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PETITIONER: THE JANATA DAL & ORS. ETC.

       Vs.

RESPONDENT: H.S. CHOWDHARY & ORS. ETC.

DATE OF JUDGMENT27/08/1991

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) SHETTY, K.J. (J)

CITATION:  1991 SCR  (3) 752        1991 SCC  (3) 756  JT 1991 (3)   497        1991 SCALE  (2)400

ACT:     Criminal Trial--Criminal case registered against  speci- fied   persons   --Public  interest  litigation   by   third party---Whether maintainable.     Constitution   of  India,  1950--Article    51-A--Public interest litigation by a lawyer before Special Judge  in the case  under Section 120B read with Sections 161,  162,  163, 164,  165A  of IPC. Sections  5(2),  5(1)(d),  5(2)/5(1)(c), Prevention of Corruption Act, pending--Maintainability of.     Criminal Procedure Code, 1973 - Sections 397, 401,  482- Revisional jurisdiction of High Court--Whether invokable  by public interest litigation.     Criminal Procedure Code, 1973- Sections 397, 401,   482- Suomoto action--Registering a case under the title "Court on its motion v. State and CBI"--Legality of.

HEADNOTE:     On  22.1.90  a First Information Report  was  registered under  section 120-B read with sections 161, 162,  163,  164 and  165A of the Indian Penal Code read with Sections  5(2), 5(1)(d)  and  5(2)/5(1)(c) of the PreventiOn  of  Corruption Act,  1947 read with sections 409, 420, 468 and 471  of  the Indian Penal Code against 14 accused alleging that  theyent- ered into a criminal conspiracy, obtained illegal gratifica- tion  in  the form of money from BOFORS, a  Swedish  company through  the  agent  firms/companies/persons  as  motive  or reward  for such public servants who by corrupt  or  illegal means  or  by  otherwise dishonestly  using  their  official position  as public servants caused pecuniary  advantage  to themselves,  BOFORS, the agents and others in awarding  con- tracts to BOFORS for the supply of guns to the Government of India and in the transaction also committed the offences  of criminal breach of trust, heating of Union of India, forgery and using of forged documents etc.     The C.B.I. commenced its,investigation during the course of which statements of.witnesses were recorded and took into their custody 753 various documents and files relating to this BOFORS deal.     The C.B.I. moved an application before the Special Judge stating  that the investigation of the case was to  be  con- ducted  not only in India, but also in  Switzerland,  Sweden

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and other countries, that an important aspect of .the inves- tigation  which  was to be conducted in Switzerland  was  to collect  documentary and oral evidence relating to  all  as- pects  of  the  accounts in banks in  Switzerland  to  which remittances were made by’ M/s. A.B. Bofors from Sweden; that the, Director of the C.B.I. requested the concerned authori- ties  in  Switzerland  for  freezing/blocking  certain  bank accounts  relevant  to this case and the Federal  Depart-  . ment  of  Justice  and Policy, Switzerland  moved  Judge  of Geneva and the concerned Judge of Zurich; that the  relevant accounts  in  the bank had been blocked upto  28.2.1990  and that  request  for judicial assistance from  Switzerland  in this’ matter, therefore, should be made by 28.2.1990 failing which  the Swiss Law obliges the withdrawal of  instructions to  block  the accounts the Swiss authorities  would  render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20.2.1989 only on receipt  of  a Letter Rogatory from the  competent  judicial authorities in India.     The C .B.I. requested the Special Judge to send a Letter Rogatory/  request to Switzerland urgently for  getting  the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence  would remain  uncollected and the cause of justice would be  frus- trated. The Special Judge allowed the application of the C.B.L     Before  the new Special Judge who assumed charge of  the office  from  the previous Special Judge, the  appellant  in Crl. A. No. 306/91 filed a Public Interest Litigation  under Article  51-A of the Constitution of India praying  that  no Rogatory  letter be issued on the formal request of the  CBI unless  the  allegations against named persons  were  estab- lished to the satisfaction of the Court; that no request for Rogatory  or ’freezing bank account be made to  Swiss  Govt. unless  the concerned persons were noticed and heard on  the subject;  that  the petitioner be permitted to  join  during inquiry  in the capacity of public interest  litigant;  that inquiry  u/s. 340, Cr.P.C. be held to determine the  alleged offence  committed  by  various persons and  till  then  all proceedings of Rogatory be stopped.     The Special Judge dismissed the petition and issued Note of Compliance and amended Letter Rogatory. 754     The  public interest litigant filed a criminal  revision before the High Court. During the hearing of the case before the    High    Court,    several    applications     seeking impleadment/intervention were filed.     Dismissing  the revision, the High Court held  that  the petitioner has no locus standi to maintain the petition  and consequently  the interveners also had no right to seek  for impleadment  or intervention and taking suo moto  cognizance of  the  matter for the reasons assigned. in his  order  the judge directed issue of show cause notice to the CBI and the State  (Union of India) as to why the proceedings  initiated on the strength of the FIR dated 22.1.90 pending before  the Special  Judge  be not quashed; against which  the  criminal appeals and the writ petition were filed in this Court.     CrI.A. No. 304/91 is preferred by the Janata Dal against the order passed by the High Court rejecting its application filed  before the High Court requesting the Judge to  recuse himself from the proceedings. CrI.A. No. 305/91 is filed  by the Janata Dal against the order of the High Court rejecting the  application for impleadment of the appellant and  other interveners  and also issuing suo moto notice to  the  State and the CBI.

