to substitute any one else's name in place of his own for the said purpose.
29. Investigations revealed that Mr. W.N. Chadha and "Q" had been transferring the funds received from Bofors frequently from one account to another and from one jurisdiction to another to avoid detection and to obliterate the trial of the money.
30. The advance payment of SEK 1,682,132,196.80 (Rs.296.15 Crores) equivalent to 20% of the contract value was disbursed by the Govt. of India to Bofors on May 2, 1986. The balance 60% of the contract amount Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 12 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 equivalent to SEK 6,728,528,787.60 was paid to Bofors during August 1986 to 1990, from time to time, against the deliveries. The investigations revealed that an amount of SEK 242.62 million was paid by M/s. AB Bofors, as commission, to Quattrocchi and W.N. Chadha through M/s. A.E. Services and M/s. Svenska, in contravention of the policy of the Govt of India not to allow middlemen/agents in the deal. No commission was to be paid by Bofors in connection with the contract. If any such stipulation in this regard did exist, the commission amount should have been reduced from the contract price. Thus, the Govt. of India had to pay excess amount of total SEK 242.62 million, which was passed on by Bofors to its agents Mr. W.N. Chadha and Mr. Quattrocchi against the express terms of contract.
31. It shall be pertinent to mention relevant dates in form of a chart to further corelate the events and history:
S. No. Date Particulars 1. 1975 Expert committee set up under Chairmanship of Lt. General K.V.
Krishna Rao which recommended induction of medium gun of 155 mm caliber - pg 157 of PB dated 12.04.2010
2. October, 1978 Mr. W.N. Chadha entered with AB Bofors for representation in India for a period of three years ending in September, 1981, which provided commission @ 2%.
3. March, 1981 The Representation Agreement between AB Bofors and Mr. W.N. Chadha extended for another period of three years. This was followed by another agreement with M/s Anatronic General Corporation for a period of three years.
4. March, 1980 Trials were conducted for guns whose tenders had been received April, 1982 by the Ministry of Defense pg. 157.
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S. No. Date Particulars
5. July, 1982 Army Headquarters sent a draft CCPA paper to the Ministry of
Defense in connection with procurement of guns. pg 157
6. October, 1982 Ministry of Defense asked Army Headquarters to prepare detailed evaluation report on the basis of the trials conducted. pg 157
7. December, The General Staff Evaluation Report of 1982 shortlisted the 1982 following guns (a) British, (b) Austrian, (c) French Sofma and (d) FH77B gun from Bofors, Sweden. pg 157 & 158.
8. May, 1984 AB Bofors accepted as late as 30.11.9/84 a revised contract to Mr. W.N. Chadha with reduced rates since Bofors had not been able to get any business in India.
9. May, 1984 Negotiating Committee set up a negotiate with the shortlisted companies. pg 158.
10. 18.08.84 to Negotiations were held between the short listed companies and the 28.08.84 Negotiating Committee.
11. 24.08.1984 Army Headquarters recommended that the British and Austrian systems were not acceptable and one again recommended Bofors, Sweden and Sofma, France - pg. 158159.
12. 30.11.1984 Mr. W.N. Chadha signed the revised Representation Agreement with Bofors which provided commission @ 0.25 % for a period of three years
13. End of 1985 Bofors informed Mr. W.N Chadha that as per the request of the Indian Prime Minister, Bofors could not employ any middlemen in the deal with the Indian authorities.
14. 03.01.1986 Bofors sent a letter to Mr. W.N. Chadha stating that all representation agreements between Anatroic/Mr. Chadha and Bofors stood rescinded as on 31.03.1985.
15. January, 1986 Mr. W.N. Chadha signed an Administrative Consultancy Agreement with Bofors under which he was to be paid 100,000 SEK per month irrespective of Bofors getting any business in India.
16. 17.02.1986 Army Headquarters submitted their final technical evaluation report stating that the Swedish Bofors gun had a clear edge over the French Sofma gun. pg. 159
17. 10.03.1986 Bofors confirmed that they did not employ any agent in India in Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 14 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 S. No. Date Particulars respect of the deal with Ministry of Defence for the FH77B gun deal--pg. 140.
18. 21.03.1986 Revised offer received from Bofors, Sweden -- pg. 159.
19. 22.03.1986 Revised offer received from Sofma, France --pg. 159.
20. 24.03.1986 The deal with Bofors was approved and MOU signed with the Government of Sweden --pg. 159.
21. 17.04.1987 Leading newspapers in India gave coverage to Swedish Radio Broadcast that bribes had been paid to senior Indian politicians and key Defence figures in connection with the Bofors gun deal. Pg. 140.
22. 04.06.1987 SNAB report submitted to Ministry of External Affairs pg. 143.
23. 29.07.1987 Union Minister of Defence, Mr. KC Pant, moved motion in Lok Sabha for appointment of a Joint Parliamentary Committee. Pg. 144.
24. 12.08.1987 Rajya Sabha also approved formation of JPC --pg 148.
25. 28.08.1987 JPC set up --pg 148.
26. 28.08.1987 JPC submitted its report giving a clean chit to Shri W.N. Chadha
-- paper book dated 12.04.2010.
32. As against "Q", the case of CBI is that on the basis of source information, certain facts and circumstances that became available, media reports, report of Swedish National Audit Bureau, certain facts contained in the report of Joint Parliamentary Committee (JPC) and the report of Controller & Auditor General of India, it was alleged therein that during the period between 198287, certain public servants entered into a criminal conspiracy with certain private persons/others, in India and abroad, and in pursuance thereto committed offence of bribery, cheating, swindling and Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 15 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 forgery, in respect of a contract dated 24.03.1986, entered between Government of India and AB Bofors of Sweden for supply of guns, towed vehicles and ammunition by AB Bofors to Government of India. A percentage of said amount of contract was remitted by AB Bofors in a clandestine manner to certain public bank accounts in Switzerland as "illegal gratification" for the benefit of certain public servants of the Government of India and their nominees. As per the chargesheet filed in the matter, the investigation had revealed that AB Bofors had obtained contract pursuant to entering into conspiracy with certain public servants, who were responsible for decision making process, even though the gun system offered by them was inferior to the other available alternatives. The investigation further revealed that in spite of "express policy" of the Government of India, M/s AB Bofors in conspiracy with "Q" and others appointed M/s A.E Services, UK as one of their agents through Agreement dates 15.11.1985 to secure the contract. "Q" was found instrumental in execution of contract with AB Bofors in November' 1985. AB Bofors were paid an amount equivalent to US $ 73,43,941.98 and the same was credited on 08.09.1996 in their bank account, ostensibly for this purpose. In part execution of letter rogatory, the Swedish authorities had made available copies of certain documents, duly authenticated, which revealed that the amount credited in the account of M/s AE Services was laundered further. After an interval of eight days only, the amount of US $ 71,23,900.00 was transferred in two instalments of US $ 7,00,000.00 and US $ 12,390.00 on 16.09.1986 and 29.09.1986 respectively to an account of M/s Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 16 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 Coalbar Investment Limited Inc., Union Bank of Switzerland, Geneva, Switzerland. This account was authorised to be operated and controlled by "Q" and his wife "Maria Quattorocchi". At the relevant time, "Q" was employed with M/s Snamprogetti (an Italian MNC) and was stationed in Delhi. In the relevant document, "Q" gave a nonexistent address in Delhi. It was further revealed that the aforesaid amount was again transferred on "Q's"
instructions to the account of M/s Wetelson Overseas, S.A of Panama on 25.07.1989 in the same bank. The said company was floated in Panama on 06.08.1989 and was dissolved on 07.08.1990, indicating that this company floated only to receive this money and used as "conduit" for paying illegal payments through the bank accounts, which could be operated and controlled by "Q" and his wife individually. While letter rogatory was under process, US $ 20,000.00 was again transferred from the account of M/s M/s Wetelson Overseas, S.A, in UBS, Geneva to InterInvestment Company for the benefit of International Investments Development Company, in Ansbacher (CI) Limited, St.Peter Port, Guernsey (Channel Islands) on 21.05.1990. As per the chargesheet, the entire transaction of payment by M/s AB Bofors to M/s AE Services and others were intended to mascuard the illgotten payment/ commission/bribe and thus the Government of India was defrauded and put to loss. It has been further stated that "Q" is the holder of Italian Passport and he left India abruptly in July' 1993. As such, a strong suspicion of his involvement in this case has been expressed.
