1993 PLP 285 (SCMR)

"Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth‑y‑Gest, from `fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion."

83. Thus, it is seen from the decision in Menaka Gandhi that there are certain exceptional circumstances and situations where under the application of the rule of audi alteram partem is not attracted.

84. Paul Jackson in Natural Justice at pages 112 and 113 observed that: " It was seen that anybody making a decision affecting party's right or legitimate expectation must observe the rules of natural justice. Conversely a decision which does not affect rights, because for example, it is a prelude to taking further proceedings in the course of which the party concerned will have an opportunity to be heard will, very likely, not itself be subject to the requirements of natural justice, or only in a modification form. A fortiori, the decision by, for example, the responsible Minister or official to initiate the procedure necessary to reach a preliminary conclusion or to examine the existence of a prima facie case can be taken giving the person affected a hearing ...."

85. See also (1) Wiseman v. Borneman, 1971 AC 297, (2) Pearlberg v. Varty (Inspector of Taxes) (1972) 1 WLR 534; (3) Regina v. Barnet and Camden Rent Tribunal, Ex. p. Frey Investments Ltd. (1972) 2 QBD 342; and (4) Herring v. Templeman (1973) 3 All ER 569.

86. In R. v. Peterborough Justice, Ex. p. Hicks (1977)1 WLR 1371, it has been held that search‑warrants under the Forgery Act, 1913, section 13 may issue without the party affected being heard.

87. A Division Bench of the Allahabad High Court in Indian Explosive Ltd. (Fertiliser Division) Panki, Kanpur v. State of Uttar Pradesh (1981) 2 Lab. IJ 159: (1981 Lab. IC NOC 148) after referring to the decision in Regina (1972) 2 QB 342) (supra) and Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch. Div. 201(202) said thus: "Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases."

88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full‑fledged enquiry follows is a relevant and indeed a significant‑‑‑factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.

89. Applying the above principle, it may he held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under section 173 (2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.

90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

91. In State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335 at 359: (AIR 1992 SC 604 at p. 616), this Court to which both of us (Ratanavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khawaja Nazir Ahmad, AIR 1945 PC 18 and the decision of this Court in State of Bihar v. JA.C. Saldanha[It seems the citation should be AIR 1980 SC 326 and not (1967) 3 SCR 668] (1967) 3 SCR 668 has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation."

92. Moreso, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under section 173 (2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under section 202 of the Code the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.

93. It may be noted that under section 227 of the Code dealing with discharge of an accused in a trial before a Court of Session under Chapter XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under section 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted therewith but also the submissions of the accused and the prosecution made under section

227. Similarly, under section 239 falling under Chapter XIX dealing with the trial of warrant cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and discharge the accused for the reasons to be recorded in case the Magistrate 'considers the charge against the accused to the groundless. Section 240 of the Code dealing with framing of charge also reaffirms the consideration of the examination of an accused under section 239 before the charge is framed.

94. Under section 235 (2), in a trial before a Court of Session and under section 248(2) of the trail of warrant cases, the accused as a matter of right, is to be given am opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand are silent in this respect.

95. It is relevant and significant to note that a police officer, in charge of t a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.

96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure‑‑‑such as section 50 where under the person arrested is to be informed of the grounds of his arrest and of his right of bail and under section 57 dealing with persons arrested not to be detained for more than 24 hours and under section 167 dealing with the procedure if the investigation cannot be completed in 24 hours‑‑‑which are all in conformity with the `Right to Life' and `Personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.

97. Incidentally, it may be stated that there is no question of attachment of money of the respondent or any of the accused, named or unnamed, standing to the credit of the account‑holders is Swiss Banks linked with Bofors mystery but it 'was only freezing of the accounts as per the request made by the Director, CBI by his letter dated 23rd January 1990 and followed by another letter dated 26th January 1990 and thereafter pursuant to the request through letters rogatory for judicial assistance in Switzerland. But for the request made by the letter rogatory, the Swiss law obliges withdrawal of all the instructions to block the account. Therefore, we are of the view that the detailed discussion of the High Court with reference to the Criminal Law Amendment Ordinance of 1944 though is not warranted in this regard. However, we will deal with Ordinance with relevant provisions in the later part of this judgment.