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   Crl. A. No. 306/91 is directed by the original petition- er  who  filed  the public interest  litigation  before  the Special Judge challenging the first part of the order of the High  Court dated 19.12.90 .dismissing his petition  on  the ground that he had no locus standi to file the petition.     CrI.A.  No. 307/91 is preferred by the Janata Dal  ques- tioning  the correctness of the earlier order passed by  the High Court refusing to allow the appellant’s application for impleaament/intervention.     Crl.  A. No. 308/91 has been directed by  the  Communist Party of India (Marxist) against the order of the High Court refusing to allow its application for  impleadment/interven- tion.     CrI.A.  No. 309/91 is preferred by india  Congress  (So- cialist)  against  the main order of the  High  Court  dated 19.12.1990  dismissing its application for  impleadment  and taking up suo moto cognizance for quashing the FIR.     CrI.A.  No. 310/91 is filed by the ’Union of India  can- vassing  the  legality and correctness of  the  order  dated 5.9.90 passed by the High Court and praying for a  direction directing the High Court to decide the 755 maintainability  of  the  public interest  litigation  as  a preliminary  question,  and for the deletion of  the  second respondent. The permission for deletion was granted.     CrI.A. No. 311/91 is filed by the Union of India and the CBI  questioning  the second part of the order of  the  High Court  dated 19.12.90 namely taking suo moto cognizance  and issuing  notice calling upon the CBI and the State  to  show cause  as to why the proceedings. initiated on the  strength of the FIR be no quashed.     The  appellants in this appeal impleaded the High  Court through its Registrar as a respondent.     W.P.  No.  114/91 is filed  seeking  certain  directions relating  to Bofors matter and’ for quashing the later  part of the order dated 19.12.90 of the High Court.     Dismissing  CrI.A. Nos. 304-310/1991 and the Writ  Peti- tion No. 114/91 and allowing Crl. A. No. 311/91, this Court,     HELD:  1. Even if there are million questions of law  to be  deeply gone into and examined in a criminal case  regis- tered against specified accused persons, it is for them  and them  alone  to raise all such questions and  challenge  the proceedings  initiated against them at the appropriate  time before the proper forum and not for third parties under  the garb of public interest litigants. [766H-767A]     2.  The  appellant  in CrI.A. No. 306/91  has  no  locus standi to file the petition under Article 5 1-A as a  public interest litigant, to invoke the revisional jurisdiction  of the  High Court under Sections 397 read with section 401  of the* Code of Criminal Procedure challenging the correctness, legality or propriety of the order of the Special Judge  and to  invoke the extraordinary jurisdiction of the High  Court under  Section  482 of the Code of  Criminal  Procedure  for quashing the First Information Report and all other proceed- ings  arising therefrom on the plea of preventing the  abuse of the process of the Court. [767C-E]     3.  The  initiation of the present  proceedings  by  the public interest litigant under Article 51.A of the Constitu- tion of India cannot come within the true meaning and  scope of public interest litigation. [767F]     4. The appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) equally have no right of seek- 756 ing  their impleadment/intervention. For the  same  reasons,