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33. In this case, on 22.10.1999, CBI filed a chargesheet against Shri S.K Bhatnagar, Shri Win Chaddha, "Q", Mr.Martin Ardbo and M/s AB Bofors and thereafter on 09.10.2000 supplementary chargesheet was filed against Shri S.P Hinduja, Shri G.P Hinduja and Shri P.P Hinduja (hereinafter referred to as "Hinduja Brothers"). Since, presence of Mr.Martin Ardbo and "Q" was not being secured and unnecessary delay was taking place, the court of Ld.Special Judge, vide order dated 25.05.2001 separated the trial of "Q" and Mr.Martin Ardbo. However, later on Mr.Martin Ardbo expired and the proceedings against him abated. Similarly, S.K Bhatnagar and Win Chaddha also expired and proceedings against them also abated.
34. On the directions of CBI, a Red Corner Notice, bearing No. 5323/97 (A44/21997) had been issued against "Q" on 17.02.1997, pursuant whereto, he was arrested in Malaysia. However, vide order dated 02.12.2002, of the Ld.Sessions Judge at Kualalampur, Malaysia, he was discharged from the extradition case. The Court of Appeal at Kualalampur, Malaysia vide its judgment dated 13.12.2002 upheld the order of Sessions Court. The Federal Court of Malaysia also upheld the order of discharge of "Q" in extradition case vide its judgment dated 30.04.2003 and as such, the attempt of CBI in extraditing "Q" from Malaysia failed at three levels.
35. On 14.11.2002, the learned Special Judge had framed charges in the matter against M/s AB Bofors, Shri S.P Hinduja, Shri G.P Hinduja and Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 18 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 Shri P.P Hinduja. All the aforesaid persons challenged the framing of charges against them before the Hon'ble High Court of Delhi, by way of Criminal Misc. (Main) No.3938/03, which was disposed off by the Hon'ble High Court vide judgment dated 04.02.2004, interalia holding as under:
xxxxx
(i) Charges for offences punishable under Sections 120B/420 IPC and Section 5(2) r/w Section 5(1)(d) of Prevention of Corruption Act, 1947 and Section 165 A r/w Section 161 IPC against the petitioners for having entered into a criminal conspiracy with the public servants to cheat the Government of India and having abetted the public servants to commit criminal misconduct by abusing their official position and taken illegal gratification for awarding contract are quashed.
(ii) The charges that need to be framed against the petitioners P.P Hinduja, G.P Hinduja and S.P Hinduja for the offences punishable U/s 120 B/420 IPC for having entered into a criminal conspiracy between April, 1985 to March, 1986 to cheat the Government of India by fraudulently and dishonestly representing that there were no agents involved in the negotiation for the contract and further that the price quoted was reduced price proportionate to the amount of commission they would have otherwise paid to the agents and thereby induced the Government of India to award the contract in favour of Bofors and caused wrongful loss to the Government of India to the extent of amount they would have paid as commission to the agents viz. Hindujas, Win Chadha and Quattorocchi.
(iii) Charge for the offence punishable U/s 465 IPC for having made false documents as referred in the impugned order shall be framed against M/s A.B Bofors.
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 19 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
143. Since the cases were brought within the jurisdiction of the Special Judge merely by including the offence punishable U/s 5(2) of Prevention of Corruption Act, 1947 on account of criminal misconduct by public servants by abusing their official position by awarding the contract, so as to gain pecuniary advantage to Bofors and its agents and themselves and all other offences were triable by the Magistrate and since the charge for this offence has been held to be unsustainable, the cases against the petitioners, including those of Martin Ardbo and Mr.Quattrocchi shall stand transferred to the court of Chief Metropolitan Magistrate for framing of charges, as observed in this order.
143. In view of inordinately procrastinated investigation, CMM shall in order to maintain and restore the confidence of people in the effectiveness of administration of criminal justice, take up the case as far as possible on daytoday basis and try to conclude the trial and decide the case as expeditiously as possible. CBI shall also confine its evidence strictly in terms of the charges for the offences punishable U/s 120B/420 IPC against the petitioners and offence U/s 465 IPC against M/s A.B Bofors. Parties to appear before CMM on 23.02.2004. xxxxx
36. Pursuant to the aforesaid judgment of the Hon'ble High Court, this court, vide order dated 26.03.2004 framed charges against Hinduja brothers and M/s A.B Bofors U/s 420 IPC r/w Section 120 B IPC. The aforesaid order of this court was challenged before the Hon'ble High Court by way of Criminal Revision Petition No.271/2004, which was disposed off by Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 20 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 the Hon'ble High Court vide judgment dated 31.05.2005, interalia holding as under:
"67. From what has been noted and discussed above and on the basis of the statements made by the prosecution, no case cane be proceeded with in respect of the Hinduja Brothers or the Bofors Company. I, accordingly, allow Crl.M.A 169/2005 & 170/2005 in Crl.Rev.271/2004, Crl.M.AS 171/2005 & 172/2005 in Crl.Rev.272/2004, Crl.M.A 173/2005 & 174/2005 in Crl.Rev.273/2004 and Crl.M.C 763/2005. I quash all the proceedings against the Hinduja Brothers emanating from FIR/Case No.RC1(A)/90ACIIV/SIG/New Delhi and discharge them from the case. I also quash order dated 26.03.2004 of the Chief Metropolitan Magistrate framing charges against the Bofors Company and discharge the Company from the case. The bail bonds and surety bonds shall stand discharged. The record received from the trial court be sent back forthwith".
37. The CBI did not challenge the aforesaid two judgments before the Hon'ble Supreme Court and as such, the aforesaid judgments attained finality. It transpired from submissions of "Aggarwal" that he had filed an SLP against the judgment dated 31.05.2005, passed by the Hon'ble High Court of Delhi in Crl. Revision No.271/2004, which is pending disposal before the Hon'ble Supreme Court.
38. The grounds taken in this application for withdrawal of prosecution against "Q" are as under:
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 21 of 73
RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
(a) That 23 years have passed from the date of alleged offence and more than 19 years have elapsed after registration of the case.
(b) That all other coaccused have either died or proceedings against them have been quashed, including the proceedings against M/s A.B Bofors and the alleged beneficiaries of the contract by virtue of the judgments of the Delhi High Court and no appeals have been preferred by the CBI either against the order of Hon'ble Mr.Justice J.D Kapoor or the judgment of Hon'ble Mr.Justice R.S Sodhi.
(c) Even though there is an undertaking by M/s A.B Bofors prior to entering into the contract that they do not have any representative/agent specially employed in India, I notice that the original contract between M/s A.B Bofors and Government of India does not provide for any prohibition for employment or nonemployment of Indian or foreign agents. I also notice that full payments in regard to the contract have been paid to M/s A.B Bofors even after lodgment of FIR. I find that no steps to recover any monies were adopted against M/s A.B Bofors.
(d) In view of judgment of Hon'ble Mr.Justice J.D Kapoor, any allegations of corruption or conspiracy with public servants is knocked out.
(e) In any event, the attempts to secure the presence of Ottavio Quattrocchi from Malaysia and Argentina have failed. I find that the Malaysian Court has also touched upon the merits of the matter". Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 22 of 73
RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
39. I have heard the learned Additional Solicitor General of India and "Aggarwal" at length and have perused the entire material on record meticulously. However, "Gupta" stopped appearing in the matter after two or three hearings and as such, he could not be heard completely. Now, I propose to decide as to whether "Aggarwal" and for that matter even "Gupta" has "locusstandi" to oppose this application in "public interest". A perusal of record would reveal that "Aggarwal" has challenged the judgment dated 31.05.2005 of the Hon'ble High Court of Delhi against the discharge of "Hinduja Brothers", before the Hon'ble Supreme Court, where his SLP is lying admitted. He also appears to have filed several interlocutory applications from time to time as well as a Writ Petition before the Hon'ble Supreme Court and some directions were passed by the Hon'ble Supreme Court on his applications from time to time in public interest. The question which falls for consideration of this court is whether that is sufficient for him to have "locusstandi" to oppose this application before this court, particularly in view of the fact that this court does not have inherent powers, as contemplated U/s 482 Cr.P.C, whereas the Hon'ble Supreme Court has ample powers U/s 482 Cr.P.C as also under Article 136 of the Constitution. It is also apparent that this is neither a public interest litigation which is pending before this court, nor this court has jurisdiction to entertain any public interest petition, which the Hon'ble High Court has under Article 226 and 227 of the Constitution and Hon'ble Supreme Court under Article 32 of the Constitution has. The arguments of "Aggarwal" were that he is a public spirited citizen of Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 23 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 this country and has "locusstandi" to oppose this application in the "public interest".
