JANTA DAL ETC. ETC. v. H.S. CHOWDHARY AND ORS. ETC. ETC.

Citation: [1992] SUPP. 1 S.C.R. 226; 1992 INSC 226

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN , K. JAYACHANDRA REDDY

Judgment date: 1992-08-28

Case summary

1992 INSC 226. Supreme Court of India judgment dated 1992-08-28. JANTA DAL ETC. ETC. v. H.S. CHOWDHARY AND ORS. ETC. ETC. Read the judgment and case details...

Judgment text

228 SUPREME COURT REPORTS [1992] SUPP. 1 S. C. R. JANTA DAL ETC. ETC. v. H. S. CHOWDHARY AND ORS. ETC. ETC. AUGUST 28, 1992 [S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ. ) Code of Criminal Procedure, 1973: Sections 397, 401, 482--Revisional and inherent powers of High Court-Scope and ambit of-Single Judge of High Court-Assumption of suo motu jurisdiction to quash FIR in Bofors case-Legality of Constitution of India, 1950: Article 32-l'IL-Definition, concept and purpose of-''Public interest", "litigation''-Construction-f'arameters for entertaining PIL-Whether possible to lay down-Locus standi of a pany-lmpor-tance of-Locus standi in private action and PIL-Difference of-Petitions.

in the garo of PIL by persons interested-Maintainability of 1 11 Words and Phrases: "Public interest'~ "litigation ~ Public interest litigation-Meaning of Public Interest Litigation-Definition, concept and purpose of- Parameters for entertaining PIL-Whether possible to lay down-f'etitions in the gariJ of PIL by persons interested-Maintainability of Locus Standi-Significance in PIL and private action-f'etitions in the garo of PIL by persons interested-Maintainability of Swedish Radio on 16. 4. 1987 broadcasted that to win the contact awarded on 24. 3. 1986 by the Government of India, Bofors of Sweden paid bribes to senior Indian Politicians and Defence officials. On 17. 4. 1987 some leading newspapers of India gave prominent coverage to the broadcast. On 17. 4. 1987 the Swedish Radio claimed in its broadcast that it bad documentary proof of the pay offs in four Instalments to Indian accounts in Swiss Banks and It also checked with the bankers of Bofors.

Bofors denied paying any kickbacks to Indian politicians or omclals in its statement Issued on 17. 4:1987. JANTA DAL v. HS. CHOWDHARY 227 On 17. 4. 1987 the Government of India also issued a statement denying the allegations contained in the news items based on the Swedish Radio and Television broadcast, as false, baseless and mischievous; The Minister of Defence on 2(). 4. 1987 on the subject stated in the Lok Sabha suo motu that the Bofors did not employ any Representative Agent in India for the project. However, they used the services of a local firm only for administrative services, e. g. hotel bookings, transportation, for· warding of letters, telexes etc. The Minister further stated that if any evidence was produced involving violation of the law, thorough investiga· lion would be taken and guilty would be punished. On 31. 4. 1987 he also made similar statement in the Rajya Sabha. On 20. 4.

1987, the than Prime Minister intervening in the debates in the Lok Sabha assured the Members that if any evidence relating to the involvement of middlemen, of pay-offs, bribes or commissions were shown, then strong action would be taken and nobody would be allowed to go free. Several Members of the Parliament demanded a probe with full details by a Parliamentary Committee. On 4. 6. 1987, the Swedish Embassy in India, forwarded a copy of a part of the Report of the Swedish National Audit Bureau's (SNAB) dated 1. 6. 1987. The rest of the Report was withheld by the Swedish Government on the bank secrecy requirements. The Report did not disclose the names of the recipients of kickbacks. The tb~n Prime Minister discussed the report with the leaders of the opposition parties on 11. 6. 1987. When the Government of India requested the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, to set up on their own Join Parliamentary Committee (JPC), they declined.

The then Prime Minister in his meeting with the leader of the opposition in Parliament on 17. 6. 1987 Indicated that in the Monsoon Session of Lok Sabha. The Government would move for the motion for the appointment ofaJPC to probe Into the Bofors deal. On29. 7. 1987, the motion was moved by the then Defence Minister. While moving the motion on 3. 8. 1987, be stated that from the report of SNAB two fai ·' emerged, viz (I) that sizable payments were made In 1986; and (II) that the particulars of ! he recipients of the amounts paid by Bofors were not disclosed. In justifica. tion of the constitution of JPC, the Defence Minister stated that the Committee was "' set up to get at the truth. The JPC was constituted consisting of 20 elected members from Lok Sabha and 10 from Rajya Sabha. Its Chairman was appointed on 28. 8. 1988. In the JPC five members were elected to fill the five vacancies due to death, resignation and expiry of membership. On 22. 4. 1988, the JPC submitted its report.

According to It there was no evidence to establish that the Bofors payment involved a violation of any Indian Law and that there was no evidence of any other payment by Bofors for winning the Indian Contract. Even after the JPC Report. allegations of malpractices in the Bofors deal were relently agitated with the change of Government, the CBI registered a F. l. R. on 22. 1. 1990 and a case under section 120·B read with sections 5(2), 5(l)(d) and 5(2)/5(1)(c) of the Prevention of Corruption Act, 1947 read with sections 409, 420, 468 and 471 of ! PC against 14 accused. I) Out of the 14 accused 3 were named. The rest 11 accused were stated in general.

The CBI commenced its investigation against the 14 accused for entering into a criminal conspiracy, for obtaining illegal gratification in the form of money from Bofors through the agent/firms/companies/per· S\ffis; as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants for causing pecuniary advantage to themselves, Bofors, the agents and others in awarding contracts to Bofors and for committing the offences of criminal breach of trnst, cheating, forgery and using of forged documents in such transaction. The CBI filed au application before the Special Judge requesting to issue a letter rogatory/request to Switzerland urgently for getting the necessary assistance so that the Investigation could be conducted in Switzerland lest important and relevant evidence would remain uncollected and the cause of justice would be frustrated. The Special Judge allowed the application.

The Cantonal Court of Geneva returned the letter of rogatory for compliance of certain procedural formalities. Respondent No. 1 filed a criminal miscellaneous case before the JANTA DAL v. H. S. CHOWDHARY 229 Special Court under Article 51-A of the Constitution of India, praying not to issue any rogatory, letter on the formal request of CBI, and to permit him to join the inquiry in the capacity of public interest litigant. The Special Judge dismissed the petition of the respondent No. 1 and issued Note of Compliance and Amended Letter of rogatory, against which the respondent No. I filed a criminal revision before the High Court, under Sections 397/482 of the Code of Criminal Procedure, 1973. During the hearing of criminal revision of the respondent No. 1, several applications seeking linpleadment, intervention· were filed by various political parties and others.

As the High Court did not accept the prayers of the lnterveners, a special leave petition (Criminal) was filed before this Court; This Court directed the High Court to dispose of the pending criminal revision by bearing the parties, including the interveners. The High Court dismissed the Criminal revision and intervention applications holding that the respondent No. 1 had no locus standi to file the revision and the revision was not maintainable; that the appellants had no right to be impleaded; that the Special Judge should not have taken cognizance of the FIR filed by the CBI as it was in violation of the provisions of Section 154; that the Special Jndge bad no jurisdiction ta entertain request for issuance of letter of rogatory; that the CBI was not a legally constituted force which is to be entrusted with the investigation and that the investigation on the face of it was biased and inRuenced by outside agencies.

All these present criminal appeals and writ application were filed before this Court against the High Court's judgment. 'flte 11ppellants contended that the respondent No. 1 did not have any locus standi to initiate PIL; that the respondent No. 1 did not satisfy the definition of PIL; that be was acting as a proxy under the mask of public interest litigant for the benefit of all the real accused; the Union of India contended that very litigation itself was not within the deRnltion of PIL and that respondent No. 1 had no locus standi to approach the Court by Oiling the petition under Sections 397 and 482 of the Code of Criminal Procedure. The respondent No. 1 submitted that as in the present case he had espoused only real public interest and therefore his right of locus standi could not be questioned that the very registration of the case smacked of pblitical veodeotta. Disposing of the cases, this Court, HELD : 1. 01.