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the  petitioner in W.P. (Crl.) No. 114/91, has no  right  to file the Writ Petition as a public interest litigant. 1767G]      5.  The  suo moto action of the High  Court  in  taking cognizance in exercise of the powers under Sections 397  and 401 read with Section 482 of the Code based on the convolut- ed  and strained reasoning and directing the office  of  the High  Court to register a case under the title Court on  its motion v. State and CBI cannot be sustained. [767H-768A]      6.  The directions of the High Court calling  upon  the CBI  and the State to show cause as to why  the  proceedings initiated  on the strength of the First  Information  Report dated 22.1.90 be not quashed, cannot be sustained. [768B]     7.  All  the proceedings initiated in pursuance  of  the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90-ACU-IV on the file of the Special Judge  including the  issuance of the Letter Rogatory/request as  they  stand now,  remain  unaffected and they can be proceeded  with  in accordance with law. [768D-E]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 304 of 1991.     From the Order dated 17.12. 1990 of the Delhi High Court in Criminal Misc. No. 2656 of 1990.     Anand Dev Giri, Solicitor General, Ram Jethmalani,  K.G. Bhagat,  P.S. Pottv, Prashant Bhushan, Jayant  Bhushan,  Ms. Deepa Bhushan, P.K. Dey, Ms. Lata Krishnamurti, M.N. Shroff, A.K. Khare, Ms. Kamini Jaiswal, P.K. Monohar, R. Sasiprabhu, Ms. A. Subhashini, A. Subba Rao, Ashok Bhan, Ms. Anil  Kati- yar,  P.N.  Bhan,  R.K. Dixit and A.M.  Khanwilkar  for  the appearing parties. Nalla Thampy Thera--petitioner-in-person. The following Order of the Court was delivered:     S.  RATNAVEL  PANDIAN, J. A brief resume  of  the  facts which has given rise to the above appeals and Writ  Petition would  be necesSary to appreciate the unsavorous  controver- sies  created by way of public interest litigations,  though 0we  have decided to give only our conclusions now  and  the detailed  reasons later in order to avoid any delay in  this matter for the reasons,, namely, (1) in the application  for direction  filed  by the Union of India  through  C.B.I.  on 12.7.91  it is submitted that "the Swiss  authorities  would remove the blocking order on 31.8.91 and the account holders would  withdraw  the large funds, running into  millions  of dollars (equivalent to crores of rupees)" and 757 prayed  that  the judgment may be pronounced by the  end  of August 1991 lest miscarriage of justice would be caused, and (2) that the learned’Additional SoliCitor General, Mr. Altar Ahmed  appearing on behalf of the Union of India and CBI  on 10.8.91 reaffirmed the above statement of the Union of India and  requested that the C.B.I. should be allowed to  proceed with  the  investigation without any interruption  or’  hin- drance  so that the investigation may be speeded up  thereby meaning  that  the wheels of investigation  already  started moving  on, should be permitted to be proceeded with  unfet- tered and untrammelled so that the valuable evidence may  be obtained  from  the  Swiss Bank  through  their  authorities without further loss of time, otherwise the account. in  the Swiss Bank- now frozen may be defrozen.     The Central Bureau of Investigation/Delhi police  Estab- lishment/Anti  Corruption Unit-IV; New Delhi registered  the First Information Report dated 22.1.90 relating to Crime No.

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RCI(A)/90  -ACU--IV under Section 120-B read  with  Sections 161,  162, 163, 164 and 165A of the Indian Penal  Code  read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the  Preven- tion of Corruption Act 1947 (herein referred to as P.C. Act) read  with sections 409,420,468 and 471 of the Indian  Penal Code against 14 accused of whom 3 are named, they being  (1) Shri  Martin  Ardbo, former President of  M/s  A.B.  Bofors, SWeden  (Accused No. 1); (2) Shri Chadha alias  Win  Chadha, s/o  Shri  Assa  Nand, President of  M/s  Anatronic  General Corporation/  Anatronic  General Companies Ltd.,  C/4,  Main Market,  Vasant  Vihar, New Delhi (Accused No. 3)  and  Shri G.P.  Hinduja,  New Zealand House, Hay market,  London  SW-1 (Accused  No. 7). The rest of the 11 accused are  stated  in general   as  Directors/employees/holders/beneficiaries   of account code and public servants of the Government of India. The core of the allegations is that these accused, named and unnamed, entered into a criminal conspiracy, obtained  ille- gal gratification in the form of money from BOFORS, a  Swed- ish  company  through the agent  firms/companies/persons  as motive or reward for such public servants who by corrupt  or illegal  means  or  by otherwise  dishonestly  using  their. official position as public servants caused pecuniary advan- tage to themselves, BOFORS, the agents and others in  award- ing  contracts to BOFORS for the supply of guns to the  Gov- ernment  of India and in the transaction also committed  the offences  of criminal breach of trust, cheating of Union  of India,’  forgery and using of forged documents etc.  It  ap- pears that the C.B.I. has commenced its investigation during the course of which it has recorded statements of  witnesses and  took  into their custody various  documents  and  files relating to this Bofors deal. While  it is so, the C.B.I. moved an application before  the Special 758 Judge,  namely, Shri R.C. Jain stating inter alia  that  the investigation  of  the case is to be conducted not  only  in India, but also in Switzerland, Sweden and other  countries, that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and  oral evidence relating to all aspects of the accounts in banks in Switzerland  to  which  remittances were made  by  M/s  A.B. Bofors  from  Sweden,  that in  particular,  the  authorised signatories and the beneficiaries of the said accounts  have to be traced by such investigation as they are, in fact, the ultimate  beneficiaries of the payments’1 made by  M/s  A.B. Bofors  and  that under the procedure followed by  banks  in Switzerland, an authorised signatory can operate an  account for the benefit of certain other persons regarding whom  the authorised  signatory has to submit certain declarations  to the concerned bank and, therefore, it is very essential  for the investigation of this case that the documentary and oral evidence should be collected regarding this’ as well as  the other  aspects of the bank accounts in Switzerland.  In  the said application after referring to the exchange of  letters dated  20.2.89 between the Government of India and  Switzer- land for mutual assistance agreeing that the Authorities  of both  the countries shall provide to each other  the  widest measure  for  assistance in the  investigation  of  criminal matters, it has been stated that the competent authority  to ask  for assistance in India and abroad is the  Court/Tribu- nal/Judge or Magistrate exercising jurisdiction. The  Direc- tor of the C.B.I. sent a request dated 23.1.1990 and supple- mented  by another request dated 26.1.1990 to the  concerned authorities  in  Switzerland for  freezing/blocking  certain bank accounts relevant to this case and the Federal  Depart-