40. It is necessary to take note of the meaning of the expression "Public Interest".
41. In Shroud's Judicial Dictionary, Vol.IV, 4th Edition, "Public Interest" is defined as under:
"Public Interest A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
42. In Black's Law Dictionary, 6th Edn., "Public Interest" is defined as follows:
"Public Interest Something in which the public, the community at large has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or National Government."
43. In case reported as, "1992(4) SCC 305", titled as, "Janta Dal V/s H.S Chaudhary", the Hon'ble Supreme Court considered the scope of "public interest litigation".
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 24 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
44. In para 26 of the aforesaid judgment, the Hon'ble Court observed as under:
xxxxx "26. Even if there are million questions of law to be deeply gone into and examined in a criminal case registered against specified accused persons, it is for 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 the third parties under the garb of public interest litigants."
xxxxx (Emphasis supplied)
45. Further, in para 53 of the said judgment, after considering what is "public interest", it was laid down as follows:
xxxxx
53. The expression "litigation" means a legal action, including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression "PIL" means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."
xxxxx
46. In para 62 of the aforesaid judgment, it was pointed as follows:
xxxxx
62. Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory, Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 25 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold."
xxxxx
47. In para 98 of the aforesaid judgment, it was further pointed as follows:
xxxxx
98. While this court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its processes to be abused by a mere busybody or a meddlesome interpoler or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
xxxxx (emphasis supplied)
48. In para 109 of the aforesaid judgment, it was further pointed as follows:
xxxxx
109. It is thus clear that only a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have a locusstandi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any other oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
xxxxx (emphasis supplied) Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 26 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
49. It is worth noting that H.S Chaudhary's case (supra), relates to the controversy in the present case itself. At the relevant time, one advocate namely Shri H.S Chaudhary, claiming to be the General Secretary of an Organisation namely "Rashtriya General Parishad" had filed a Crl. Misc. Petition before the learned Special Judge under Article 51 (A), interalia praying that no request for rogatory be made to Swiss Government. A further prayer was made therein that he should be permitted to join during enquiry before the Court. The learned Special Judge dismissed his aforesaid petition taking view that he had no "locusstandi", whereafter he filed a Criminal Revision Petition before the Hon'ble High Court of Delhi, raising multiple questions of law, challenging the legality and validity of not only the impugned order, but also the very chargesheet and FIR in this case. Even the Hon'ble High Court observed in its judgment that he did not have "locus standi". The Hon'ble Supreme Court also ruled in the matter that he did not have the "locusstandi". "Aggarwal" is as such, a second lawyer, who has shown similar demeanor, as was shown by Shri H.S Chaudhary, Advocate, who was held to have no "locusstandi" in this matter upto the Hon'ble Supreme Court.
50. This court during the course of hearing, on various dates noticed that on the succeeding day of each date of hearing, there would be newspaper reports about the arguments advanced in court by "Aggarwal" and some of the reports were even sensational, wherefrom it can be reasonably deduced Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 27 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 that "Aggarwal" is interested in attaining cheap publicity by going to the media persons after every date of hearing and playing trumpet of corruption in this case by public servants contrary to the judgments already passed by Hon'ble High Court of Delhi, by supplementing his own views about the case. It is depressing to note that on account of such trumpery proceedings before this court, innumerable days were wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. It is a fact that the courts, particularly at the subordinate level are flooded with cases which include matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death and facing gallows under untold agony, persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenus expecting their release from the detention orders etc., are all standing in a long serpentine queue for years with the fond hope of getting into courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for the glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 28 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of genuine litigants and resultantly, they lose faith in the administration of our judicial system (reference case reported as "(2004) 3 SCC 349", titled as, "Ashok Kumar Pandey V/s State of West Bengal").
51. Further, in case reported as, "AIR 1952 Raj.42", titled as, "Amar Narain Mathur V/s The State of Rajasthan", the Hon'ble Court observed as under:
xxxxx "3. .....A preliminary objection was raised by Mr.Pathak on behalf of the State of Rajasthan and his contention was that the applicant had no "locusstandi" and this court should not, therefore, hear his counsel.
The argument was that the applicant, Shri Amar Narain, was a complete stranger to the proceedings and had, therefore, no right to apply to this Court in revision. It was further urged that in a criminal case started at the instance of the State a stranger had no right to apply to this Court in revision when the Public Prosecutor had decided to withdraw from the prosecution."
"4. After hearing Mr.Pathak for the State of Rajasthan and Mr.Sinha for the applicant, we have come to the conclusion that the preliminary objection is well founded, and the applicant has no right to apply to this Court in revision in the circumstances. In criminal cases, it is the State which is in control of the proceedings, particularly where the prosecution is launched at the instance of the State. In cases, therefore, Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 29 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 in which the Public Prosecutor appears it is for him to decide whether he would continue with the prosecution or withdraw from it. If he decides to withdraw, he has the power to apply to the Court U/s 494 Cr.P.C, for giving consent to his withdrawal. This power cannot, in our opinion, be subject to the wishes of a third person even though he might be interested directly in the case. We may, in this connection, refer to two cases of the Patna High Court. In the first, "Gopi Bari V Emperor", "AIR (7) 1920 Patna 362", a case had been prosecuted by the police U/s 143 Penal Code. At a later stage, the Court SubInspector in charge of the prosecution applied for withdrawing from the case under Section
494. This was objected to by the complainant and withdrawal was thereupon refused. The accused then went up to the High Court and it was held that where a case had been started upon a police report, and the Court SubInspector wanted to withdraw from prosecution, the Court acted without jurisdiction in rejecting the prayer for withdrawal, simply because the complainant wanted to proceed with the case. It is further held that in such a case, the complainant had no "locusstandi" to control the proceedings.
xxxxx (Emphasis supplied)
52. In another case, reported as, "AIR (11) 1924 Patna 283", titled as, "Gulli Bhagat V/s Narain Singh", the Public Prosecutor applied for withdrawal from the case at a late stage. This prayer was allowed by the trial court and thereupon the complainant came to the High Court in revision. The revision was rejected with the following observations: Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 30 of 73
RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 xxxxx "Finally there is a deeper and indeed a fundamental reason for non interference which turns upon the position of a private prosecutor in prosecutions of cognizable offences. In our opinion, the private prosecutor has no position at all in the litigation. The crown is the prosecutor and the custodian of public peace and if if decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance. If, therefore, in the present case, the Court has allowed the Public Prosecutor to withdraw the case upon insufficient or improper grounds, the local Government, is the only authority who can take action for the correction of that error."
