CBI's closure report in Bofors case: Accepted by Tis Hazari Courts

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
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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
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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
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(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.
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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
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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
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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
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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
payment
Gross   amount   of
Invoice (in SEK)
Commission   @   0.96%   (in
SEKO)
1014271   dated   29.7.86   paid   on
8.8.86
67,166,028 644,793.87
2010043   dated   20.2.87   paid   on
2.3.87
66,657,160 639,908.75
102008 dated 19.2.98 paid on 9.3.87 13,981,805.92 134,225.34
2010136   dated   16.3.87   paid   on
7.4.87
71,468,308 686,095.76
1010496   dated   23.3.87   paid   on
2.4.87   and   1010488   dated   20.3.87
paid on 3.4.87
27,195,139
     352,380
264,456.18
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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
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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
April, 1982
Trials were conducted for guns whose tenders had been received
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,
1982
The   General   Staff   Evaluation   Report   of   1982   shortlisted   the
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
28.08.84
Negotiations were held between the short listed companies and the
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
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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
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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
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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
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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.
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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
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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:
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(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”.
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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
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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, 4
th
   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, 6
th
 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”.  
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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,
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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)
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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
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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
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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,
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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:
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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)
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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
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(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)
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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
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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
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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
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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.
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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
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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
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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
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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
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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.”
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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
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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.
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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,
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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
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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.
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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
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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
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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
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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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(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
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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
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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
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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
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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
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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
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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
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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 17
th
 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
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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
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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  24
th
  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
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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
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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
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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
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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
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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
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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
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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
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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
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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...”
    Finally, the judgment of the Federal Court of Malaysia on 31
st
       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
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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   73RC 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
Order on Application U/s 321 Cr.P.C filed by CBI (“Application Allowed”)                       Page  73   of   73