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ment  of Justice and Police, Switzerland moved Shri  Parrau- din, Judge of Geneva and the concerned Judge ’of Zurich who, on  being prima facie convinced of dual criminality and  the need  for investigation in Switzerland, froze  the  relevant bank  accounts in this regard on 26.1. 1990 as intimated  by the  Federal  Department of Justice and Police  through  the Embassy of India in Switzerland and that as per this  infor- mation, the relevant accounts in the bank have been  blocked upto 28.2.1990 and that request for judicial assistance from Switzerland  in  this matter, therefore, should be  made  by 28.2.1990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts and that .the  Federal Department of Justice and Police at Berne which  corresponds to the Ministries of Law and Home, Government of India, have assured  that the Swiss authorities would render  assistance in  the investigation in Switzerland in accordance with  the mutual assistance agreement dated 20.2.1989 only on  receipt of a Letter Rogatory from the competent judicial authorities in India. On  the  above pleadings, the C.B.I. requested  the  Special Judge 759 to  send a Letter Rogatory/request. to Switzerland  urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence  would remain uncollected and the cause of  justice would  be frustrated. The Special Judge after  hearing  Shri Arun Jaitley, the then Additional Solicitor General of India and  Shri  K.N. Sharma, Deputy Legal  Adviser,  CBI  andShri Baljit  Singh,  Senior Public Prosecutor by  its  considered order dated 5.2.1990 allowed the application of the  C.B.I., the relevant portion of which reads thus:               "In the result, the application of the CBI  is               allowed  to the extent that a request to  con-               duct  the necessary investigation and to  col-               lect necessary evidence which can be collected               in  Switzerland and to the extent directed  in               this  order  shall be made  to  the  Competent               Judicial  Authorities of the Confederation  of               Switzerland  through the Ministry of  External               Affairs,  ’Government of India subject to  the               filing  of  the  requisite/proper  undertaking               required  by the Swiss Law and  assurance  for               reciprocity."     The Special Judge also directed certain documents to  be sent’ along with his letter of request, such as the copy  of the  FIR  dated 22.1.90, mutual assistance  agreement  dated 20.2.89  etc.  etc. The Court finally made  a  note  reading thus:               "Needless to mention that no observation  made               in  this order shall tantamount to  expression               of opinion at any subsequent stage of  enquiry               or trial."     When  the matter stood thus, Shri V.S. Aggarwal  on  the strength of the notification issued by the Administrator  of the  Union  Territory of Delhi assumed charge as  a  Special Judge  inplaCe of Shri R.C. Jain. Before Shri Aggarwal,  the Special  Judge, Shri Harinder Singh Chowdhary,  an  Advocate filed  a Public Interest Litigation by filing Criminal  Mis- cellaneous Case No. 12/90 under Article 51-A of the  Consti- tution  of India seeking the following prayers which we  are reproducing hereunder:               "In  the  premises  your  petitioners   humbly               request that in order to maintain the dignity,               prestige and the fair name of the country  and