"6. The present applicant is even in a worse position than a private prosecutor, for he is in no way connected with these five cases. What he claims is that as a member of the public and Secretary of an Association, called "Janta Kashta Niwarak Sangh", he is interested in seeing that these cases, which involve embezzlement of public funds in three of them and bribery in two, should be thoroughly investigated and the guilt or innocence of the accused, three of whom hold important public offences, should be established in a court of law. This desire of the applicant may be commendable, but we are of opinion that it gives him no "locus standi" to come to this Court in revision. We, therefore, hold that the applicant has no "locusstandi" to be heard by counsel. We also intimated to the learned counsel for the applicant that we would only hear him as "amicus curiae".
xxxxx (Emphasis supplied) Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 31 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
53. There is another interesting aspect in the matter. In this case, "Aggarwal" passed on copies of several bundle of documents relating to this case, which were not certified copies of the original record from the Court. This Court made a pointed query to him to disclose the source of receipt of those documents, to which "Aggarwal" stated that somebody from the O/o CBI had left those documents at his office. Although, no issue on this point was joined by CBI, however, this clearly shows that an attempt on the part of "Aggarwal" was made to have the possession of official documents without following the process of law. This practice has been strongly depricated by the Hon'ble Supreme Court in case reported as, "(1998) Vol.VII SCC 273", titled as, "Dr.Duryodhan Sahu V/s Jitender Kumar Mishra", interalia holding as under:
xxxxx "The other interesting aspect is that in the PILs documents are being annexed without even indicating as to how the petitioner came to have possession of them. In one case, it was noticed that an interesting answer was given with respect to its possession. It was stated that a packet was lying on the road and when out of curiosity, petitioner opened it, he found the said papers. When such frivolous pleas to explain the possession of the documents are taken, the Courts not only should dismiss the petition, but also to impose exemplary costs. It is also desirable for the Courts to freeze the frivolous petition and dismiss them with costs as aforesaid, so that a message goes in the right direction that petition filed with oblique motives do not have the approval of the Courts."
xxxxx Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 32 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 (Emphasis supplied)
54. Some of the other judgments, which are relevant on the aforesaid point are as under.
55. In case reported as, "1976 (1) SCC 671" titled as, "Jasbhai Motibhai Desai V/s Roshan Kumar", the Hon'ble Supreme Court, held that the application of a busybody should be rejected at the threshold in the following terms:
xxxxx "37. It will be seen that in the context of "locus standi" to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories:
(i) person aggrieved
(ii) stranger
(iii) busybody or meddlesome interloper.
Persons in the last aggrieved are easily distinguishable from those coming under first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of justice. The High Court should do well to reject the applications of such busybodies at the threshold."
xxxxx (Emphasis supplied) Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 33 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
56. Hon'ble Justice Krishna Iyer in case reported as, "1981 (1) SCC 568", titled as, "Fertilizer Corpn. Kamgar Union (Regd.) V/s Union of India" in stronger terms stated:
xxxxx "48. If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him."
xxxxx (Emphasis supplied)
57. Even otherwise, State is the master of litigation, which controls the proceedings, particularly in cases where prosecution is launched at the instance of the State. Seeking withdrawal of the prosecution from the case is within the domain of Executive and this Court, not vested with inherent powers cannot allow private person to come and join the proceedings. A word of "caution" in these type of cases has already been sounded by the Hon'ble Supreme Court in a Constitution Bench judgment, reported as, "1987 (1) SCC 288", titled as, "Sheonandan Paswan V/s State of Bihar", in para 90 whereof, it was held as under:
xxxxx "90. Section 321 Cr.P.C is virtually a step by way of composition of the offence by the State. The State is the master of litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321 Cr.P.C, the accountability of the concerned person or Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 34 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution, but running the possible risk of a suit of malicious prosecution if the complaint is berefit of any basis."
xxxxx
58. In another case, reported as, "1992 (4) SCC 653 (para 7)", titled as, "Simranjit Singh Mann V/s UoI", the Hon'ble Supreme Court observed as under:
xxxxx "7. .....We are, therefore, satisfied that neither under the provisions of the Code nor under any other statute is a third party stranger are permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial."
xxxxx (Emphasis supplied)
59. Further, in case reported as, "1981 Cr.L.J 219", titled as, "Abdur Karim V/s The State & Ors.", the Hon'ble Kolkata High Court held as under:
xxxxx "In this connection, I may point out that though there is no direct authority on the point, I am of the view that a private party has no locus standi to move against an order of acquittal passed by the learned Judge upon an application being made U/s 321 Cr.P.C to him by the Public Prosecutor in a case which he was conducting. The language of Section 321 of the Code makes it quite clear that the matter is between the Public Prosecutor and the Magistrate or the Judge concerned and a private Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 35 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 party has no right to interfere in such matters. Any Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the Judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. The Public Prosecutor being the "custodian of the public justice" he is the only person who can make an application for withdrawal and, if withdrawal is granted by the court in the interest of administration of justice, no private party can come up against the order of withdrawal."
xxxxx
60. In yet another judgment of the Hon'ble Supreme Court, reported as, "1996 (11) SCC 582", titled as, "All India Institute of Medical Sciences' Employees Union V/s UoI", wherein the Employees' Union of AllMS had filed a Writ Petition before the Hon'ble High Court of Delhi, interalia seeking issuance of a Writ of Mandamus against Dr.S.K Kakkar for allegedly committing cognizable offences punishable U/s 409 IPC, the Hon'ble High Court refused to issue Mandamus. It was laid down that the Association had the remedy of filing complaint case before the learned Magistrate having jurisdiction to take cognizance of the offences, in case the police did not take action on their complaint. The Association having not adopted the procedure prescribed in the Cr.P.C, was not held entitled for Writ of Mandamus.
61. If the locus standi of Aggarwal and Gupta is judged on the anvil of law laid down in the aforesaid judgments, then it would be apparent that Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 36 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 he/they cannot be permitted to participate in these proceedings as a matter of right, particularly, when he/they could have taken recourse to the remedies available to him/them under Cr.P.C in accordance with law. It is a matter of fact that neither "Aggarwal" nor "Gupta" has any personal interest in the litigation. They further do not have any legal capacity to appear before this Court in opposition to this application. Their only interest in this opposition appears to be curiosity, obtaining the glare of public and publicity, which are not valid grounds to have "locusstandi". However, this Court is really thankful to "Aggarwal" for rendering valuable assistance to this Court in taking this Court through the evidence collected by the investigating agency. The said assistance is deemed to have been rendered by him as "Amicus Curiae" and not as a person having "locusstandi" to participate in the proceedings. Therefore, all the applications filed by "Aggarwal" in the matter stand dismissed, including the last application, which was filed as late as on 03.03.2011.
62. The matter does not end here. Now, this court will have to judge the application from the point as to whether the learned Special Prosecutor has exercised his executive function properly and examined the matter in its entirety and has applied his mind in good faith and bonafide manner; as also to examine the grounds taken for withdrawal of prosecution against "Q". Before that, it will have to be seen as to what is the requirement of law in this regard.
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 37 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
63. The controversy in the present application revolves around Section 321 of the Code of Criminal Procedure, 1973 which is being reproduced herein below: 321. Withdrawal from prosecution:
The public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one more of the offences for which he is tried; and upon such withdrawal:
(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) If it is made after a charge has been framed, or when under this code no charge is required he shall be acquitted in respect of such offence or offences;
1. Provided that where such offence:
(i) Was against any law relating to a matter to which the executive power of the Union extends, or
(ii) Was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), of
(iii)Involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) Was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 38 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecution to produce before it the permission granted by the Central Government to withdraw from the prosecution."
64. This particular Section has received scrutiny from the Hon'ble Supreme Court of India in several cases. With a view to deduce the requirement of law for consideration on application U/s 321 Cr.P.C, I wish to refer to the precedents, which are as under.
65. In case reported as, "AIR 1975 SC 389", titled as, "State of Bihar Vs. Ram Naresh Pandey", one Mahesh Desai was accused of committing murder. Murder was stated to be committed in course of a riot which resulted from difference between two rival trade union groups. An application under Section 494 of the Code of Criminal Procedure 1898 (corresponding to Section 321 of the Code of Criminal Procedure 1973) was filed by the Public Prosecutor seeking permission to withdraw from the prosecution. Withdrawal was sought on the ground that on the evidence available it would not be just and expedient to proceed with the prosecution of Mahesh Desai. Trial Court granted permission for withdrawl. In revision, the Session Judge also upheld the order of the Trial Court. In appeal, the Hon'ble High Court reversed the order of the Trial Court on the ground that "there Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 39 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 was exercise of no judicial discretion in the present case." Hon'ble Supreme Court reversed the judgment of the High Court and affirmed the order of the Trial Court granting permission to the prosecution to withdraw from the prosecution of Mahesh Desai. It was inter alia observed as under: xxxxx "The function of the Court, therefore, in granting its consent my well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of s.494 would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court had to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised; or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purpose."
xxxxx
66. Further in case reported as, "(1972) 1 SCC 318", titled as, "M.N. Sankarayarayanan Nayar Vs. P.V.Balakrishanan", accused persons were charged for offences under Section 467, 478, 420 read with Section 109 of Indian Penal Code. An application was moved by the Public Prosecutor Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 40 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 seeking withdrawal from the prosecution of accused persons. Withdrawal was sought on following grounds:
(i) No likelihood of case being successful.