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self‑defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

99. Reverting to the facts, it is not the case of the respondent that he is having any account in Swiss banks connected with Bofors mystery and that the account is frozen to his prejudice. When the respondent himself has not come forward with any specific case stating as to what was the quantum of the amount standing to his credit in Swiss banks and in what manner he is now aggrieved by the letter rogatory and in what way he is deprived of his properties, it is incomprehensible as to how the High Court has come to the conclusion that the respondent is deprived of his property. Similarly, any one or the other named or unnamed accused or any third party, not named in the F.I.R., has not come forward with a complaint of grievance on account of the freezing of the accounts.

100. It will be relevant in this context to refer to a decision of the Constitution Bench of this Court in M.P. Sharma v. Satish Chandra, 1954 SCR 1077: (AIR 1954 SC 300) wherein it has been held that "a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law and that a search and seizure of a document under the provisions of sections 94 and 96 of the Code of Criminal Procedure (old) is not a compelled production thereof within the meaning of Article 20 (3) and hence does not offend the said Article.

101. Shri Rsjhinder Singh, learned senior counsel appearing for the respondent made his submission that the Special Judge had acted unilaterally in issuing the letter rogatory and without having a full dress enquiry. The learned counsel after referring to section 91 of the Code corresponding to section 94 of the old Code and to sections 4 and 5 of the Bankers' Books Evidence Act, 1891 and relying on a decision in Central Bank of India Ltd. P.D. Shamdasani, AIR 1938 Bom. 33 at 35 wherein it has been held that a Magistrate making an order under section 94 of the Code (old) for production of documents does not thereby commit himself to the proposition that inspection of all the documents, the production of which is ordered must necessarily follow and the party producing the documents is not precluded from objecting to their subsequent inspection, seriously contended that the banks should have been given prior notice and heard. According to him, the banks, in such a circumstance, probably might have objected to the production of the bank accounts.

102. We are unable to see any force in the above submission of Shri Rajinder Singh because, firstly there is no request for production of the documents; secondly there is no prayer in the letter rogatory for production of the entire account books and, thirdly till date no objection is taken by the Swiss Banks. It is pertinent to note that the High Court has not found fault with the validity of the letter rogatory on the ground of alleged production of bank accounts or the failure of any notice to the Swiss Banks.

103. It has been contended on behalf of the respondent that the Special Judge has exhibited a partiality towards the respondent by not giving any opportunity of being heard when the prosecution was given a right of audience before issuing letter rogatory.

104. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by the CBI is only for process of judicial assistance from the competent judicial authorities is the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition.

105. For the aforementioned discussion, we hold that the facts and circumstances of the case do not attract the audi alteram partem rule requiring a prior notice and an opportunity of being heard to the respondent and that the respondent has never been prejudiced and deprived of his right to property due to the alleged non‑compliance of the principle of audi alteram partem: Whether the issue of letter rogatory is vitiated by non‑application of mind by the Special Judge?

106. The High Court for drawing its conclusion that the issue of letter rogatory suffers from non‑application of mind and the said letter was issued in a very casual and mechanical manner prejudicial to the respondent has given the following reasons: (a) By the letter rogatory, not only the information regarding assets owned/possessed by many persons (besides the named accused) including certain Indian citizens who are neither named in the First Information Report nor is there any allegation against them has been asked for but also the Swiss authorities are requested to freeze the bank accounts of all those persons. (b) The Special Judge did not apply his mind to all the points raised by the Cantonal Court for rectification of the letter rogatory issued on 5/7th February, 1990. (c) The Special Judge has not at all applied his mind before issuing the amended letter rogatory to the objections raised by the Cantonal Court of Geneva with regard to the pasting of a piece of paper containing certain names which were earlier mentioned in the letter dated 26th January, 1990 given by Mr. M.K. Madhavan, CBI to the Federal Department of Justice and Police. The non‑reference to the earlier letter of the CBI in the letter rogatory issued by Special Judge on 5/7th February, 1990 and also its absence as one of the annexures to the letter rogatory show that the letter rogatory issued by the Special Judge had been tampered with. (d) The CBI in its note of compliance clarifying the observations of the order of 3rd July, 1990 of the Criminal Court of Geneva not only referred to the Criminal Law Amendment Ordinance, 1944 which empowers the District Judge to pass ad interim orders attaching the money or other property but also enclosed:, copy of the same for the purpose of showing the power of the Criminal Court in India. Under section 4 (1) of the said Ordinance a District Judge is empowered to pass an ad interim order attaching the money or other property alleged to have been procured by means of any offence‑but in terms of section 4 (2) of the said Ordinance the District Judge was required to issue a notice to the person whose money or other property is being attached; accompanied by copies of the order, the application and affidavit and to the evidence if any recorded calling upon the person to show cause why the order ' of attachment should not be made absolute. (e) When the CBI itself has relied upon the provisions of the above Ordinance, the Special Judge ought. to have complied with the mandate of section 4 (2) by issuing a show‑cause notice to the respondent.