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             the ideals enshrined in the Constitution  that               no  rogatory  letter be issued on  the  formal               request  of  the CBI  unless  the  allegations               against named persons are               760               established to the satisfaction of this  Hon’               ble Court:’                         It  is  further  requested  that  no               request for Rogatory or freezing bank  account               be  made to Swiss Govt. unless  the  concerned               persons are noticed and heard on the subject:                         It  is  further requested  that  the               petitioner  may  be permitted to  join  during               inquiry  before  this  Hon’ble  Court  in  the               capacity of public interest litigant.                         It is further requested that inquiry               u/s  340  Cr.P.C.  be held  to  determine  the               alleged  offence committed by various  persons               and  till then all proceedings of Rogatory  be               stopped.",     The  Special  Judge, namely, Shri V.S. Aggarwal  by  his considered  judgment dated 18.8.1990 dismissed the  petition holding  "this  request  of the learned  counsel  cannot  be accepted."  Finally,  the learned Judge made  the  following note:               "Put  up  on 30.9. 1990 for arguments  on  the               question  as to whether any action under  Sec-               tion 340 of the Code of Criminal Procedure  is               to  be  initiated or not. No  opinion  on  the               merits of the main case is being expressed."     The  Special Judge then issued (’1) Note  of  Compliance and (2) Amended letter rogatory on 22.8.90.     Shri  Harinder  Singh  Chowdhary,  the  public  interest litigant  on being aggrieved by the order dated  18.8.90  of the Special Judge filed a criminal revision before the  High Court of Delhi under Sections 397/ 482 of the Code of Crimi- nal Procedure and raised several questions of law  challeng- ing the legality and validity of the impugned order and made the following prayers:               (a)   to   quash  the  entire  FIR   No.   RCI               (A)90/ACU-IV  dated 22.1.90 and criminal  pro-               ceedings covered by the same.               (b)  or remand the case to the  Special  Judge               permitting  the petitioner to argue  his  case               before  the  lower court and also  direct  the               court below to decide the petition on merits.               761               (c)  direct  the  court that  no  request  for               rogatory letters be. made to Swiss Government,               till  the petitioner is heard on his  applica-               tion.               (d)the  petitioner  may be permitted  to  join               during  the inquiry to determine the  question               of dual criminality before the learned Special               Judge  in  the  capacity  of  public  interest               litigant, and also direct the learned  Special               Judge to decide the question of dual criminal-               ity before issuing the letter rogatory.               (e)  direct the learned Special Judge  not  to               issue  any  ro.gatory  letter  on  the  formal               request  of  the CBI  unless  the  allegations               against  named persons is established  to  the               satisfaction  of the Special Judge  by  cogent               evidence.     This revision’ petition has been registered as  Criminal

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Miscellaneous  (Main)  NO. 1821 of 1990 on the file  of  the High  Court of Delhi. During the hearing of the  above  case before the High Court, several applications seeking implead- ment/intervention were filed in the proceedings among  which one was filed by Mr. Prashant Bhushan, another by Mr. N. Ram and some more by various political parties.     Mr. Justice M.K. Chawla who heard the Crl. Misc.  (M)No. 1821/90  passed  an order dated 3.12.90  directing  all  the applications  for  intervention  to be kept  on  record  and observed.  "The interveners will be heard only if the  Court feels  the necessity of hearing further arguments after  the conclusions  of the arguments of ASG appearing for  the  GOI and  the CBI". Thereafter on 6th and 7th December 1990,  Mr. Justice  M.K. Chawla heard the arguments advanced on  behalf of  the CBI as well of the Union of India. While it was  so, the  Janata Dal etc. approached this Court by filing a  Spe- cial  Leave Peti.tion (Criminal) No. 2320 of 1990  and  this Court  on  10.12.90  upon being mentioned  and  hearing  the learned counsel for the parties, passed the following order:               "We find on 3.12.90 the learned Judge indicat-               ed in his order that several applications  had               been  filed by different people  for  implead-               ment/intervention  in the proceedings and  the               learned Judge observed that these applications               would  be heard and if necessary arguments  on               ’behalf  of the intervener could be  permitted               after  other counsel are heard. Grievance  has               been made that these applications               762               have  not  been formally disposed  of  by  the               Court.  We  are of the view that  the  learned               Judge should dispose of these applications  by               a judicial order before the matter is reserved               for judgment and in case the applications  are               not accepted, judgment should not be delivered               for  at  least 2 days after such an  order  on               these  writ ,petitions is made to enable  them               to move this Court."     It appears that in compliance of the above directions of this Court, Mr. Justice Chawla heard Mr. Ram Jethmalani  who appeared on behalf of Janata Dal and Mr. Prashant Bhushan on 11.12.90.  The  learned counsel, Mr. Jethmalani  orally  re- quested Justice Chawla to recuse himself from the case which request  was  rejected by the learned Judge.  Thereafter,  a petition  for recusation was filed which was also  dismissed on 17.12.90. After hearing the learned counsel for Mr.  H.S. Chowdhary  as well for the interveners, the final order  was passed  by  Mr.  Justice Chawla on  19.12.90,  the  relevant portion of which reads thus:               "In  my  opinion, the case of  the  petitioner               does  not fail within the ambit and  scope  of               the  law laid by the Supreme Court in  Bandhua               Mukti  Morcha  (supra). So, I  hold  that  the               petitioner  has  no locus standi to  file  the               present  revision  petition and  is  thus  not               maintainable on his behalf. The same is hereby               dismissed.               As  a  consequent  of  the  dismissal  of  the               present petition, holding that the  petitioner               has  no locus standi, the applicants  have  no               right  to be impleaded and their  impleadment/               intervention applications are also rejected.               So, I suo moto take cognizance while  exercis-               ing my powers under Sections 397 and 401  read               with  Section 482 of the Code, and direct  the