Under Section 397, the High Court possesses the general power of superintendence over the action of Courts subordinate to it which the discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. lo exercise of the discretionary powers conferred on the High Court under the provisions of this Section, the High Court can, at any stage, on Its own motion, If It so desires and certainly when illegalities and irregularities resulting lo injustice are brought to its notice, call for the records and exami111e them. (286 F-G] 1. 02. By virtue of the po•ver under Section 401, the High Court can examine the proceedings of lnforlor Courts If the necessity for doing so is brought to its notice In any m,anoer, namely, (1) when the records have been called for by Itself, or (2) when the proceedings otherwise comes to its knowledge. [287·B) 1. 03.

Tbe object oftbe revlsiooaljurlsdlction under Section 401 ls to confer power 1! pon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in ord1ir to correct miscarriage of justice arising from misconception of law, irnogularity of procedure, neglect of proper precaution or apparent harshmess of treatment which has resulted, on the one hand, or on the other hand In some underserved hardship to in· dlviduals. The controlling pow1er of the High Court is discretionary and It must be exercised in the Inter-est of justice with regard to all facts and circumstances of tlacb partlcubir case, anxious attention being given to the said facts and circumstances. " hlch very greatly from case to case. [287 C·D] 1. 04. Section 482 deals wiith the lnberent powers of the High Conrt.

The rule of inhtlr-ent powers ha• its source In tbe maxim "Quadolex aliquid alicui concedit, concedere videtuT id sine quo ipsa, ess uon potest" which mea11s that whim the law gives unytbin& to anyone, it gives also all those things withontwhich ti1e thing itself could not exist. [287-E] JANTADAL v. H. S. CHOWDHARY 231 1. 05.. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 432· or the Code are very wide and the very plenitude of the power requires great caution in Its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. [287 F·G] . 1. 116.

Thus, the inherent power under Section 482 can be exercised by the Hlgh Court (1) to give elJect to any order passed under the Code; or (2) to prevent abuse or the process or any Court; or (3) otherwise to secure the ends or justice. [288-E] 1. 07. This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court or a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence bas not been collected and produced before the Court and the issues involved whether factual or legal are or great magnitude and cannot be seen in their true perspective without sufficient material. or course, no bard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jnrisdiction of quashing the proceedings at any stage. [288-H, 299-A] Emperor v.

Nazir Ahmad, AIR 1945 PC 18, 22; Lala Jai Ram Das v. Emperor, 1945 (47) Born. L. R. 634 (PC); Dr. Raghubir Sharan v. The State of Bihar, (1964] 2 SCR 336; Ta/ab Hazi Hussain v. Madhukar Pushottam Mondkar and Another, (1958) SCR 1226; Pampapathy v. State of Mysore, (1966] Supp SCR 477; Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47- [1978) 1 SCR 749; Khushi Ram v. Hashim and Ors. , AIR 1959 SC 542; State of Orissa v. Ram Chander Aggarwala, AIR 1979 SC 87· [1979) 1 SCR 1114 and State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. , [1990] 3 Supp. SCR 256, relied on, Rattan Singh v. State of Maharashtra, 1977 Cri. L,J. 673; Mohammad v. State of Kera/a, 1982 Crl. L. J. 1120 and Range Forest Officer, Sirsa and Others v. Anand Venkataraman Hegde, 1978 Crl. L. J. 1374, distinguished. Connelly v. D. P. P. , 1964 A. C. 1254; D. P. P. v. Humphrys, 1977 A. C. I; Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18; R. V. Metropolitan Police Commissioner, (1968) 1 All E. R.

763 at 769; Jehan Singh v. Delhi Administra· tion, (1974] 3 SCR 794; Kurukshetra University and Another v. State of Haryana, AIR 1977 SC 2229 = (1977) 4 SCC 451; State of Bihar and Another v. J. A. C. Saldanha and Others, [1980) 1 SCC 554; Eastern Spinning Mills Virendra Kumar Sharda and another v. Shri Rajiv Poddar and Others, AIR 1985 SC 1668; State of Haryana v. Ch. Bhajan Lal, (1990) 3 Supp. SCR 259; Jasbhai Motibhai Desia v. Roshan Kumar, (1976) 3 SCR 58; Amar Nath v. State of Haryana, (1977) 4 SCC 137; State of Bihar v. V. P. Shanna, (1991) 1 Scale 539; Maneckji v. Union of India, (1980) 86 Crl. W. 258; Ram Lal Yadav v. State of U. P. , (1989) 95 Crl. LJ. 1013 (thus decision over-ruled Prashant Gaur v. State of U. P. , 1988 All. W. C. 828 and Puttan Singh v. State of U. P. , 1987 All W 599, referred to. 1. 08.

The High Court bas taken an extreme view that 'the Court can take judicial notice of any illegality being committed by any Court, with a view to prevent the injury being caused to the known or unknown aggrieved party', even when the investigation is at its threshold. The very sentence is indicative of the fact that the learned Judge in order to protect any possible injury that might be caused either during the investigation or on the culmination of the criminal proceedings to the known or unknown aggrieved party bas determined to take suo motu cognizance and proceed with the matter, by virtually stepping ·into the shoes of the accused partles both present and prospective. [286 B·CJ 1. 09. It shocks judicial conscience that Mr. Justice M. K. Chawla before whom no aggrieved or affected Jlllrty had come challenging the FIR, bas taken suo motu action and recorded such a categorical assertion that 'no offence' thereby meaning much/ess a cognizable offence is made out in the FIR. [295-F] 1.

10. Once an Investigation by the police Is ordered by a Magistrate under Section 156(3) of Code, the Magistrate cannot place any lhnitations or direct the officer conducting it as to how to conduct the investigation. Mr. Justice M. K. Chawla, bas overstepped bis jurisdiction and made the statement which is unwarranted and uncalled for. [295-H) Ninnaljit Singh Hoon v. State of West Bengal, (1973) 3 SCC 753, relied on. JANTA DAL v. H. S. CHOWDHARY 233 1. 11. The Court agreeing with the first part of the order dated 19. 12. 1990 of the High Court, quashes the later part of the impugaed order taking suo motu cognizance under Section 397, 401 read with Section 482 of the Code issuing show-cause notice to the CBI and the State. 2. 01. Basically the meaning of the words 'Public Interest' is defined as the common well being also public welfare. Oxford English Dictionary, 2nd Edition, Vol. XII, Shrouds Judicial Dictionary, Vol. 4 IV Edition; Black's law Dictionary, Sixth Edition, referred to.

[258-D] 2. 02. The expression 'litigation' means a legal action including all proceedings therein, initiated in ~ Court of Law with the purpose of enforcing a right or seeking a remedy. [259-B] 2. 03. 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. [259·C] 2. 04. The concept of PIL which has been and is being fostered by judicial activism has become an increaingly important one setting up valuable and respectable records, especially in the arena of constitutional and legal treatment for 'the unrepresented and under-represented'. (260-B] 2. 05.

The definition of PIL emerged from historical context in which the commonality of the various forms of legal representation involving the basic and fundamental rights of a significant segment of the public demanding vindication of its rights has been recogaised in various parts of the world. (260-FJ P. N. Bhagwati: "Social Action Litigation: The Indian Experience • vide 'Role of the Judiciary in Plural Societies"Published in 1987, referred to. Mumbai Kamgar Sabha v. Abdulbhai, (1976] 3 SCC 832; Fenilizer Corporation Kangar Union v. Union of India, [1981] 2 SCR 52 =AIR 1981 SC 344 and S. P. Gupta v. Union of India, AIR 1982 SC 149, relied on. 2. 06. Though it is imperative to lay down clear gaidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation - particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved.