107. Though in the writ petition, this ground has not been specifically taken in the manner in which the learned Judges have framed the question, however, under ground No. (Z), it is pleaded: "That the Special Judge ought to have conducted a preliminary enquiry by trying to look into the entire materials placed before him by thoroughly investigating before action pursuant to the First Information Report, which in the respectful submission of the petitioner, the learned Judge failed to do so, thus causing miscarriage of justice to the petitioner ....".

108. From the judgment, it is seen that certain documents which are said to have been claimed as secret and confidential documents by the ASG are taken into consideration for reaching the conclusion that there was non‑application of mind.

109. Then the puzzling question that comes up for consideration is as to how all the correspondence, namely, the copy of the order of the Canton Court of Geneva and the notice of compliance of the CBI came to the knowledge of the High Court especially when these documents were not available with the respondent and not produced by the Court. The clue for answering the above question is found in the judgment itself which reads thus: "We may point out here that pursuant to our directions copies of the original letters rogatory alongwith their enclosures issued on 7th February, 1990 and 22nd August, 1990 have been made available to us:'

110. In yet another part of the impugned judgment, it is stated as follows: "From records, we, however, find that through letter rogatory information regarding assets owned/possessed by many persons (besides the named accused) including certain Indian citizens, who are neither named accused in the F.I.R., nor there is any allegation against them in the F.I.R. has been asked for and even the Swiss Authorities were requested to freeze their bank accounts."

111. In this connection, the additional grounds filed by the appellants may be taken note of.

112. Ground No. `N' of the additional grounds reads thus: "It is submitted that the entire original record was offered to the High Court in confidence from which the High Court has even quoted "

113. Ground No. `O' of the additional grounds, the appellants have stated thus: " High Court has recorded findings beyond the scope of arguments urged the Bar on behalf of respondent herein and the pleadings on record."

114. During the arguments before this Court, the Additional Solicitor General reaffirms that certain secret and confidential documents at the instance of the Court namely the letters of the CBI to the Federal Department of Justice and Police, Berne, Switzerland dated 23rd and 26th January, 1990, the order dated 3rd July 1990 of the Cantonal Court, the note of compliance of the CBI, the letters of the Chief of Army Staff, the minutes of the meeting of the Negotiating Committee etc. were handed over in a sealed cover with an oral request not to reveal the documents to the other side or to refer them in the judgment since otherwise the Government would be claiming privilege on the said documents. In other words, oral privilege was claimed under section 124 of the Evidence Act. The Additional Solicitor‑General continues to state that the High Court unfortunately despite the oral request made on‑, behalf of the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor‑General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has r6icd upon those documents for quashing the letters rogatory on the ground of non‑application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor‑General. No specific objection has been. raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment.

115. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portions of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafer has conveniently made use of those documents for the end‑product. 116, Be that as it may, after having gone through the orders of the Special Court dated 5th February, 1990 and 21st August, 1990 and all the connected records placed before the Court, the Special Judge cannot be found fault to have issued letter rogatory casually or mechanically but only after applying his mind and on being satisfied that the F.I.R, constitutes a cognizable offence or offences and that a competent officer under the Code of Criminal Procedure has made a request for issuance of letter rogatory.

117. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non‑application of mind by the Special Judge.

118. In this connection, we would like to refer to a decision of the Bombay High Court in Kekool J. Maneckji v. Union of India, 1980 Cr. I_J

258. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Government of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the Investigating Officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandukar, J. (as he then was) while dismissing the writ petition observed (para. 12 of Cr. I.J): "Now, assuming for a moment that the order of the learned Magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency... Once the documents are in the possession of the investigating agency, that they are received by following a procedure. which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law."

119. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus (1980 Cr. I.J 258,, para. 21): "This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis‑a‑vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can callenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petitioner cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under section 397 or 482 of the Code of Criminal Procedure as has been done in this case .... That is why, even assuming that the provisions of section 91, Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner‑accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters, therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds. The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner,"

120. For all the aforesaid reasons we unhesitatingly set aside the order of the High Court quashing the letter rogatory dated 5/7th February, 1990 and the rectified letter rogatory dated 21/22nd August, 1990 issued in pursuance of the orders passed by the Special Judge. The respondent who is a named accused in the F.I.R. has no locus standi at this stage to question the manner in which the evidence is to be collected. However, it is open for the respondent to challenge the admissibility and reliability of the evidence only at the stage of trial in case the investigation ends up in filing a final report under section 173 of the Code indicating that an offence appears to have been committed. Does the First Information Report prima facie disclose any offence against the respondent W N Chadha and is there any material prima facie connecting the respondent with the dealings of Bofors relating to the purchase of guns?

121. For answering the first part of the above question the High Court has made a lengthy discussion with reference to the various documents and examined them under various heads‑‑‑namely: (a) Whether the decision for entering into and finalising the contract was followed by the well‑established procedure? (b) Whether the contract finally entered is perfect and bona fide? (c) Whether the allegations made in the F.I.R. do constitute an offence/offences against the respondent W.N. Chadha? and (d) Whether the non‑tracing of the names of the unnamed public servants or at least any one of them generally mentioned in the F.I.R. is entirely due to indolence or remissness on the part of CBI?

122. In dealing with the question of the procedure followed by the Government of India in entering into the contract with Bofors the High Court has traced the history commencing from the proposal for procurement of 155 mm guns along with certain equipments and ammunition approved in April, 1984 and ending with its finalisation on 24th March, 1986, mostly relying on some original records inclusive of certain confidential documents which, according to the Additional Solicitor‑General, were made available to the Court at its instance. The fact that original documents were made use of and relied upon by‑ the High Court is strengthened by the following observations made in the impugned judgment itself: "The urgency of acquisition of 155 mm gun is evident from the letter dated 29th November, 1985 written by the then Chief of Army Staff to the then Raksha Rajya Mantri (A), which we have perused from the original record."

123. A scrutiny of the judgment demonstrably shows that the High Court has gone through some original records which in the very nature of them could not have been made available by the respondent. As indicated above, the Additional Solicitor‑General states that the original documents were produced by the Government in a sealed cover for the Court's perusal with an oral request not to reveal the documents to the other side and to make use of them in the judgment, besides orally claiming privilege. However, the High Court has not only referred to those documents but also very much retied upon them. In fact the High Court has reproduced a relevant portion of the letter dated 29‑11‑1985 of the then Chief of Army Staff and also a portion of the minutes of the meeting of the Negotiating Committee recorded on the 4th March, 1986. It was only on the basis of the above documents the High Court drew its final conclusion regarding the procedure followed from the very proposal of the contract till its finalisation. The relevant conclusion reads thus: "From the facts mentioned hereinabove, it is clear that the decision regarding finalisation of the contract with Bofors was not taken by one or two persons, it was based on the recommendations of the Negotiating Committee of five Secretaries, Finacial Advisor and DCAOS and these recommendations were duly examined and approved by then Secretaries of the various departments as also by the then two Ministers of State for Defence, the then Finance Minister and the then Prime Minister (as RM). Thus, the decision was taken in accordance with the well‑established procedure." (Emphasis supplied).

124. After having recorded its finding with regard to the procedure followed the High Court has passed on to the second question as regards the bona fide nature of the contract.

125. By making reference to the keen competition between the two finally short-listed firms, namely, M/s. Bofors and Sofma and the lower price quoted by Bofors than that of Sofma in addition to certain further concessions amounting to approximately Rs.10.5 crore, the Court held thus: "All this clearly shows that the procedure adopted for finalisation of the contract with Bofors was perfect and bona fide." (Emphasis supplied).

126. The High Court, after recording the above conclusions as regards the procedure followed and the nature of the contract, has examined the vital issue as to whether the allegations made in the F.I.R. do constitute an offence/offences under any of the provisions mentioned in the F.I.R. warrantig a thorough investigation against the respondent.

127. Based on the correspondence exchanged between Bofors and the authorities of the Government of India and the opinion of the then Attorney General of India contained in paras. 8.6 and 8.16 of the report of the JPC the High Court has held as follows: "The petitioner (W.N. Chadha) who was getting 1 lakh SEK per month for administrative services e.g. transportation, forwarding of letters, telex etc. cannot be called a middleman as he never represented on behalf of Bofors for the finalisation of the contract as explained hereinabove."