(ii) Interest of public policy.
(iii) Subject matter of case decided in a civil suit.
(iv) Delay in trial.
(v) Securing evidence involves heavy expenses for State.
(vi) Case is of civil nature.
Ld. Sessions Court granted permission to the prosecution, as prayed for. Order of Ld. Session Court was upheld by the Hon'ble High Court as also by Hon'ble Supreme Court. In para 5 of the judgment, Hon'ble Supreme Court observed as under: "5. Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produced sufficient evidence to sustain the charge or that subsequent information before prosecution agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs that public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 41 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 at its behest".
67. In case reported as, "(1976) 4 SCC 250", titled as, "State of Orissa Vs. Chandrika Mohapatra", two appeals were decided by a common judgment. In the first appeal withdrawal was sought on the ground that it would be inexpedient to proceed with the case and that there was meager evidence against the accused persons. Trial Court held that the first ground i.e, inexpedient to prosecute was not a sufficient ground to permit prosecution to withdraw from the prosecution. However, Trial Court agreed with the public prosecutor that there was insufficient evidence against the accused persons and thus granted permission for withdrawal. Hon'ble High Court set aside the order of the Trial Court. Reversing the order of the Hon'ble High Court and affirming the order of the Trial Court, in para 6, Hon'ble Supreme Court observed as under: xxxxx "6. It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well funded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn."
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 42 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 xxxxx (Underlining emphasized)
68. Second case was result of a serious rivalry between two trade unions in an industrial unit. Accused persons were charged for offences under Sections 147, 148, 149, 307, and 324 of Indian Penal Code. Application for withdrawal from prosecution of accused persons was filed by the public prosecutor. Withdrawal was sought on the ground that since the date of occurrence of the unfortunate incident, there was industrial peace and harmony and that withdrawal would help maintain cordiality between rival trade unions. Ld. Sessions Court granted the permission sought for. Hon'ble Supreme Court upheld that order of the Ld.Session Court. In para 10 of the judgment, Hon'ble Supreme Court observed as under: xxxxx "10. We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawl of prosecution under Section 494 of the Criminal Procedure Code. We have pointed out that the paramount consideration in all these cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice. Now, in the present case, the application made by the Public Prosecutor clearly shows that the incident had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking. In these Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 43 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 circumstances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with prosecution, the State should clearly be at liberty to withdraw from the prosecution. We are, therefore, of the view that in the present case the learned Sessions Judge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order of the learned Sessions Judge".
xxxxx
69. In case reported as, "AIR 1980 SC 1510", titled as, "Rajender Kumar Jain Vs. State of Bihar", 25 accused were charged for offences under Section 121A, 120B Indian Penal Code read with Section 4,5, and 6 of the Explosive Act. Application for withdrawal from prosecution was filed.
Withdrawal was sought on the following grounds:
i) Two accused were granted pardon by the Court and were examined as approver under section 306 Sub Section 4 Cr.P.C.
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 44 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
ii) That out of 25 accused persons, two accused were declared proclaimed offenders by the court.
iii) That in public interest and changed circumstances, the Central Government has desired to withdraw from the prosecution of all the accused persons.
Learned Metropolitan Magistrate granted permission for withdrawl. The Hon'ble Supreme Court affirmed the order of the learned Metropolitan Magistrate. It was inter alia observed as under: "13. Thus, from the precedents of this Court; we gather,
1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 45 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 we add, political purposes Sans Tammany Hall enterprise.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawl from the prosecution but the consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the. Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stage in theadministration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321 Criminal Procedure Code. The independence of the Judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to. be done in each case.
We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. In the past we Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 46 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 have often know how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been fund necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm.....
xxxxx
70. In case reported as, "AIR 1983C 194", titled as, "Sheonandan Paswan Vs. State of Bihar", accused persons were charged for offences under Secion 420, 466, 471, 109, 120 B Indian Peanl Code read with Section 5 (2) of Prevention of Corruption Act withdrawl from prosecution was sought on following grounds:
i) Lack of prospect of successful prosecution.
ii) Implication of persons as a result of political and personal vendetta.
iii) Inexpediency of prosecution for reasons of State and Public Policy.
iv) Adverse affect that continuance of prosecution will bring on public interest in the light of changed situation.
Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 47 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 Ld. Special Judge granted the permission sought for by the prosecution. Revision filed by the appellant was dismissed by the Hon'ble High Court. Majority judgment of the Hon'ble Supreme Court upheld the order of learned Special Judge. It was interalia observed as under: xxxxx "58. The next question' for examination is whether the permission was given by the Special Judge in violation of law as laid down by this Court in this regard. We have already referred to the decisions cited by the appellant. The law laid down by this Court in the series of decisions referred to above, inter alia, is (1) that the withdrawl from the prosecution is an executive function of the Public Prosecutor and that the ultimate decision to withdraw from the prosecution is his ; (2) that the Government may suggest to the public prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so ; (3) that not merely inadequacy of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent b y the Court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the court is judicial to the extent that the Court, in according or refusing consent, has to see (i) whether the grounds of withdrawl are valid; and (ii) whether the application is bona fide or is collusive. it may be remembered that the order passed by the Court under Section 321 of the Code, either according or refusing to accord consent, it not appealable. A mere perusal of the impugned order of the Special Judge shows that he has applied his mind to the facts of the case and also applied his mind to the law laid down by this Court in George Fernandes case that has summarised the entire law on the point, and Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 48 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 correctly applied them to the facts of this case. It is therefore not correct to say that the decision of the Special Judge was contrary to the law laid down by this Court.
84..... The only guiding factor which should weigh with the public prosecutor while moving the application for withdrawal and the court according its permission for withdrawal is to see whether the interest of public justice is advanced and the application for withdrawal is not moved oblique motive unconnected with the vindication of cause of public justice.
87. The Court while according the consent to the withdrawal has only to see that the public Prosecutor has acted properly and has not been actuated by oblique or extraneous considerations. it is not the function of the Court to make a fresh appraisal of the evidence and come to its own conclusion on the question whether there is a triable issue to be investigated by the Court.
xxxxx (Underlining emphasized)
71. Earlier decision of the Hon'ble Supreme Court in "Sheonandan's case (supra)" was examined by a Bench of five Judges. Majority judgment upheld the earlier decision. It was inter alia observed as under: xxxxx "45.....The judgment of a Public Prosecutor under Section 321 of the Crimianl P.C 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide.
67.....When an application under Section 321 Cr.P.C is made, it is not Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 49 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the Court when it exercises its limited power of giving consent under Section 321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to rewrite Section 321, Cr.P.C and would be to concede to the Court a power which the scheme of Section 321 does not contemplate. The acquittal or discharge order under Section 321 is ot the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or ground lessness in the case of discharge. All that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court, after considering these facts of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is give. In this case, on a reading of the application for withdrawl, the order of consent and the other attendant circumstances, I have no hesitation to hold that the application for withdrawl and the order giving consent were proper and strictly within the confines of Section 321 Cr.P.C.
70.......The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function implict in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 50 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 illegitimate reasons or purposes."
xxxxx (Underlining emphasized)
72. The gist of entire discussion is that power of Court U/s 321 of Code of Criminal Procedure 1973 is limited. The judgment of Public Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly interfered with unless that Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide. (As held in the decision reported as "1998 (1) AD Delhi 561", titled as, "Govt. of NCT Delhi Vs. Preet Public Secondary School".)
73. Therefore, from the scrutiny of the aforesaid judgments, some of the grounds for withdrawal of criminal case, as recognised by the Hon'ble Supreme Court can be enumerated as follows:
(i) Broader consideration of public peace;
(ii) Larger consideration of public justice;
(iii) Promotion of long lasting security in a locality;
(iv) Halting of a false vexatious prosecution;
(v) Consideration of public policy;
(vi) Purpose of law and order;
(vii) Advancing social harmony;
(viii) Inexpendiency of prosecution for reasons of State;
(ix) Injustice to accused in case prosecution is continued and;
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RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
(x) All other similar and cogent grounds.
(Underlining emphasized)
74. The above list is illustrative and not exhaustive of the grounds on which the application U/s 321 Cr.P.C can be made. It is not intended to limit the considerations on the basis of which the Public Prosecutor can move application under the said provision.