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             office  to register the case under the  title,               Court on its own motion v. State and CBI.               Consequently,  I  call upon the  CBI  and  the               State to show cause as to why the  proceedings               initiated  on  the  filing  of  FIR  No.   RCI               (A)/90/ACU-IV  dated  22.1.90 pending  in  the               Court  of Shri V.S. Aggarwal,  Special  Judge,               Delhi be not quashed.               763     The sum and substance of the above order is that in  the opinion  of Mr. Justice Chawla, the petitioner  Sh..Harindcr Singh Chowdhary has no locus standi to maintain the petition and consequently interveners also have no right to seek  for impleadment  or  intervention  and that  the  learned  Judge having held so, took suo rnoto cognizance of the matter  for the reasons assigned in his order and directed issue of show cause notice to the CBI and the State (Union of India) as to why  the  proceedings initiated on the strenth  of  the  FIR dated  22.1.90  pending  before the  Special  Judge  be  not quashed.  It was at this stage, all these  criminal  appeals and  the writ petition have been filed in this  Court.  This Court on 20.12.90 in Criminal Appeal No. 304/91 (arising out of SLP Crl. No. 2476/90 filed by the Janata Dal) passed  the following order granting interim stay: "  ......  In the meantime, the reasons leading to registra- tion  of  the suo moto proceedings would not  be  operative. There shall be interim stay of proceedings including hearing before the High Court."     In order to understand the scope of each of the criminal appeals and the prayer made therein, we are presently giving a brief note of the appeals and the writ petition. Criminal Appeal No. 304/91     This appeal. is preferred by the Janata Dal against  the order dated 17.12.90 passed by the High Court rejecting  its application  Crl. (M) No. 2656/90 in Crl. Misc. (M) No.  182 1/90  filed  before the High Court  requesting  the  learned Judge to recuse himself from the proceedings. Criminal Appeal No. 305/91     This appeal is filed by the Janata Dal against the order of  the High Court dated"19.12.90 rejecting the  application for  impleadment of the appellant and other intervences  and also issuing suo moto notice to the State and the CBI. Criminal Appeal No. 306/91     This appeal is directed by Mr. Harinder Singh  Chowdhary (the  original  petitioner  who filed  the  public  interest litigation  before the Special Judge) challenging the  first part of the order of the High Court 764 dated 19.12.90 dismissing his petition on the ground that he has no locus standi to file the petition. Criminal Appeal No. 307/91     This  appeal is preferred by the Janata Dal  questioning the correctness of the earlier order dated 3.12.90 passed by the  High Court refusing’ to allow the appellant’s  applica- tion for impleadment/ intervention. Criminal Appeal No. 308/91     The Communist Party of India (Marxist) has directed this appeal  against  the order of the High Court  dated  3.12.90 refusing to allow its application for  impleadment/interven- tion. Criminal Appeal No. 309/91     This appeal is preferred by Indian Congress  (Socialist) against  the  main order of the High  Court  dated  19.12.90 dismissing his application for impleadment and taking up suo moto      cognizance     for     quaShing      the      FIR.