There is also one view that such adumberation is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances. [262·H, 263-A) 2. 07. The requirement of locus standi of a party to a litigation is mandatory; because the legal capacity the party to any litigation whether In private public action in relation to any specific remedy sought for bas •• to be primarily ascertained at the threshold. [263·B) 2. 08. The traditional syntax of Ia--: in regard to locus standi for a specific judicial redress, sought by an individual person or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories oflaw.

In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation Is essentially that of vindicating private rights, proceed· logs being brought by the persons in whom the right personally inbers or their legally constituted representatives who are thus obviously most competent to commence the litigation. [263 D·H) 2. 09.

The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sulTcient interest in Instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interpolar; since the dominant object of PIL is to ensure observaoce of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient Interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen conld bring such an action in respect of a pnblic dellct. [263 F-Hl JANTADAL v. H. S. CHOWDHARY 235 2. 10.

Though in our country, it is recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liberalised the rule of standing and thereby permitted a . 1Dember of the public, having no personal gain or oblique motive to approach the court for enforcement of the constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus stand; of an in· dividual seeking judicial remedy and various activities in the field of PIL. [265 F·G] 2. 11.

In defining the rule of locus standi no 'rigid litmus test' can be applied since the broad contours of PIL are still developing a pace seem· ingly with divergent views on several aspects of the concept of this newly developed law and discovered jurisdiction leading to a rapid transforma· lion of judicial activism with a far reaching change both in the nature and form of the judicial process. [265-H) 2. 12.

This summit Court has widely enlarged the scope of PIL by relaxing and liberalising the rule of standing by treating letters or petitions sent by any person or association complaining violation of any fundamen· tal rights and also entertaining Writ petitions filed under Article 32 of the Constitution by public spirited and policy oriented activist persons or journalists or of any organisation rejecting serious challenges made with regard to the maintainability of such petitions rendered many vlrtuoslc pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities within the territory of India or under the control of the Government of India for the betterment of the public at large in many fields in conformity with constituilonal prescriptions of what constitutes the good life in a socially just democracy. People's Union for Democratic Rights and others v. Union of India and Others, [1982) 3 SCC 235; Bandhua Mukti Morcha v.

Union of Inma & Ors. , [1984] 2 SCR 65 at 159; Sheela Barse v. Union of India and others, [1988] 4 SCC 226; S. P. Gupta v. Union of India, [1981] (Supp. ) SCC 87 at 210; Durayappah v. Fernando, [1967] (2) All ER 152 (PC) = 1967 (2) AC 337; Data Processing Service v. Comp, 397 US 150 = 25 L Ed 2d 184; F/ast v. Cohen, 392 US 83 = 20 L Ed 2d 947 (1968); Office of Communication of the United Church of Christ v. FCC, US App De 328; U. S. v. Richardson, 418, US 166; Walth v. Seldin, 422 US 490; Attorney General (on the relation of MC Whirter) v. Independent Broadcasting Authority, [1973] 1 All ER 689; R v. Greater London Council, [1976] 3 All ER 184; Gouriet v. Union of Post Office Workers and Others, [1977] 3 All ER 70; Sunil Batra (II) v. Delhi Administration, [1980] ·3 SCC 488; Dr. Upendra Baxi (I) v. State of UP. , [1983] 2 SCC 308; Miss Veena Sethi v. State of Bihar and Others, [1982] 2 SCC 583; Olga Tellis v. Bombay Municipal Corporation, [1985] 2 Supp.

SCR 51 = [1985] 3 SCC 545; Ramsharan Autyanuprasi v. Union of India, [1989] Supp. 1 SCC ·251; Akhil Bharatiya Soshit Karamchari Sanga (Railway) represented by its Assistant General Secretary on behalf of the Association v. Union of India, AIR 1981 SC 298; National Textile Workers' Union etc. v. P. R. Ramkrishna & Others, [1983] 1 SCR 922; A. R. Antulay v. Ramdas Sriniwas Nayak, [1984] 2 SCC 500; D. S. Nakara v. Union of India, AIR 1983 SC 130; P. Na//a 1hampy 1hera v. Union of India, AIR 1984 SC 74; Rural Litigation and Entidement Kendra, Dehradun & Others v. State of U. P. & Others, [1985]' 2 SCC 431 and Kurukshetra University and another v. State of Haryana, [19771 4 sec 451, referred to. 2. 13.

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 now allow its process to be abused by a mere busybody or a meddlesome interpolar or wayfarer or official intervener without any interest or concern except for personal gain or private profit or other oblique consideration. S. P. Gupta v. Union of India, [1981] Supp. 87. State of H. P. v. Parent of Student, [1985] 3 SCC 169; Sachidananda pandey v. State of West Bengal, [1987] 2 SCC 295, 331;Autyanuprasi v. Union of India, [1989] Supp 1 SCC 251; Bandhua Mukti Morcha v. Union of India & Ors. , [1984] 2 SCR 65; Jasbhai Desai v. Roshan Kumar, [1976] 3 SCR 58; Fertilizer Corporation Kamgar Union v. Union of India, [1981] 2 SCR 52; Chhetriya Pardushan Mukti Sangharsh Samiti v. State of UP.

, [1990] 4 SCC 449; Union Carbide Corporation and Others v. Union of India and Others, [1991] 4 SCC 584 at 610 and Subhash Kumar v. State of Bihar & Ors. , [1991] 1 SCR 5, referred to. 2. 14. Only a person acting bona fide and having sufficient Interest in the proceeding of PIL will alone have a locus standi and can approach the JANTA DAL v. H. S. CHOWDHARY [P ANDIAN, J. ] 237 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 oblique consideration. Similarly, a vexations peti· tion under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold. [280-C] 2. 15. In the instant case, the respondent-chowdbary appears to be very much concerned with the personal and private interest of the accused in the criminal case and there is absolutely no involvement of public interest.

Can it be said that this litigation is in the nature of PIL to vindicate and effectuate the Public interest? The emphatic answer would be 'Not even a single ray of the characteristic of public interest litigation is visibly seen'. He has no locus standi at all to file the petitions. [284-C] 2. 16. In the earlier Order having held that respondent No. 1 bas no locus standi to file the petition or to invoke the revisional or extraordinary inherent jurisdiction of the High Court under Sections 397 and 482 of the Code of Criminal Procedure resp<ctively and that the petition under Article 51-A of the Constitution cannot come within the true meaning and scope of Public Interest Litigation, dismissed the application• of the interveners. [284 F-G] CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 304 of 1991 etc. etc. From the Order dated 17. 12. 1990 of the Delhi High Court in Criminal Misc. No. 2656of1990 in Criminal Miscellaneous Main No. 1821of1990.

Anand Dev Giri, Solicitor General, Altaf Ahmad, Addi. Solicitor General, Ram Jethamalani, K. G. Bhagat, P. S. Potty, Prashant Bhushan, Jayant Bhushan, Ms. Deepa Bhushan, P. K. Dey, Ms. Lata Krishnamurti, M. N. Shroff, Ms. A. Subhashini, A. Sobba Rao, Ashok Bhan, Ms. Anil Katiyar, P. N. Bhan, R. K. Dixit, A. M. Khanwilkar, AK. Khare, Ms. Kamini Jaiswal, P. K. Manohar and R. Sasiprabhu for the appearing parties. Nalla Thampy Thera petitioner-in-person. The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. We gave our conclusions in our earlier Order dated 27th August 1991 reserving the reasons to be given later. Accordingly, we render our reasons in the present judgment. We feel that a prefatory note, though not the detailed facts of the case, is necessary for disposal of these appeals and writ petition.