75. In the light of aforesaid legal position, let me examine the grounds on the basis of which withdrawal from the prosecution of "Q" has been sought in the instant case.
76. It may be noted that the FIR in this case was registered on 22.01.1990, whereas the Letter of Intent for supply of Bofors Guns was issued by Government of India in favour of M/s A.B Bofors on 14.03.1986. As such, the case has been pending for more than 21 years now and from the date of alleged contract more than 25 years have elapsed. All the other accused persons, except "Q" have either died or proceedings against them have been "quashed", including the proceedings against M/s A.B Bofors.
77. The Hon'ble High Court of Delhi in judgment dated 04.02.2004 in Crl.Misc. Case No.492/2003, went into the details of the contract, the aspect of conspiracy, the nonjustifiability of the case against public servants as also the utility of Bofors Guns in detail. I do not wish to go into the matter Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 52 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 from the aforesaid angles. However, I wish to quote some important observations of the Hon'ble High Court in the aforesaid judgment, which hold the field and are decisive for the consideration on this application.
78. I would like to quote some important paragraphs of the judgment of Hon'ble High Court of Delhi, dated 04.02.2004, passed in Crl.Misc. Case No.492/2003, which are as under:
xxxxx
6. Result of thirteen long years of investigation by the CBI, a premier Investigating Agency of the Country and three years investigative jounalism during which period large number of officers of CBI hopped to foreign countries every now and then to collect the evidence against public servants but returned empty handed as till date there is no evidence to show that public servants had taken bribe in awarding the contract of guns to M/s. A.B Bofors & Co. either themselves or through Bofors's agents though it has succeeded in tracing the Swiss accounts of "Commission Agents" employed by M/s A.B. Bofors wherein illegal payments received by them from Bofors as commission were deposited.
7. This case is a nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives and friends by the society. He is ostracised, humiliated and convicted without trial. All this puts at grave risk due administration of justice.
8. It is common knowledge that such trials and investigative Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 53 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 journalism and publicity of premature, half baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency has almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial. Unfortunately we are getting used to it.
9. Latest trend of police or CBI OR Investigating Agency encouraging publicity by holding press conference and accompanying journalists and television crew during investigation of a crime needs to be stopped as it creates risk of prejudice to the accused. After hogging publicity and holding the person guilty in the eyes of public, police and CBI to into soporofic slumber and take years in filing the charge sheet and thereafter several years are taken in the trial.
10. It is said and to great extent correctly that through media publicity those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable. Such a right has been emphatically recognized by the European Court of Human Rights.
"Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 54 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 of the courts as the proper forum for the settlement of legal disputes."
11. There is nothing more incumbent upon courts of justice than to preserve their proceedings from being misrepresented than to prejudice the minds of the public against persons concerned before the cause is finally heard. The streams of justice have to be kept clear and pure. The parties have to proceed with safety both to themselves and their character.
12. The fairness of trial is of paramount importance as without such protection there would be trial by media which no civilised society can and should tolerate. The functions of the court in the civilised society cannot be usurped by any other authority. I feel tempted to quote the words of wisdom of Chief justice Lord Taylor as to the impact upon the victim of a press campaign.
"We would lime to stress that, whilst the press are the guardians of the public interest, to pursue a campaign of vilification of someone who has been before the court, in a way which causes hate mail to be sent, which causes his family to be under the need to move house, which causes his children to be shunned by other children in the neighbourhood, is doing no public service. Furthermore, if it is intended to bring pressure to bear on the courts, then it is wholly misguided."
80. Similarly Quattrocchi also held the money in his own account and had been transferring part of monies in different accounts opened by him. To allow the imagination to fly that AB Bofors paid bribe to public servants through Hindujas, Chadha and Quattrocchi Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 55 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 to get the contract and in return they held the amount of alleged "commission" paid by AB Bofors as a trust for more than a year or so is nothing but to deceive oneself. This itself rends the CBI's case from foundation to cornice.
81. Had element of 'bribe' been involved in awarding the contract, the need for involving three agents would not have arisen. Was money of bribe being divided in three parts through three different persons. The question arises as to who succeeded in getting the contract. Hindujas or Quattrocchi or Chadha. In this case all the three. What an inference! CBI was right in not including the offence of taking bribe either by the public servants or Hindujas, Quattrochi having held the monies received by them from Bofors as a trustee for public servants as it was not equipped with any material or evidence nor did it obtain sanction for this offence which is punishable under Section 161 IPC.
84. Having failed to lay hand upon any kind of evidence as to payment of illegal gratification to public servants or holding the monies received by the Agents as trustee, CBI like a drowning person clutched a flimsy straw by introducing the doctrine of "misusing an official position" by way of inducting even an element of "conspiracy" which is unknown to such a penal offence purely on the conjectural and inferential premise that by hastening the decision in favour of Bofors and without considering the offer of a rival viz. "Sofma" that too made subsequent to the letter of intent was issued in favour of Bofors the public persons had misused their official position.
85. On the face of it such a theory is difficult to ram down the throat for the simple reason that when the contenders were short listed and called upon to give the undertaking that they would neither involve Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 56 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 Indian agents nor would pay commission to them and would rather reduce the price by the corresponding amount of commission they would even otherwise have paid to their Agents they requoted their reduced price and Price Negotiating Committee comprising of several members though headed by late S.K. Bhatnagar had no other option than to decide in favour of Bofors whose gun had not only edge over as to its quality and peculiar feature of "shoot and scoot" but at relevant time cheaper in price also. It was after Letter of Intent (LOI) was issued that "Sofma" woke up and like a loosing gambler offer to reduce the price further. Though it was too late yet the price in terms of money was higher as Bofors scaled down its height by offering ten guns free.
86. Let us assume that "Sofma" price was cheaper though reduced when the stage was over, still the Expert Committee's opinion as to the preference of Bofors could not and ought not have been ignored even if it was little costlier. Security of a nation cannot be jeopardised for a few bucks here or there. Life of a soldier is more precious and cannot be bartered like this. By no stretch of imagination such a decision can be termed either as hasty decision as the material exercise took more than a year or tainted decision as element of illegal gratification is not only utterly wanting but has also not been alleged by the CBI and rightly so as not a shred of evidence has surfaced uptil this day.
87. If decision making authorities be in any field are prosecuted like this, no authority, no person would take decision nor would dare to take decision. However, it does not mean that the element of illegal gratification cannot exist in deserving cases. Possibility of procuring award of even of well deserving contract through illegal gratification to Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 57 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 be persons involved for taking decision cannot be ruled out. Offence of giving or taking illegal gratification is independent of all such considerations. But the condition is that like any other offence, offence of "illegal gratification" has to be proved by way of evidence even if it gives rise to "strong suspicion" because of available material in trying a person for this offence. As has been observed above not even a trace of evidence has surfaced inspite of stupendous efforts made by CBI whose officers sojourned to Switzerland and other countries for several years to dig out the material but all in vain.
95. It is clear from the evidence that the user of the armament namely the Army had the ultimate decisive voice and therefore allegation of selecting a less qualitative and more expensive has no basis. It was the technically expert opinion of the Army that the Government should go for Bofors' because of its peculiar feature of "shoot and scoot". None of the public servants had any role in selecting the gun.
96. After 17.2.1986 when the Army indicated its choice, finally through Deputy Chief of Staff who was member of the Technical Committee and expressed its stand that even if Bofors gun is costlier, that is the gun which the Army wants, it was obvious that if the army changed its mind in favour of Bofors, it did not do so because of intervention of public servants or Bofors or present petitioners or Quattrochi or Win Chadha. It was purely an opinion by a body of experts.
97. The element of illegal gratification as envisaged under Sections 161 is according to the prosecution case itself utterly wanting inasmuch Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 58 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 as that there is no evidence that the official report of the Army in favour of Bofors was managed, manipulated or procured through corrupt or illegal means. Since the best judge of the weapons to be used by the Government is the Army or its Committee or Technical Experts the Government had no business or role to overrule that decision. However, the Price Negotiating Committee had a limited role of negotiating the price acting on the premise of the report of the Army which gave its report on 17th February, 1986 to the effect that Swedish Bofors has a clear edge over the French Sofma. The report was submitted by the Deputy Chief of the Army Staff which was approved finally by the Chief of the Army Staff.