128. Rejecting the contention on behalf of the CBI that the principal beneficiary of payments made by Bofors to Svenska Inc. in connection with the gun deal in question is the petitioner who is owning the AGC, the High Court has observed thus: "... that contractual obligation between M/s. Bofors on the one hand and Svenska Inc. and AGC on the other had existed much before the decision of the Government of India taken in November, 1984 prohibiting the involvement of agents and middlemen in relation of the gun contract." It has been further concluded by the High Court, " ....it is clear that if at all anybody can be alleged having played any role for finalisation of the contract, it is AE Services Limited with whom association of the petitioner has not been alleged even in the F.LR.."

129. The High Court has also held that the averments made in the F.I.R. against the respondent on the basis of media reports are nothing but only surmises and conjectures.

130. As regards the payment of SEK 1 lakh per month of AGC as revealed by the letter dated 10th March, 1986 of Bofors (vide para. 96 of the F.I.R.) it has been held by the Court below that even as per the allegations in the F.I.R. the said amount paid to the respondent was legitimate one towards the administrative services.

131. Then quoting the opinion of the then Chief of Army Staff recorded in his letter dated 29th November, 1985, the opinion of the then Attorney General contained in paragraph 8.13 of the report of the JPC, the agreement between Bofors and AGC dated 24th October, 1978 and another agreement between Svenska Inc. Panama and Bofors entered into in December, 1978 the period of which was further validated in 1984 the High Court has held: "After the Government of India's policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence."

132. Thereafter, referring to the opinion of the then Attorney‑General contained in paragraphs 8.7, 8.9 and C1.26 of the agreement entered into between Government of India and Bofors it has held: ......that unless there is a specific allegation regarding payment of any money to a public servant in India it cannot be said that the amount paid by Bofors to any of his agents outside India was a bribe meant for certain public servants."

133. According to the Court below, when. there is no reference to any agent or middleman in the contract and when the procedure followed for finalisation of the contract has been perfect, there can be no case of cheating under section 420 of the Indian Penal Code or abetment of cheating against the respondent as well as under any of the penal provisions mentioned in the F.I.R. As there is no allegation of wrongful gain or loss levelled against any of the named and unnamed accused by the Bofors or their agents barring the media reports, there is no question of offences under sections 468 and 471 having been committed. Further in the absence of any material indicating criminal breach of trust, there cannot be any offence under section 409, I.P.C. even on the basis of the allegations as contained in the F.I.R.

134. The High Court has further pointed out that the non‑filing of any suit and the failure to initiate any arbitration proceeding for the recovery of the alleged commission by the Government support the conclusion that there is no breach of trust.

135. At the outset we are constrained to observe that we are terribly shocked on seeing that the High Court has gone out of its authority and overstepped its province by making use of certain original records and then on the basis of the said records proceeded to examine the entire procedure followed right from the proposal up to the finalisation of the contract between Bofors and Government of India and its genuineness and bona fides and ultimately affixed its seal of judicial approval holding that the contract is perfect and bona fide.

136. It is to be noted that the High Court appears to have waded through the entire original records produced before it by the Government for its perusal and on the strength of those documents, the Court has raised the two questions, namely, whether the proper procedure in the execution of the contract was followed and whether the contract finalised is perfect and bona fide‑‑‑and answered both the questions in affirmative, that is, in favour of the respondent and prejudicial to the appellants.

137. The perusal of the impugned judgment clearly discloses that the learned Judges of the High Court have freely used those documents which are said to be secret and confidential and not only referred but also quoted certain portion of those documents in extenso as stated (supra). According to the learned A.S.G., the line of course taken by the High Court to its conclusions on the seriously disputed questions of law and fact taking its cue from the original records cannot be countenanced. In our view, the documents (the copies of which are produced before us claiming to be secret documents) from their very nature could have never been in possession of any third party much less with the respondent and in such a case, the High Court was not at all justified in making use of those documents for its findings especially in a case of this nature where there are serious and outrageous allegations. In these circumstances, one would be constrained (to) observe that the High Court has prejudged the issue and thereby laid down the foundation for its subsequent findings for quashing the entire proceedings. No doubt every Court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of the irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind one way or the other. In this context, it may be appropriate to recall .the following view expressed by Benchamin Govdozo in his Treatise `The Judge as a Legislator': "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight‑errant roaming at will‑ in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system..."