The facts culled out from various documents placed before this court are as follows: The Ministry of Defence, Government of India approved in August 1980 a proposal forwarded by Army Headquarters (HQ) recommending, inter-alia, the introduction of 155 mm calibre medium gun both towed and self-propelled to meet its defence operational requirements. The choice for obtaining the. said gun system/guns was short listed in December, 1982 to (1) Mis Sofma of France (2) Mis A. B. Bofors of Sweden (briefly called 'Bofors') (3) Mis International Military Services of U. K. and (4) Mis Yoest Alpine of Austria. In November 1985, there was a further shortlisting of Sofma and Bofors. Fmally, the order was placed by the Government of India with Bofors on 24th March 1986 for the supply of 410 numbers (400 plus 10 free) of 155 mm Field Howitzer 77-B gun system/spare guns vide contract No. 6(9)/84/D (GS-IV) for a total amount of SEK 8410. 66 million (Swedish Kroners) (equivalent to about Rs. 1437.

72 crores or Rs. 14377. 2 million). The related contract for supplying the gun package (towed) and other related agreements/contracts were concluded and signed on 24th March 1986 with Mis A. B. Bofors. On 17 April, 1987, . some leading newspapers of our country gave prominent coverage to a Swedish Radio Broadcast made in the previous day, broadcasting that bribes had been paid to senior Indian politicians and key Defence figures to win the contract awarded by the Government of India to M/s. Bofors of Sweden on 24 March, 1986. The Swedish Radio repeated the allegation on 17 April, 1987 claiming that it had documentary proof of the payoffs in four installments to Indian accounts in Swiss Banks and it had checked with Skandinaviska Enskilds Banken, the bankers for Bofors.

On the other hand, Bofors denied paying any kickbacks to Indian politicians or officials for the deal involving the supply of 155 mm Towed howitzers and also issued a statement on 17th April 1987, itself which statement reads thus: "AB Bofors has not paid, or conspired to pay, any bribes in connection with the order. All allegations to the contrary are hereby categorically denied. " JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 239 The Government of India on 17th April 1987 issued a statement denying the allegations contained in the news items based on the broadcast report, made by the Swedish Radio and Television in connection with the arms order placed on Swedish firm, Bofors and categorized the news item as false, baseless and mischievous. The part of the said statement reads thus: "Government's policy is not to permit any clandestine or irregular payments in contracts. Any breach of this policy by any one will be most severely dealth with.

" On 20th April, 1987, the Minister of Defence (Shri K. C. Pant) made a suo-motu statement on the subject in Lok Sabha stating inter-alia that on tbe eve of finalising \he contract, in response to a reiteration of Government's policy and a demand for confirmation, M/s Bofors had replied, vide their letter of the 10th March, 1986 that they did not employ any Representative/Agent in India for the project: However, for administrative services, e. g. hotel bookings, transportation, forwarding of letters, telexes etc. , they use the services of a local firm. The Defence Minister further stated that "if any evidence is produced involving violations of the law, the matter will be thoroughly investigated and the guilty, whoever they may be punished. " A similar statement was made by the Minister of State for Defence in Raj ya Sabha on 21st April, 1987: This issue created a storm of controversies both in the Lok Sabha · and Rajya Sabha.

Several issues were raised by the members in the respective Sabhas relating not only to the alleged kickbacks paid by M/s Bofors for winning the contract but also about the quality and suitability of the gun selected for procurement. On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister intervening in the debates in the Lok Sabha stated: ".......... And like Panditji has said now, you show us any evidence, we do not want proof. We will bring the proof. You show us any evidence that there has been involvement of middlemen, of payoffs or of bribes or commissions, we will take action and we will see that nobody however high-up is allowed to go free. " The then Defence Minister following the assurance made by the then Prime Minister stated: "The Prime Minister has already intervened on a number of occasions and has said that there are no charges at the moment and if evidence is asked fonhen we shall look into it.

We shall inquire into it and if somebody is found guilty ·we will punish him. This is the essence of what Members have been asking. " During the course of the discussion in Rajya Sabha and Lok Sabha, , . I< several members demanded a probe with full details by a Parliamentary ' Committee. When the matter stood thus on 4th June 1987, the Swedish Embassy in India, forwarded a copy of the Report dated ! st June 1987 of the Swedish National Audit Bureau (SNAB for short) with a note to the ' Ministry of External Affairs, Government of India, stating that what was I made available to the Government of India was only one part of the Report of SNAB but not report in its entirety and the rest was withheld by the Govermnent of Sweden on the bank secrecy requirements. The summary of the observations of the SNAB as extracted in the report of the JPC are as follows: " ..... that an agreement exists between AB Bofors and ..............

"' concerning the settlement of commission subsequently to the FH 77 deal; and - that considerable amounts have been paid subsequently 11 to, among others, AB Bofors' previous agent in India. (*Names not disclosed) However, the rep0rt did not disclose the names of the recipients of kickbacks as indicated above. This report of the SNAB (Swedish National Audit Bureau) was discussed by the then Prime Minister with the leaders of the opposition parties on 11 June, 1987. The Government decided to request the Speaker, Lok Sabha and the Chairman of the Rajya Sabha to set ap a Joint Parliamentary Committee (hereinafter referred to as 'JPC') to enquire into JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 241 and establish the identities of the persons who received the payments. But the Speaker and the Chairman of the respective Sabhas declined to set up on their own the JPC to probe into the Bofors deal.

Thereupon, the then Prime Minister during his meeting with the leader of the opposition in Parliament on 17 June, 1987 indicated that the Government would move motion in the Monsoon Session of Lok Sabha for the appointment of a Parliamentary Committee to probe into the Bofors deal. Accordingly, the Minister of Defence (Shri K. C. Pant) moved a motion on 29th July 1987 in the Lok Sabha for appointment of the JPC. While moving the motion, the Minister on 3rd August 1987 after recalling the whole sequence of events stated inter-alia as follows: "Two facts emerged from a careful study of the Report of the Swedish National Audit Bureau. These are, firstly, that sizable payments were made in 1986. It would also be seen that the most crucial portion of the Report, which contains particulars of the recipients of the amounts paid by 11 Bofors, have not been disclosed to us.

Further in justification of the constitution-of JPC, the Defence Minister added that "That Government has nothing to hide. The Government wants to get at the truth and that is why this Committee has been set up. " Therefore, certain substitute motions were moved by the Parliament Members and ultimately after a discussion in both the houses, the JPC was constituted with the appointment of its chairmain on 28. 8. 88 totally consisting of 30 elected members - 20 from Lok Sabha and 10 from Rajya Sabha for making the inquiry into the following matters: (i) Whether the procedures laid down for the acquisition of weapons and systems, were adhered to in the purchase of the Bofors' gun; (ii) to ascertain the identity of the persons who received, and the purpose for which they received, payments of the following amounts: (a) SEK 170-250 million (b) SEK 29 . 5 million (c) SEK 2. 5 million from M/s Bofors (as referred to in.

the Report of the Swedish National Audit Bureau, received by the Government of India on June 4, 1987); (iii) arising out of the enquiry, if there is prima facie evidence that M/s Bofors have in addition to payments mentioned in (ii) above, made any other payments for securing the Indian contracts, the identity of the persons who received such payments shall be ascertained; (iv) to determine if any Indian laws/rules/regulations have been violaied either by M/s Bofors or. by persons as indicated in (ii) and (iii) above. Of the elected members, two members by name Shri Mahabir prasad and Smt. Sumati Oraon resigned w. e. f. 16. 3. 1988. One other member, Dr. KG. Adiyodi died and three other members of the Committee ceased to be members of the Committee consequent on their retirement from Rajya Sabha w. e. f. 2. 4. 1988. In place of the members, who resigned and a member who died, these other members from the Lok Sabha were elected.