98. Unless there is a corrupt motive imputed to the choice in favour of one Gun or the other even if it is costlier price wise but quality wise equally good though Bofors had an edge over Sofma because of its peculiar feature of "shoot and scoot" the offnece under section 161 IPC does not attract and nowhere the prosecution has levelled these allegations nor has produced any material in support of corrupt motives. Merely because the Sofma's offer of reducing the price came immediately after the letter of intent had already been issued to Bofors cannot lead to any inference that the decision in favour of the Bofors was with ulterior motives or by accepting bribe etc.
99. It is not the case of CBI that Bofors or Hindujas or Quattrochi or Chadha had accepted the bribe money on behalf of the public servants under the garb of "commission" and that the bribe money allegedly paid by the Bofors was retained by Hindujas or others as custodians. Until and unless the money in the account of Hindujas and others is related to the bribe money to the public servants, charge for Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 59 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 abetting in receiving the bribe punishable under section 161 read with section 165A IPC cannot stand or stick.
107. The only argument of the CBI is that presumption should be drawn that the haste with which the contract was awarded was a result of the conspiracy between Hindujas, Quattrocchi, Bofors and the public servants to award contract in favour of Bofors prior to the visit of Rajiv Gandhi to Switzerland. The prosecution has not brought anything on record as to what different role was played by the members of the Negotiating Committee than the role played by Mr. Bhatnagar. Thus, the element of dishonest intention is utterly wanting.
110. ......Even otherwise in commercial contracts of Defence matters political and diplomatic considerations play a part, other thing being equally important. France was also a supplier of arms to Pakistan. In case of need the supply of Sofma could have squeezed.
111. So far as the allegations that Sh. Rajiv Gandhi requested the Swedish Prime Minister to desist from holding an enquiry in April, 1997 it is of no significance as it was done on account of a decision taken by the Cabinet Committee of Political Affairs after deliberating the issue that since the Joint Parliamentary Committee was going to enquire into the matter it would be not proper for officers of the Ministry to meet the Bofors's Officers. As regards the haste in issuing the letter of intent though there was no cut off date for the price negotiating committee but still Mr. Bhatnagar informed Mr. Arun Singh about the offer of Sofma after the issuance of letter of intent, Mr. Arun Singh felt that issuance of letter of intent should not come in the way of Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 60 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 consideration of offer of Sofma and it was on his advice that Bofors was asked to revise its offer and once the Bofors agreed to give 10 guns free its price got reduced from that of Sofma. It was only after 12 days ie. On 24th March, 1986 that the contract was signed with M/s AB Bofors. So far a General Sunderji' plea for cancellation of the contract is concerned it was on the moral ground and not from commercial or technical aspects.
123. The contract was awarded after series of meetings detailed discussions on every aspect including technical, financial and contractual between the manufacturers and the working groups constituted by the price negotiating committee. But act of misrepresentation about commission agents and proportionate reduction in price amounts to not only deception but fraudulently or dishonestly inducing the Government of India to do an act that caused wrongful loss to the tune of Rs.100 Crores or so as the agreed commission amounted to the said amount though by the time news broke Rupees 64 crores had been paid and such an act does come within the mischief of Section 120B and Section 420 ICP qua the petitioners and for that purpose Martin Ardbo and Quattrocchi. xxxxx (Emphasis supplied)
79. Further, in judgment dated 31.05.2005 in Crl. Revision No. 273/2004, the Hon'ble High Court considered the effect of the copies of the documents received by CBI pursuant to the execution of Letter Rogatories, issued by this court in this matter, which are as under:
xxxxx Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 61 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 33 . The disputed photo copies do not qualify as certified copies for the following reasons :
(a) That the Ministry of Justice does not claim to have original in its possession.
(b) The officer who has initialed them neither had nor even claims the custody of the originals.
(c) There is no certificate written at the foot of the copy that it is true copy of any other document.
(d) There is no date and there is no name and official title of the officer.
(e) There is, however, a seal of the Ministry of Justice of which I cannot take judicial notice;
39. The words "6(9)/84/D(GS.IV) av 860324 and 6(9)/84/D (GS.IV) av 860324" are in the handwriting of somebody. Unless the person who wrote those words is identified and it is proved that his position is such that his writing those words proves the truth of the contents, the documents are utterly useless. Based on this dubious material, to allow a prosecution to go on for many more years, in respect of a transaction of more than 20 years vintage, is sheer persecution, waste of public time and money. I cannot foresee any chance of the successful termination of such a useless prosecution. It was for this reason, I thought of giving the CBI an opportunity to bring the case back on rails. As already noted, the CBI has spurned the offer.
48. Evidence collected during the investigation must be capable of being converted into evidence as defined in the Evidence Act. No material exists on the record which will bring about this result. The word 'evidence' in Section 166A is used in the general sense of Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 62 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 something which may have some probative value if capable of being converted into evidence as defined in the Evidence Act. It is fallacious to treat it as evidence for the purpose of the eventful trial.
49. Section 166A is available only where some documents are collected from abroad during the course of the pending investigation. The investigation was over when the second chargesheet was filed on 90.10.2000. These documents were received sometime after the 16.08.2001.
56. Let me again summarise. If these documents have come from the Department of Justice, these documents will be private documents which form the record of public officers of a foreign country in which event they are 'public documents' as defined in Section 74(1) (iii) of the Indian Evidence Act. They can be proved only under Section 78 clause (6) of the Indian Evidence Act. It is not denied that no such authentication exists in respect of these documents. Under the circumstances, these documents can never be proved.
57. If I assume that these documents are not 'public documents' at all as defined in the Evidence Act but private 'documents' then they have to be proved like any other document. Not only their execution has to be proved but the truth of the contents of the documents has to be proved. No such material exists to prove these as 'private documents'.
61. The CBI failed to produce the original documents. The Bofors Company thereafter on 09.03.2004 moved another application for direction that the prosecution must produce the original documents for inspection to avoid any further delay in the trial. Another similar Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 63 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 application was filed on 25.03.2004. During pendency of this application, the learned Magistrate on 26.03.2004 proceeded to frame charge against the Bofors Company for offence punishable under section 465 IPC since the learned Magistrate was bound to do so by the directions in order dated 04.02.2004 of Kapoor, J. The Bofors Company moved yet another application on 07.06.2004 for production of the original documents for inspection and for preparation of its defence before the trial began, but no original documents were produced. However, on 14.10.2004, the learned Additional Solicitor General appearing on behalf of the prosecution, made a statement before the learned Magistrate to the effect "that the original documents sought to be perused by the Bofors Company are not available with the CBI." This statement was incorporated in the order dated 14.10.2004 of the learned Magistrate.
62. Faced with the aforesaid situation, the learned Magistrate directed the prosecution agency to ascertain whether the original documents were/are lying with the Swedish Authorities which was sought to be kept secured by an earlier order. The learned Additional Solicitor General submitted a fax communication dated 24.11.2004 from the Ministry of Justice, Sweden, which reads as under :
"I hereby certify that all original documents received from the prosecutor's office were forwarded to the Embassy of India in Stockholm. These documents were subsequently stamped and signed at the request of Indian Authorities."
63. An additional list of witnesses, particularly PW94, PW95, PW96 and PW97 with the note "Statements of aforesaid witnesses Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 64 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 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 profed 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 preceding paragraphs of this judgment, the conclusion is but obvious.
66. Before parting, I must express my disapproval at the Investigation that went on for 14 years and I was given to understand that it cost the Exchequer nearly Rupees 250 crores. During the investigation a huge bubble was created with the aid of the media, which, however, when tested by court, burst leaving behind a disastrous trail of suffering . The accused suffered emotionally. Careers both political and professional were ruined besides causing huge economic loss. Many an accused lived and died with a stigma. It is hoped that Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 65 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 this elite Investigating Agency will be more responsible in future ........... xxxxx (Emphasis supplied)
80. From the joint reading of the aforesaid two judgments, which are binding precedent upon this court, with regard to the facts as also the law applicable in the matter, would reveal that despite spending through its nose for about 21 years, the CBI has not been able to put forward legally sustainable evidence with regard to conspiracy in the matter. Further in case of "Q", as against the alleged kickback of Rs.64.00 Crores, the CBI by the year 2005 had already spent around Rs.250.00 Crores on the investigation, which is sheer wastage of public money.