138. We feel that it is not necessary to go deep into the matter any further except saying that the High Court is not justified in affixing its seal of approval to the contract by holding it to be bona fide, on being executed following the proper procedure.

139. For all the reasons stated above we without any hesitation quash those findings with regard to the nature of the contract and the procedure followed.

140. Now let us switch over to the later part of the question and examine whether there are materials prima facie connecting the respondent with the dealings of Bofors.

141. Admittedly the respondent was earlier Bofors' representative in India appointed in the year 1978 and from January, 1986 he was appointed as Bofors' Administrative Consultant. According to the respondent, in the agreement covering the period up to the end of 1985, there was a provision for the payment of commission on sales to him, but his role during this period was essentially supportive in nature and not that of a full‑fledged agent who could bind Bofors in any way or enter into negotiation on their behalf.

142. The learned ASG referring to the secret part of SNAB report published by Hindu in its issue dated 9th October, 1989 and certain other relevant documents published in the issue of Indian Express and Statesman of 13‑10‑1989 states that an Indian who had been agent of Bofors for 10‑15 years was the principal beneficiary of payment made by Bofors to Svenska Inc. in connection with the gun deal in question and that the respondent was very much connected with Svenska Inc. Of course, Mr. Rajinder Singh has denied any connection of the respondent with Svenska Inc. and added that if the period of 10 or I15 years mentioned by the learned ASG is calculated backwards from 1985, it would show that the connection of the alleged agent with Bofors should have started from 1975 and, therefore, the expression `agent' as appeared in the Press could not refer to the respondent who became the agent only in 1978. The argument of Mr. Rajinder Singh has been refuted by the ASG who relied on the statement of the respondent before the investigating agencies engaged by JPC wherein the respondent is stated to have admitted that he was a representative of M/s. Aerotornics General Agency (for short 'AGA') and tried to sell some laser guns to India but was not successful and that sometime in 1975‑76 this Company AGA was taken over by Bofors and it was renamed as Bofors Aerotronics and this was his first contract with Bofors. On the basis of the above statement, the ASG has submitted that the respondent was working with Bofors at least since 1975 which would unmistakably show that he was the sole beneficiary of the payment made to M/s. Svenska Inc. through his first formal agreement with the Bofors in the name of Aerotronies General Corporation signed in 1978. According to him, the fact that in 1978 there was a written contract between Bofors and AGC, of which the respondent is admittedly the President‑‑‑signed by the respondent on 24‑10‑1978 and by Bofors 21‑12‑1978 validating the contract till 30‑9‑1981. Coinciding in point of time another agreement was signed between Svenksa Inc. Panama and Bofors singed by Svenska on 14‑12‑1978 and Bofors on 21‑12‑1978 validating up to 31‑9‑1981. The learned ASG drew our attention to the similarities between the aforesaid agreement of Bofors with Svenska Inc. and AGC. According to him on 11‑3‑1981 through identical letters signed by Martin Ardbo (one of the named accused in the F.I.R.) who is the former President of Bofors, both agreements i.e. one between AGC and Bofors and the other between Svenska Inc. and Bofors were renewed for another period of three years up to 30‑9‑1984 and that in 1984 Bofors signed another agreement with Svenska Inc. and with AGC which are also having similarities. He continues to state that Svenska Inc. Panama belonged to the respondent and the statement made by Bofors' President on 18‑12‑1986 before officials of the Swiss National Bank makes it clear that the principal beneficiary in Svenska Inc. is an Indian who has been an agent for Bofors for 10‑15 years as alleged in para. 25 of the F.I.R. He further states that the description of the payments as commission or as winding up cost is not correct but the payment was remitted by Bofors on 30‑5‑1986 to the account of Svenska Inc. with Swiss Banking Corporation was to make payments to public servants in Government of India as motivation or reward for such public servants who helped finalisation of the contract by dishonestly abusing their official position. It is further submitted by the ASG that there are sufficient materials connecting the respondent with payment of the bribe amount and therefore, the finding of the High Court that the amount paid to the respondent was a legitimate one as the same was for administrative services and the said amount could not be termed as bribe by any stretch of imagination is absolutely incorrect and bereft of the incriminating documentary evidence. The above argument advanced on behalf of the appellants was stoutly resisted by the learned counsel for the respondent, according to whom there was a clear understanding between Government of India and Bofors that there should not be any middle man or agent and in fact the agreement fmalised for purchase of the guns does not spell out the engagement of any middleman or agent.