The JPC submitted its report on 22nd April 1988 with its conclusion, the resultant portion of which reads as follows: (i) to (xii) ............................... . (xiii) That there is no evidence to establish that the Bofors' payment totaling SEK; 319. 4 million involved a violation of any Indian law. · (xiv) There is no evidence of any other payment having been made by Bofors for winning the Indian contract. " One of the Members gave his note of dissent disagreeing with th• conclusions of the Committee. Para 7. 176 of the Report of JPC reads as follows: "7. 176. The Committee note that during discussions, in September, 1987 with the Government of India team, the JANTA DAL v. H. S. CHOWDHARY [PANDIAN, J. J 243 Bofors officials gave the following information regarding the names of Companies and details of payments made to them by way of winding- up charges:- (i) SVENSKA INC. PANAMA - SEK 188. 4 million (ii) MORESCO/MOINEAO - SEK 81 million in three S. A.

(PITCO) Geneva instalments of SEK 37 million, SEK 12 million and SEK 32 - million. (iii) A. E. SERVICES Ltd. , U. K. SEK 50 million" It is further seen from the Report of the JPC that Mr. Lars Gotblin, Chief Jurist and Senior Vice-President of the Noble Industries was examined by the JPC and during the examination his attention was drawn to a statement of Mr. Thunbolm, Chairman of the Noble Industries, which is the holding company of M/s AB. Bofors that so fll! as be was aware, payments had been made to Indians or to an Indian company in connection with the contract. Of course, the Chief Jurist finding himself in a piquant situation, said that the words of Dr. Thunbolm were twisted. (Vide paras 7. 41 and 756 of the Report of JPC). In spite of the conclusion in the Report of the JPC, allegations of malpractices in the deal with Bofors, payments of kickbacks and receipt of illegal gratification were persistently reiterated and the matter was relently agitated.

Meanwhile, there was a change of Government. In the aforesaid circumstances, the Superintendent of Police, CBl/DSPE/ACU-IV, New Delhi registered a First Information Report on 22nd January 1990 in Crime No. RC 1 (A)/90/ACU-IV under Section 120-B read with Sections 161, 162, 163, 164 and 165-A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the Prevention of Corruption Act, 1947 read with Sections 409, 420, 468 and 471 of the Indian Penal Code against 14 accused of whom three are named, they being (1) Shri Martin Ardbo, former President of Mis A. B. Bofors, Sweden, (2) Shri. Chadha alias Win Cbadha, S/o Shri Assa Nand, President of Mis Anatronic General Corporation/Anatronic General Companies Ltd. , ·c/4, Main Market, Vasant Vihar, New Delhi and Shri G. P. Hinduja, New Zealand House, Hay Market, LOndon SW-1.

The rest of the 11 accused are stated in general as directors/employees/holders/beneficiaries of account code and public servants of the Government of India. The preface of the First Information Report shows that the case was registered "on the basis of reliable information received from certain sources, ·certain facts and circumstances that have become available, through media reports dated 1st June 1987 of the Swedish National Audit Bureau, certain facts contained in the report dated 22nd April 1988 of the Joint Parliamentary Committee (JPC) and the report dated 28th April 1988 of the Comptroller and Auditor General of India (CAG)". The FIR gives a detailed sequ~nce of the events relating to the purchase of guns from M/s A. B. Bofors, Sweden and the related agreements entered thereupon in violation of the Government's policy i. e. not to involve any agent and the existing law of this land.

Various allegations are made mention of in the FIR regarding the payments of bribes/kickbacks and receipt of illegal gratification, the debates made in 0 the Parliament, the correspondences among the parties and the various findings of the JPC. It is further averred in the First Information Report that even in the letter dated 3. 10. 86, sent to the Swedish National Bank, Bofors had referred to some of the payments to Svenska Inc. and the code name 'Mont Blanc' as "commission payments" and that the payment to M/s Moresco/Moineao/SA/Pitco, Geneva was deposited by Bofors in three code name accounts, namely, "Lotus" in Suissee Bank Corporation, 2 Rue de la Confederation 1204, Geneva; ''Tulip" in Manufacturers Hannover Trust Company, 84 Rue du Rhone, 1204, Geneva and "Mont Blane" in Credit Suissee, 2 Place Belle Air, 1204, Geneva and that these payments to code name accounts are without mentioning or disclosing the payers' names.

Ultimately, reference was also made in paragraph 112 of the FIR to the statement of Mr. Thulholm, Chairman of Noble Industries reading: "As the report of JPC discloses, Shri Thulholm, Chairman of Noble Industries had stated that so far as he was aware, payments had been made to Indians or to an Indian company in connection with the contract. Shri Thulholm had also stated that he could not guarantee that bribes had not been paid. Bofors being a subsidiary of Noble Industries, these statements of Shri Thulholm are important. " The core of the allegations in the FIR is that the accused, named and unnamed, entered into a criminal conspiracy, obtained illegal gratification in the form of money from BOFORS, a Swedish company through the agent/firms/companies/persons as motive or reward for such public ser- JANTADAL v. H. S. CHOWDHARY[PANDIAN,J.

] 245 vants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding contracts to BOFORS for the supply of guns to the Go. vernment of In\fia and in the transaction committed the offences of criminal breach of trust, cheating, forgery and using of forged documents. It appears that the CBI has commenced its investigation during the course of which it has recorded statements of witnesses and took into its custody various documents and files relating to this Bofors deal. While it was so, the CBI moved an application before the Special Judge, namely, Shri R. C. J. ain requesting to issue a letter rogatory/request to Switzerland urgently for getting the necessary assistance so that the investigation can be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated.

Be it noted, the compelling reasons which necessitated the CBI to file that application h~ve already been given in brief in our earlier order dated 27th August 1991 reported in [1991) 3 SCC 756. Therefore, we are not repeating those facts. in this final judgment. The Special Judge after hearing the then Additional Solicitor General of India, Deputy Legal Advisor of CBI and S~nior Public Prosecutor allowed that application by his order dated 5th February 1990. The relevant portion of which reads thus: "In the result, the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to.

the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, Government of India subject to the filing of the requisite/paper undertaking required by the Swill Law and assurance for reciprocity. " The Special Judge also directed certain documents to be sent along with this letter of rogatory. Further, the learned Judge has put up a note reading thus: "Needless to mention that no (sic - any) observation made in this order shall tantamount to expression of opinion at any subsequent stage of enquiry or trial. " It appears that tl:e Jetter rogatory was sent back by the order of the Cantonal Court of Geneva for compliance of certain procedural formalities in that said order.

It was at this relevant time that Shri Harinder Singh Chowdhary, an Advocate -claiming to be the General Secretary of an Organisation named as Rashtriya Jan Parishad which according to him, is devoted to uphold the "Rule of Law, fight against injustice in any field and abide by the Constitution and respect ideals and institutions" filed Criminal Miscellaneous Case No.

12 of 1990 before the Special Court under Article 51 (A) of the Constitution of India seeking the following prayers: "In the premises your petitioners humbly request that in order to maintain the dignity, prestige and the fair name of the country and the ideals enshrined in the Constitution no rogatory Jetter be issued on the formal request of the CBI unless the allegations against named persons are established to the satisfaction of this Hon'ble court: It is further requested that 110 request for rogatory or freezing bank account be made to Swiss Government unless the concerned persons are noticed and heard on the subject: It is further requested that the petitioner may be permitted to join during inquiry before this Hon'ble Court in the capacity of Public interest litigant: It is further requested that inquiry under Section 340 Cr. P. C. be held to determine the alleged offence committed by various persons and till then proceedings of rogatory be stopped. " The Special Judge, Shri V.

S. Aggarwal dismissed that petition by his order dated 18th August 1990 observing thus: "It goes without saying that Letter Rogatory had been issued by Shri R. C. Jain, then Special Judge, Delhi on recording his satisfaction that it should be issued. The JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 247 petitioner has appended along with the application the copy of the order passed by the Cantonal Court, Geneva. It is accompanied by its English translation. It clearly recites that application for judicial assistance should be sent back after completing the procedural formalities mentioned in the order. It cannot, therefore, be said that the letter of request had been rejected. It further does not call for any fresh reconsideration in this regard pertaining to the order passed by my learned predecessor.