81. While we are busy in discussing the Sensex and scams, India's poorest are barely surviving, thanks to an appalling governance deficit. In some areas of our country, we have no electricity, no roads, no proper water facilities; 50% of India lives on less than US $ 2 a day; 100 million childen go to bed hungry every night; 62% live without electricity and in some of the areas, the villages are another heart of India's darkness. At various other places, there are no shops, no dispensaries and merely there is an apology of an Anganwadi; a school so unsafe that the children study on its open verandah. There are little scrubs of farmlands where "tuar and chana"
plants precariously survive. The village lives in darkness; its children are Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 66 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 taught to play in the dark. Food is cooked during the day, eaten by the light of a kerosene lamp, carefully set at its lowest flame, at night. To save kerosene, 10 minutes is all they get to finish dinner. The nearest medical facility is 30 KM away. Pregnant women prefer to give birth in their huts rather than travel two hours on the bumpy dirt track to the nearest public health centre. They know the journey can lead to a hamorrhage and death, like it happened to those women who insisted on travelling to the nearest health centre. This situation has been the same in some parts of the country since 1947. Above are the views expressed by an author in respect of "Rehatyakheda village" in Amravati District, Maharashtra. I presume, the conditions in various other parts in India are somewhat similar or even worse. It is common knowledge that farmers in some places in India are committing suicides because they do not find it easy to have one meal a day, what to talk of availability of other civil amenities which are required for the existence of human being in a dignified manner. The very question which stares us at our faces is whether it is justified for the Government of India (CBI) to continue to spend on the extradition of "Q", which may or may not ultimately happen during his lifetime. Can we allow this hard earned money of "Aam Aadmi"
of India to be spent on these type of proceedings which are not going to do any good to them, after almost 25 years of the so called "Arm Deal". The answer would be a big "NO". From the contents of the application, I find that the learned Prosecutor has applied his independent mind on this aspect and has chosen to treat it as one of the grounds for withdrawal of prosecution Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 67 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 against "Q" and the same is clearly in larger public interest.
82. The other ground taken is that two earlier attempts of CBI in extraditing "Q", one in Malaysia and other in Argentina have failed. I have gone through the judgments passed by the Malaysian Courts as also by the Argentian Courts.
ORDERS OF MALAYSIAN COURTS The order of the Kualalampur Sessions Court, Malaysia inter alia observed as under :
" In the final analysis it is my decision that a proper description of the offences committed by the subject have to be tendered in Court. The failure to do so amounts to noncompliance of the Law. I will go as far as to say under such circumstances the tendering of charges would have been preferable. Further, it is my observation that the burden lies with the requesting countries to produce this description of the offences as they are in the best position to know the exact offences committed if any by the subject.
I am directing that the subject be discharged of this extradition proceeding upon which his bail and all condition attached to the bail be also discharged.
The matter then went up the Court of Datuk Augustine Paul, Judge, High Court, Kuala Lumpur who delivered his judgment on 13 th December, 2002 and upheld the lower court's Judgment. It is relevant to note that the Ld. Judge examined the evidence produced by the CBI Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 68 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 to find out if an offence of cheating was prima facie made out. The following is quoted from the judgment of Datur Augustine Paul-- xxxxx I will first deal with the offence of cheating. The thrust of this offence is the receipt of money by the Respondent following the appointment of AE Services Limited of the United Kingdom at this behest as the consultants of Bofors since the appointment of agents was prohibited. However, it must be observed that paragraph 13 of the "chargesheet"
of the Indian authorities refer to the prohibition as"the present Government did not approve of the appointment of Indian agent acting for foreign supplies."
The prohibition is therefore only of the appointment of Indian agents. As AE Services Limited is United Kingdombases their appointment as consultant to Bofors does not infringe the prohibition. In any event, clause 33.1 of the agreement entered into between the Government of India and Bofors some two weeks after the imposition of the prohibition has the effect of negating it. It reads as follows : "All the provisions of this Contract including the Annexures, Enclosures and Clauses shall be harmoniously construed. The Parties have executed this Contract on the basis that the provision in the Clauses and Annexures both inclusive represent the entire Contract. This Contract sets forth the entire undertaking of the Parties in respect of transactions contemplated hereby and supersedes all prior agreements, arrangements, representations or undertaking relating to the subject matter thereof."
If the prohibition has been superseded by the agreement it ceases to be Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 69 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 one. It cannot therefore be the foundation for the offence of cheating.
"The two issues that I have mentioned, having been addressed by learned counsel for the Respondent, did not find their way into the reply by the prosecution. When I invited the prosecution and the two counsel to submit on them there was no positive response worthy of consideration. These facts cannot therefore be termed or treated as particulars for the offence of cheating in lieu of a charge therefore. In the circumstances it is not possible to discern the particulars for the offence of cheating from the documents made available."
The Malaysian High Court held as under:
"Without the charges or , in the alternative, proper particulars of the offences the inquiry before the Sessions Court just could not have started. In the upshot it is my view that failure to supply the Court and the Respondent with the charges is fatal. The ruling made by the learned Sessions Court Judge on the preliminary objection raised by the Respondent is therefore correct in law. Accordingly, I confirm the order of discharge made by him and dismiss this application..."
st Finally, the judgment of the Federal Court of Malaysia on 31 March, 2004. The concluding paragraph No.97 is quoted :
97. "All things considered, we can only conclude that we are in agreement with the Court of Appeal on its findings. We would, therefore, hold that no appear lies to this court. As such, we decline to make any ruling on the subsidiary issues raised in the arguments.
Accordingly, we dismiss the appeal with costs."
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83. The Court of First Instance of Eldorado (Argentina) in its judgment dated 12.09.2007 held the extradition proceedings to be for political reasons. The learned Judge specifically stated that the investigation in the matter was conducted after the political party of the former Defence Minister of India and Prime Minister Shri Rajiv Gandhi could not form a Government in the general elections and the charges were recorded hastily after the new Government took office and used the "Bofors" case as a weapon by the political parties during the general elections of the country.
84. The learned Judge quoted with approval an earlier precendent in the matter to brand the extradition of "Q" sought for by the Government of India, as political persecution. In the words of Judge:
"Political persecution implies to assert, tacitly, that the requesting State would be using maliciously the extradition figure to obtain an illegal banishment, assertion which cannot be hasted and without the court fully believing of the existence of a concealed intention".
85. It was very vehemently argued by the learned Additional Solicitor General of India that the Red Corner Notice was withdrawn against "Q", after the approval of Attorney General of India, as it was impinging very heavily upon the exchequer. A joint reading of the judgments of both the countries would reveal that on facts of case, both the countries expressed that offence of conspiracy and cheating was not made out against "Q", as the Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 71 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011 terms of the agreement between the Government of India and M/s A.B Bofors did not prohibit the induction of foreign agents in the contract and in any case, if there was a violation of any term of contract, that only leads to civil consequences and not penal consequences.
86. The learned Additional Solicitor General emphasized that in future no other country would allow the extradition application of Government of India because of aforesaid two precedents of two different countries, who at the time of considering extradition applications considered the merits of the case as well. He has further submitted that if the proceedings are allowed to continue on an unending note, then that would only amount to continuation of charge on the exchequer with no hope of any fruitful result being produced in the matter. On this account also, I find that the learned Special Prosecutor has applied his independent mind and considered the matter on the aforesaid lines.
87. Therefore, the decision of the learned Special Prosecutor of CBI, seeking withdrawal of prosecution against "Q" on the face of it appears to be bonafide and in the larger public interest. Accordingly, the learned Special Prosecutor of CBI is allowed to withdraw prosecution against "Q". Consequently, "Q" stands discharged from this case. Order on Application U/s 321 Cr.P.C filed by CBI ("Application Allowed") Page 72 of 73 RC No.1(A)/90 ("CBI V/s Ottavio Quattrocchi") DOD: 04.03.2011
88. File be consigned to Record Room after complying with the necessary formalities and after expiry of the limitation period of challenging this order by any of the parties, the record be sent back to the Hon'ble Supreme Court of India.
Announced in the open court (Vinod Yadav)
on 04.03.2011 Chief Metropolitan Magistrate:
Delhi
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