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- ,Criminal Appeal No. 310/91     This  appeal is filed by the Union of  India  canvassing the  legality  and  correctness of the  order  dated  5.9.90 passed by the High Court and praying for a direction direct- ing  the  High Court to decide the  maintainability  of  the public  interest  litigation as a preliminary  question.  In that appeal, the learned Solicitor General requested for the deletion  of  the second respondent, Mortin’  Ardbo,  former President,  M/O A.B. Bofors, Sweden (who is only a  proforma respondent)  from the array of parties and  accordingly  the permission  was  granted by this Court’s order  dated  13.3. 199I. Criminal Appeal No. 311/91     This  appeal’is filed by the Union of India and the  CBI questioning  the  said  second  part  of  the  order   dated 19.12.90,  namely  taking suo’ moro cognizance  and  issuing notice  calling upon the CBI and the State to show cause  as to why the proceedings initiated on the strength of the  FIR be not quashed. It may be noted that the appellants in  this appeal  have impleaded the High Court through its  Registrar as a respondent. 765 Writ Petition No. 114/91.     This petition is filed by one Dr. P. Nalla Thampy  Thera seeking certain directions relating to Bofors matter and for quashing the later  part of the order dated 19.12.90 of the High Court.     Mr.  Anand Dev Giri, the learned Solicitor  General  as- sisted by M/s Anil Katyar and Ashok Bhan and thereafter  the present Additional Solicitor General Mr. Altar Ahmed, Mr. A. Subba Rao and Mr. A.M. Khanwilkar, Advs. appearing on behalf of the Union of India as well as the CBI; Mr. Ram Jethmalani and Mr. Shanti Bhushan, both learned senior counsel assisted by  Mr. Prashant Bhushan appearing in Criminal  Appeal  Nos. 304,305  and 307 of 1991 and Mr. K.G. Bhaghat,  the  learned senior counsel appearing in Criminal Appeal Nos. 306 and 305 of 1991 on behalf of Mr. H.S. Chowdhary assisted by Mr. M.N. Shroff, besides a battery of lawyers advanced their  respec- tive arguments raising manifold questions of law with refer- ence  to  the  various  provisions of  the  Constitution  of India,  Indian  Penal  Code,  Code  of  Criminal   Procedure and.other Acts and the Memorandum of Under standing etc. for a  very considerable length of time totally running for   34 full  days and laid stress upon a host of decisions in  sup- port of their  respective cases. The introverted and  extro- verted  rhetorical  submis-  sions made by all  the  learned counsel  were  punctuated sometimes with   inflammatory  re- marks, occasionally with discordant and embittered notes  as well as esoteric statements, intermittently with  political, over  tones,  but at the same time  with  admirable  ability exhibiting  their  profound knowledge in  criminal  law.  In fact,  each  one of them was trying to outwit  and  score  a march over the other. In this connection, it may be  pointed out that the present Additional Solicitor General. Mr. A|tar Ahmed has declared unambiguously and p, erspicuously that he is in full agreement with the argument of the former Solici- tor General Mr. A.D. Giri and that his present  articulation serves  only as supplement to that of the  former  Solicitor General.  Though the entire submissions made by  the  former Solicitor  General  are not being extracted  in  this  short order, we feel that it would be appropriate to briefly refer to  the  core of the submissions of  the  learned  Solicitor General, Mr. A.D. Giri. The learned Solicitor General stren- uously urged that Mr. H.S. Chowdhary claiming to be a public

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interest litigant has filed the original petition before the Special  Judge as a proxy of the accused who are all  behind the curtain and who by this perilous proceeding are   trying to  evade the dragnet of the investigation and of whom  even the  named accused are maintaining stoic silence all through unmindful of  all the proceedings till date and that the CBI though subjected to 766 increasing uncharitable and unwarranted criticism and  vili- fication and also scurrilous attack, with remarkable  resil- ience  is relentlessly  attempting to collect all  available materials  by  unearthing  the wider   conspiracy  and  well knitted illegal transaction within its legally permis  sible limits. It is pertinent to mention that Mr. Altar Ahmed  the learned Additional Solicitor General appearing on behalf  of the Union  of India and CBI after Mr. A.D. Giri (the  former Solicitor  General) has relinquished his office,  reinforced the  same  arguments  and further pleaded  that  the  matter should be disposed of before the end of August 199 1 for the reasons  stated supra so that the CBI may effectively  carry on  with the investigation. However, we are not  at  present giving the details of the points urged except observing that the ques-tion as to whether the laws are so petrified as  to unable to respond to the challenges made will be dealt  with in  detail in our main judgment. As mentioned albeit we,  in order to avoid further delay in these matters, are  inclined to  give  only our conclusions, the reasons  in  support  of which will follow in our detailed judgment at a later stage.     It is most relevant to note that none of the  appellants before  this Court save the Union of India and CBI  is  con- nected  in  any  way with the  present  criminal  proceeding initiated  on the strength of the First  Information  Report which  is now sought to be quashed by Mr..  H.S.  Chowdhary. Although  in  the  F.I.R., the names of  three  accused  are specifically mentioned none of them has been impleaded as  a respondent to these proceedings by anyone of the appellants. Even Mr. Martin Ardbo, former President of M/s A.B.  Bofors, who  was  impleaded  as a proforma  respondent  in  Criminal Appeal No. 310/91 has been given up by the Solicitor  Gener- al.  Therefore,  under these circumstances, one  should  not lose  sight of the significant fact that in case this  Court pronounces  its final opinion or conclusions on the   issues other  than the general issues raised by the  appellants  as public  interest litigants, without hearing the  really  af- fected  person/persons such opinion or conclusions  may,  in future,  in case the investigation  culminates in  filing  a final  report become detrimental and prejudical to  the  in- dicted  accused  persons who would be  totally  deprived  of challenging such opinion or conclusions of this ’apex Court, even  if they happen to come in possession of some  valuable material  to  canvass  the correctness of  such  opinion  or conclusions  and  consequently their vested legal  right  to defend  their  case  in their own way  would  be  completely nullified by the verdict now sought to be obtained by  these public interest litigants. Even if there are million questions of law to be deeply gone into 767 and  examined in a criminal. case of this nature  registered against  specified accused persons, it is for them and  them alone to raise all such questions and challenge the proceed- ings  initiated against them at the appropriate time  before the proper forum and not for third parties under the garb of public interest litigants. ’     We,  in the above background of the case, after  bestow-