Coming to the question of locus standi of Shri Harinder Singh Chowdhary ·to file this petition requesting the prayers mentioned ibid, the learned Judge held thus: "Examining the present case on the touch-stone of the above mentioned cases, it is clear that though petitioner is a member of the noble profession, but while the matter is still at investigating stage, he cannot be permitted to intervene and the doors of the Court will not be ajar for him. He has no direct interest in such investigation nor suffers any special Joss. Therefore, at the threshold, one can safely conclude that he has no /ocus-standi to claim reliefs mentioned above. " Consequent upon the above findings, the Special Judge dismis,ed the petition stating, "This request of the learned counsel cannot be accepted. ' Thereafter, the Special Judge issued (1) Note of Compliance and (2) Amended letter rogatory on August 22, 1990.

On being aggrieved by the order of the Special Judge dated August 18, 1990, Shri Harinder Singh Chowdhary filed a criminal revision before the High Court of Delhi under Sections 3"17/482 of the Code of Criminal Procedure raising multiple questions of law challenging the legality and validity of not only the impugned order but also the very registration of the FIR and the investigation carried thereon by the CBI. The reliefs sought for in the criminal revision are as follows: "(a) to quash the entire FIR No. RC l(A)/90/ACU-IV. dated January 22, 1990 and criminal proceedings covered by the same. (b) or remand the case to the Special . Judge permitting the petitioner to argue his case before the lower court and also direct the court below to decide the petition on merits. ( c) direct the court that no request for rogatory letters be made to Swiss Government, till the petitioner is heard on his application. ( d) the petitioner may be permitted to join during the inquiry to determine .

the question of dual criminality before the learned Special Judge in the capacity of public interest litigant, and also direct tl\e learned Special Judge to decide the question of dual crimin3lity before issuing the letter rogatory. (e) direct the learned Special Judge not to issue any rogatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence. ' This revision petition has been registered as Criminal Miscellaneous (Main) No. 1821 of 1990 on the file of the High Court of Delhi. During the hearing of this case, several applications seeking impleadment/intervention were filed by various political parties and others of whom one was by Mr. Shanti Bhushan, an Advocale of this Bar and another by Mr. N. Ram and so on. The above criminal case (Criminal Miscellaneous (Main) Case No. 1821 of 1990 was listed before Justice M. K.

Chawla, the then Judge of the High Court of Delhi, Several applications were taken before him by the impending interveners seeking several prayers such as permitting them to implead themselves in the revision proceedings and affording them adequate opportunities to make their submissions before the Court opposing the revision petition. As the prayers of the interveners were ncit acceded to, the Janata Dal etc. filed a special leave petition (criminal) No. 2320 of 1990 before this Court which passed an order on 10th December 1990, the relevant portion of which is as follows: ".......... We are of the view that the learned Judge should JANTA DAL v. H. S. CHOWDHARY [PANDIAN, J. ] 249 dispose of these applications by a judicial order before the matter is reserved for judgment and in case the applications are not accepted, judgment should not be delivered for at least 2 days after such an order on these writ petitions (sic on the revision petition) is made to enable them to move this court.

" In compliance of the above direction of this Court, Mr. Justice Chawla heard Mr. Ram J ethmalani, Sr, counsel who appeared on behalf ofJanata Dal and Mr, Prashant Bhushan. It appears Mr. Jethmalani was constrained to make a request to Mr, Justice Chawla to recuse himself from the case, which request, of course, was rejected by the learned Judge, Thereafter, a petition for recusation was filed which was also dismissed. Mr. Justice Chawla after hearing the learned counsel for Mr. H. S. Chowdhary as well as the interveners, passed his final impugned order on 19th December 1990, dismissing the revision petition, the relevant portion of the said order read thus: "In my opinion, the case of the petitioner does not fall within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha v. Union of India, [1986] Supp SCC 553. So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf.

The same is hereby dismissed. As a consequence of the dismissal of the present petition, holding that the petitioner has no locus stand~ the applicants have no right to be impleaded and their impleadment/intervention applications are also rejected. This is not the end of the matter. There is yet another process by which the court can take judicial notice of any illegality being committed by any court, with a view to prevent the injury being caused to the known or unknown aggrieved party. " xx xx xx The learned Judge of the High Court, Mr. Justice M,K. Chawla after referring to Sections 119, 397, 401 and 482 of the Code of Criminal Procedure concluded thus: "In the light of the settled legal proposition, I have carefully examined the record placed before me. Prima fade, I am of the opinion that the following illegalities have been committed by the Trial Court: (1) That the FIR filed by the CBI in this case on the face of it does not disclose any offence.

It is in violation of the provisions of Section 154, inasmuch as no investigation can be carried out for an offence alleged to have been committed outside India, and the court of the Special Judge should not have taken cognizance of the same. (2) That the C. B. I. should have exhausted their remedies before the J. P. C. before launching proceedings in the court of the Special Judge inasmuch as the same investigating agency cannot be allowed to override the findings of the JPC, and this aspect has not been taken into consideration by the trial court. (3) The court of the Special Judge who issued letter rogatory had no jurisdiction to entertain such a request or to pass any order on it. (4) The so-called memo of understanding relied upon by the trial court was contrary to the Municipal law of the land and is violative of Article 21 and 300-A of the Constitution of India.

( 5) That the CBI is not a legally constituted force which can be entrusted with the investigation; and (6) That the investigation on the face of it is biased and influenced by outside agencies. So, I sue motu take cognizance while exercising my powers under Sections 397 and 401 read with Section 482 of the Code, and direct the office to register the case under the · title, court on its OWi\ motion. vs. State and CBI. Consequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of JANTADAL v. H. S. CHOWDHARY [PANDIAN, J. ] 251 FIR No. RCI (A)/90/ACU-IV dated 22. 1. 90, pending in the court of Shri V. S. Aggarwal, Special Judge, Delhi, be not quashed. " Feeling aggrieved by the above order of Justice Chawla of Delhi High Court, all these criminal appeals and the Writ petition have been filed before this court. This Court on 20th December 1990 in Criminal Appeal No. 304 of 1991 (arising out of SLP Criminal No.

2476 of 1990 filed by the Janata Dal) passed the following order granting interim stay: "In the meantime, the reasons leading to registration of the suo motu proceedings would not be operative. There shall be interim stay of proceedings including hearing before the High Court. ' We have given a gist of all those appeals as well as the Writ Petition in our Order dated 27th August 1991. Therefore, we feel it not necessary to reiterate the same. After carefully considering all aspects of the case and examining the rival contentions of the parties we have recorded our conclusions in the earlier order as follows: "1. Mr. H. S.

Chowdhary has no locus standi (a) to file the petition under Article 51-A as a public interest litigant praying that no letter rogatory/request be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on February 5, 1990 directed issuance 0f letter rogatory/request to the Competent Judicial Authorities of the Confederation of- Switzerland; (b) to invoke the revisional jurisdiction of the High Court under Sections 397 read with 401 of the Code of Criminal Procedure challenging the correctness, legality or propriety of the order dated August 18, 1990 of the Special Judge and (c) to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the first information report dated January 22, 1990 and all other proceedings arising therefrom on the pleas of preventing the abuse of the process of the court. 2. In our considered opinion, the initiation of the present proceedings by Mr.

H. S. Chowdhary under Article 51-A of the Constitution of India cannot come within the true meaning and scope of public interest litigation. 3. Consequent upon the above conclusions (1) and (2), the appellants namely, Janata Da~ Communist Party of India ( Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their impleadment/intervention. For the same reasons, Dr. P. Nalla Thampy Thera also has no right to file the Writ Petition (Criminal) No. 114 of 1991 as public interest litigant. 4. Having regard to the facts and circumstances of the case,. the suo motu action of Mr. Justice M. K. Chawla in taking cognizance in exercise of the powers under Sections 397 and 401 read with Section 482 of the Code based on the convoluted and strained reasoning and directing the office of the High Court of Delhi to register a case under the title Court on its motion v. State and CBI cannot be sustained. Consequent upon the above conclusions No.