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ing-our  anxious and painstaking consideration  and  careful thought to all aspects of the case and deeply examining  the rival  contentions  of  the parties  both  collectively  and individually give our conclusions as follows: 1.  Mr. H.S. Chowdhary has no locus standi (a) to  file  the petition  under Article 51-A as a public  interest  litigant praying  that  no letter rogatory/request be issued  at  the request  of the CBI and he be permitted to join the  inquiry before  the Special Court which on 5.2.90 directed  issuance of letter rogatory/request to the Competent Judicial Author- ities  of the .Confederation of Switzerland; (b)  to  invoke the revisional jurisdiction of the High Court under Sections 0397  read with 401 of the Code of Criminal Procedure  chal- lenging the correctness, legality or propriety of the  order dated  18.8.90  of the Special Judge and (c) to  invoke  the extraordinary  jurisdiction of the High Court under  Section 482 of the Code of Criminal Procedure for quashing the First Information Report .dated 22.1.90 and all other  proceedings arising therefrom on the plea of preventing the abuse of the process of the Court. 2. In our considered opinion, the initiation of the  present proceedings by Mr. H.S. Chowdhary under Article 51-A of  the Constitution  of India cannot come within the  true  meaning and scope of public interest litigation. 3.  Consequent upon the above conclusions (1) and  (2),  the appellants namely, Janata Dal, Communist Party of India (Marxist)  and  Indian Congress (Socialist) who  are  before this  Court equally have no right of seeking their  implead- ment/  intervention.  For  the same reasons,  Dr.  P.  Nalla Thampy  Thera  also has no right to file the  Writ  Petition (Crl.) No. 114 of 1991 as a public interest litigant. 4. Having regard to the facts and circumstances of the case, the  suo  moto action of Mr. Justice M.K. Chawla  in  taking cogni- 768 zance  in exercise of the powers under Sections 397 and  401 read  with SeCtion 482 of the Code based on  the  convoluted and strained reasoning and directing the office of the  High Court  of Delhi to register a case under the title Court  on its motion v. State and CBI cannot be sustained. 5.  Consequent upon the above conclusion No. (.4),  we  hold that the directions of Mr. Justice M.K. Chawla calling  upon the  CBI and the State to show cause as to why the  proceed- ings  initiated  on the strength of  the  First  Information Report dated 22.1.90 be not quashed, cannot be sustained.     In  the  result, we agree with’ the first  part  of  the Order dated 19.12.90 of Mr. Justice M.K. Chawla holding that Mr.  H.S.  Chowdhary and other intervening parties  have  no locus standi. We, however, set aside the second part of  the impugned order whereby he has taken suo moto cognizance  and issued show cause notice to the State and CBI and according- ly the Show cause notice issued by him is quashed.     In  view of the above conclusions, all  the  proceedings initiated in pursuance of the First Information Report dated 22.1.90  relating to Crime No. RCI(A)/90-ACU-IV on the  file of  the Special Judge, Delhi including the issuance  of  the letter rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law. In Summation:     Criminal  Appeal  Nos. 304,305,306, 307,308 and  309  of 1991 are dismissed. Criminal Appeal No. 310 of 1991 filed by the  Union of India against .the order dated 5.9.90  of  the High  Court is dismissed in view of the fact that  the  said order  does not survive for consideration on the passing  of the final order dated 19.12.90. The Writ Petition No. 14  of

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1991 is also dismissed.     Criminal Appeal No. 311 of 1991 filed by Union of  India and CBI is allowed for the reasons stated above. V.P.R.                      Crl. A. Nos. 304-310/1991 and                             W.P. No. 114/91 dismissed                             Crl. A. No. 311/91 allowed. 769