(4), we hold that the directions of Mr. Justice M. K. Chawla calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the first information report dated January 22, 1990 be not quashed, cannot be sustained. In the result, we agree with the first part of the order dated December 19, 1990 of Mr. Justice M. K. Chawla holding that parties have no locus standi. We, however, set aside the second part of the impugned order whereby he has taken suo motu cognizance and issued show-cause notice to the State and CBI and accordingly the show-cause notice issued by him is quashed. In view of the above conclusions, all the proceeding~ initiated in pursuance of the first information report dated JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 253 January 22, 1990 relating to Crime No.

RC/(A)/90/ ACU· IV on the file of the Special Judge, Delhi including the issuance of the letter rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law. In Summation Criminal Appeal Nos. 304, 305, 306, 307, 308 and 309 of 1991 are dismissed. Criminal Appeal No. 310 of 1991 filed by the Union of India against the order dated September 5, 1990 of the High Court is dismissed in view of the fact that the said order does not survive for consideration on the passing of the fmal order dated December 19, 1990. The Writ Petition No. 114 of 1991 is also dismissed. Criminal Appeal No. 311 of 1991 filed by Union of India and CBI is allowed for the reasons stated above. " The sum and substance of the order of Mr.

Justice Chawla in this regard, is that Harinder Singh Chowdhary has no locus standi to file the revision petition and resultantly his revision petition was not maintainable and consequently all the applicants (interveners) have no right to be impleaded and that the applications for impleadment/intervention were liable to be rejected. Mr. Anand Dev Giri, the learned Solicitor General (as he then was) and thereafter Mr. Altaf Ahmad, the present Additional Solicitor General appearing on behalf of the Union of India as well on behalf of CBI and Mr. Ram Jethmalani and Mr. Shanti Bhushan, learned senior counsel assisted by Mr. Prash ant Bhushan appearing in Criminal Appeal Nos. 304, 305 and 307 of 1991 and Mr. K. G. Bhagat, the learned senior counsel appearing in Criminal Ap,Peal Nos. 306 and 311 of 1991 on behalf of Mr. H. S.

Chowdhary besides a battery of lawyers representing their respective parties advanced respective arguments for a considerable length of time raising multiple questions of law with reference to the various legal aspects. Though, more often than not, there were some heated arguments - oc· casionally tinged with acrimony and tumult - all the learned counsel made their erudite submissions and scholarly debate in forensic eloquence ex~ hibiting their profound knowledge of law - particularly in thr criminal field. The resultant propositions deducible from the rhetorical submissions and the counter-submissions expostulated with reference to various provisions of the Constitution, Code of Criminal Procedure (hereinafter referred to as 'the Code') and other cognate statutes can be summarised as follows: 1.

The unrestricted and inherent powers of Subordinate Courts - both Civil and Criminal - apart from their ancillary and incidental powers, in the absence of any provision to the contrary could and should be exercised ex-debitio justiciae for ends of justice, that is for taking steps as may be necessary to enable the Courts in dis-charge of the judicial functions to issue directions or pass appropriate orders without causing prejudice to either of the parties for administering substantial justice whenever legitimate occasion for doing so arises. 2. The discretionary power of the Special Judge in issuing Letter Rogatory on 5. 2.

1990 even before the introdnction of Section 166-A of the Code of Criminal Procedure (hereinafter referred to as "the Code") in exercise of his uninhibited inherent powers is supported by the Memorandum of Understanding (MOU) creating a con-tractual arrangement between the two countries, namely, India and Switzerland which arrangement amounts to bilateral international treaty having a binding force between the two contracting parties and also in substantial . compliance of Section 285 of the Code. 3. Criminal Courts are not forbidden in participating in the course of investigation in the matter of collection of evidence; and in fact the Courts are invested with statutory power to take active role and aid the investigation in gathering evidence as contemplated under Sections 91, 93, 94, 105 (as amended by the Amending Act XXXII of 1988), 284, 285 etc. of the Code as well as under Sections 156 (3), 157, 159, 167 (2), 190, 202, 164, 306 etc. of the Code. 4.

Neither an accused nor a pnblic interest litigant has JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 255 right to question the mode of collection of evidence of the investigating agency and interfere in the progress of the investigation. 5. The re-submission (after complying certain procedural formalities) of the Letter Rogatory on 22nd Febrsary 1990, subsequent to the introduction of Section 166-A of the Code by an Ordinance promulgated on 19th February 1990 and replaced by an Act coming into force with retrospective effect from 19 . 2. 1990 is supported by sanc-tion of law. 6. Whether the Memorandum of Understanding (MOU) is constitutionally invalid, being contrary to Articles 73 and 77 and in conflict with and opposed to Articles 21 and 300 A of the Constitution? 7. Whether Courts can take judicial noiice of the MOU without its being gazetted and ratified in compliance with the Vienna Convention on the Law of Treaties, 1969? 8.

Whether the Central Bureau of Investigation (CBI) is a legally constituted body and empowered with powers of registering and investigating a cognizable offence? 9. Whether the contents of the First Information in the present case constitute a cognizable offence warranting the registration of a case under Section 154 of the Code? 10. What are the circumstances under which the Criminal Court can suo moto exercise its revisional jurisdiction? 11. Is there any bar for the Courts to examine the report of the Joint Parliamentary Committee (JPC) constituted by the Parliament under the Rnles of Procedure made under Article 118 of the Constitution or for a successor Government to question its findings in the absence of any negation or modification or change of the findings of the Report? The learned counsel for the parties while advancing their argu;nents on the above propositions posed several ancillary questions of law. Mr.

Bhagat made a special reference to The Geneva Convention Act of 1960, The Extra Convention. Act of 1962, The International Monetary Fund and Banking Act of 1945, The Diplomatic Privileges Act of 1964 etc. in support of his contention that the present MOU cannot partake of the force of law and that it cannot be invoked. A host of decisions were cited at the Bar in support of the above propositions. It is not only appropriate but also has become necessary in this connection to point out that the grounds taken in the petition filed by Mr. H. S. Chowdhary before the Special Judge were only with reference to issue of Letter Rogatory and the authority of the CBI to register a case in the absence of any named public servant being. brought as accused in the FIR and the power of CBI to investigate the case since the JPC had already rendered its findings on the subject-matter in issue.

One other contention was that the registration of the case was on account of political rivalry I) entertained by the Janata Dal Government as against the outgoing Congress Government. The Special Judge disposed of the petition holding, "Shri H. S. Chowdhary has no locus standi to claim the reliefs sought for in the petition. " In the revision petition, Mr. H. S. Chowdhary took certain additional grounds stating that. the First Information Report has not disclosed the commission of any cognizable offence and the CBI has gone wrong in registering the FIR in the absence of any additional evidence which were not available before the JPC ·and that the Letter Rogatory ought not have been issued without recording evidence. The High Court dismissed the revision petition as being not maintainable on the sole ground of locus standi and did not go to other questions of law raised by Mr. Chowdhary.

Only for the first time before this Court, the parties are litigating on the above stated propositions of law which except for one or two have neither been raised before the Courts below nor agitated. Strictly speaking, as the present appeals are preferred challenging only the judgment of the High Court dated 19. 12. 90, this Court is called upon to examine the tenability of the reasons given by the High Court as regards the locus standi of Mr. H. S. Chowdhary and in addition, the invocation of the suo motu action of the High Court in exercise of its revisional jurisdiction. This court while disposing of Criminal Appeal No. 306/91 filed by Mr. H. S. Chowdhary challenging the first part of the order of the High Court dismissing his revision petition on the ground that he has no locus standi, has confined its consideration only on that point.

However, with regard to the various questions of law, we expressed our view in our earlier Order as follows: "Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.

" We have also given the reasons for not dealing with specific propositions raised by the respective counsel in our earlier Order observing thus: "Therefore, under these circumstances one should not lose sight of the significant fact that in case this Court pronoun-ces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public inter-est litigants, without hearing the really affected person/persons, such opinion or conclusions may, in future, in case the investigation culminates in filing a final report become detrimental and prejudicial t<> the indicated accused persons who would be totally deprived of challenging such opinion or conclusions of this apex Court, even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants.

" However, as we. have expressed our view "that the question as to whether laws are so petrified as to be unable to respond to the challenges made will be dealt with in detail in our main judgment, we have to examine the law as regards the scope and ambit of public interest litigation and the power of the High Court in taking suo motu cognizance in exercise of its powers under Section 3'YI and 401 read with Section 482 of the Code which are the general issues as indicated by us in our earlier Order. We hasten to add that we will not be justified to make disembodied . pronouncements or any observation on seriously disputed questions of law and facts taking its cue from mere affidavits, that too not from the person aggrieved or affected and without the b. attle lines being properly drawn by the affected parties.

We shall now briefly deal with the scope and object of 'public interest litigation' (PIL), the horizon of which is widely extended and which at present constitutes a new chapter in justice delivery system acquiring a significant degree of importance in the modern legal jurisprudence prac-ticed by Courts in many parts of the world, based on the principle, "Liberty and Justice for All". Public Interest Litigation - its origin and meaning The question, "what 'PIL' means and is? " has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of the words 'Public Interest' is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as "the common well being ............... also public welfare". In Shrouds Judicial Dictionary, Vol.

4 (IV Edition), 'public interest' is defined thus: "PUBLIC INTEREST (1) A matter of public or general interest "does not mean that which is interesting as gratify-ing 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. " (per Cambell CJ. , R. v. Bed· fordshire, 24 L. J . Q. B. 84). In Black's Law Dictionary (Sixth Edition), 'public interest' is defined. as follow: "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 JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 259 curiosity, or as the interests of the particular localities, which may be affected by . the matters in question. Interest shared by citiiens generally in affairs of local, staie or national government ............. ;.... .

The expression 'litigation' means a legal action including all proceed' ings 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 br 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. There is a host of decisions explaining the expression 'PIL' in its wider connotation in the present-day context in modern society, a few of which we will refer to in the appropriate part of this judgment. It would be quite appropriate in the case on hand to analyze both the basic features and the evolution and profound transformation of the developing and growing PIL in modem society.

Suffice it to say that the challenges facing this meliorable litigation are examined in the light of their social, economic, political and ideological causes; and that the solutions to be adopted by the legal system to meet those challenges are explored, since there is still an ocean of umnet needs. The•e challenges are : (1) The expanded role of Courts in the modern 'social' state and the new demands for judicial responsibility; (2) the rise and growth of varied systems of judicial review and the legitimacy of such development; (3) the emergence of the notion of 'access to justice' as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL, and (4) the role of courts in promoting the legal system in the arena of PIL. The relentless efforts taken by courts in meetiilg all those challenges, in fact, strive for a optimality in which the interest of the least advantaged is given an overriding priority. During the last three.

decades, judicial activism has opened up new dimension for the judicial process and has given a new hope to the justice-starved millions. Ort the question of legitimacy of the PIL and the significant importance ofits various aspects· in the context of the present-day felt needs, stimulated by the emergence of a variety of new social movements and societal exigencies, this Court has laid down a Icing line of decisions, outlining the evolution of PIL, its vital issues and problems relating to the focus, choice of relief methods, the means and the administrative strategy for litigation and the demand for distributive justice for resolving the complicity of social problems and creating genuine initia-tives so that this new activism may be more meaningful social justice.

Thus the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records, especially in the arena of constitutional and legal treatment for 'the unrepresented and under-represented'.. The period of 1960s in United States of America was the important . period of social embroilment during which not only manifold changes to many institutions took place; but also significant reforms of which public interest litigation was one were proposed and tried The concept of PIL though had its origin in U. S. A. , over the march of years it has passed through various changes and modifications in their common law based systems. It is not necessary to examine all those modifications and changes in the structure of the public law of that.

country and the manner in which the legal services have been redistributed in American society except saying that the strict requirement of legal interest has been diluted and attenuated in the country of its origin. Similarly, the common law based systems in other parts of the common wealth countries have also undergone various changes. Legal aid programmes in Australia and Canada have been restructured to serve divergent aspects of the public interest. Some '! f the countries have gone to the extent of broadening its scope even beyond litigation and including many varieties of negotiations and even non-litigating approaches. Thus the definition of PIL emerged from historical context in which the commonality of the various forms of legal representation involving the basic and fundamental rights of a significant segment of the public demanding vindication of its rights has been recognised in various parts of the world.

The emergence of the concept of PIL, in the Indian legal system has been succinctly explained by P . N. Bhagwati, J. (as he then was) in one of his articles contributed under the caption 'Social Action Litigation: The Indian Experience' thus: "The judiciary has to play a vital and important role not only in preventing and remedying abuse the misuse of power but also in eliminating exploitation and injustice. For this purpose it is ncessary to make procedural innova- JANTADAL v. H. S. CHOWDHARY[PANDIAN,J. ] 261 ti. ons in order to meet the challenges posed by this new role of an active and committed judiciary.

The summit ju<J\ciary in India, keenly alive to its social responsibility and accountablity to the people of the country, has liberated itself from the shackles of Wester thougbt, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice for socially and economically ~isadvantaged groups ..... During the last four or five years however, judicial activism has opened up a new dimension for the judicial process and has given new hope to the justice-starved millions of india. " (Vide 'Role of the Judiciary in Plural Societies' published in 1987. ) Indian law has historically been strongly identified - both in theory and practice - with a tradition which has been concerned with the rigbts and duties of individuals.

Yet in recent years it has been recognized that this tradition is ~adequate to cope with a wide range of problems arising out of inequality of means, opportunities and entitlements in society. This conflict has generated increasing discussion of PIL, and also the development of a whole new corpus of law for eft:ective and purposeful implemen-tation of PIL and institutions explicitly concerned with the manner and techniques by which the public interest is, . •nd can be, safeguarded by the legal system. The seed of the concept of PIL wene initially sown in India by Krishna Iyer, J. in 1976 (without assigning tihe terminology) in Mumbai Kamgar Sabha v.

Abdulbhai, [1976) 3 SCC :~32, he while disposing an industrial dispute in regard to the payment of bnous, has observed: "Our adjectival branch of juri~prudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal i;egments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural short comings.

Even Article 226, viewed on wider perspective, may be amenable to ventilation of col-lective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has . opted for the narrower alterna-tive. Public interest is iiromoted by a spacious construction of locus standi in ol! l' socio-econ<Jmic circumstances and conceptual latit11dinarianism permits taking liberties with individualis<1. UQI\ of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. " After the germination of the se. eds of the concept of PIL in the soil of our judicial system, this rule of PIL was nourished, nurtured and developed by the Apex Court of this land by a series of outstanding decisions. In Feltilizer CopoMtion Kamgar Union v.

Union of India, [1981] 2 SCR 52 = AIR 1981 SC 344 the terminology 'public interest litigation" was used. In that decision, Krishna Iyer, J. delivering his opinion for Bhagwati, J. (as the learned Chief Justice then was) and himself used the expression 'epistolary' jurisdiction. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of PIL and took its root firmly in the Indian Judiciary and fully blossomed with fragrant smell in S. P. Gupta v. Union of India, AIR 1982 SC 149. Locus Standi Though it is imperative' to lay down clear guidelines and propositions; and outline the correct param

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