143. One should not lose sight of the fact that the oral understanding has not been incorporated in the written agreement about which there is no dispute. What is stated at the bar is that the oral understanding has been confirmed by subsequent correspondence between the parties. The High Court has extensively quoted the opinion of the then learned Attorney‑General and very much relied on it for its observation, reading thus: "After the Government of India's policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence."

144. Be that as it may, we feel that it is not necessary to go deep into the matter in the light of our earlier finding given in Criminal Appeal No.304/91 I etc. etc. the judgment of which is reported in (1991) 3 SCC 75 6 and (1992) 4 Y SCC 305: AIR 1993 SCW 248) under the caption Janata Dal v. H.S. Chowdhary wherein we have stated that we were unable to share the assertion of Mr. Justice M.K. Chawla holding that the F.I.R. on the face of it does not disclose any offence. Further this Court has also expressed its feeling on the statement of Justice Chawla in the following terms: "While so, it shocks our judicial conscience that Mr. Justice M.K. Chawla before whom no aggrieved or affected party had come challenging the F.I.R., has taken suo motu action and recorded such a categorical assertion that `no offence' thereby meaning much less a cognizable offence is made out in the F.I.R." .

145. In fact, the High Court in its impugned judgment itself has recorded its finding that they are also of the same view as that of this Court that it may not be correct that the F.I.R. does not disclose any offence against any one named or un-named accused which definitely includes the respondent also. In the background of the finding of this Court and that of the High Court it is not necessary to go deep into the matter by referring to various documents such as report of the JPC, the opinion of the then learned Attorney‑General, report of the Comptroller and Auditor‑General of India etc. lest it may affect either of the parties if the investigation ends up with the trial of the case. Though we refrain from giving any positive finding with regard to the alleged payment of the bribe amount to the respondent, the allegations made in the F.I.R. under section 154 of the Code of Criminal Procedure prima facie constitute the offence alleged therein. Hence we set aside the finding of the High Court that no offence is made out against the respondent under various provisions of the different Statutes.

146. It has been vehemently argued by the counsel for the respondent saying that the allegations of corruption which are wrapped in a. cocoon of ambiguity, falsehood and vagueness were conceived with mala fide motivation of the persons in authority at the time of the registration of the case and the criminal proceedings were‑initiated only with an oblique political purpose. According to the counsel, the investigation geared up by those who were in power in the then outgoing Government in order to gain mileage in the journey of their political career is highly polarised and politicalised.

147. The above argument cannot be countenanced. As observed in Bhajan Lal (AIR 1992 SC 604), when the entire matter is only at a preliminary stage and when the investigation has yet to go a long way to gather the requisite evidence the Court cannot come to a conclusion one way or the other on the plea of mala fide at such a stage. Further in case the investigation discloses that the entire proceeding has been initiated only with mala fides, probably the prosecution itself may throw the case overboard. Answering a similar contention, Bhagwati, C.J. in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288: (AIR 1987 SC 877) has observed as follows (at p. 891, para. 16 of AIR): "It is a well‑established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."

148. The said observations made in Bhajan Lal and Sheonandan Paswan in this regard apply with all force to the case on hand.

149. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceedings to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.

150. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, "Whatever explanation for this may be, we disapprove the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records."

151. It has been vehemently contended on behalf of the appellants that the above observation of the High Court is unwarranted and unjustified since the said observation was made without properly understanding the circumstances under which the piece of paper containing certain names of account‑holders became necessary to be pasted. In relation to this observation, a Criminal Miscellaneous Petition No. 6365 of 1992 is filed in this appeal by Shri K. Madhavan who was then the Joint Director and Special Inspector‑General of Police, Central Bureau of Investigation and was in charge of the investigation of the Bofors case alongwith some other officers and who is now stated to have voluntarily retried from the service w.e. 1st November 1992. According to Mr. Madhavan, this disparaging observation was made by the High Court without giving him any opportunity to explain the circumstances under which the piece of paper was pasted. Mr. N. Natarajan, learned senior counsel for Madhavan explains the circumstances stating under Article 18 of the Federal Act on International Mutual Assistance for Criminal Matters, a letter of request dated 23rd January 1992 was given by the Director of CBI to the Federal Department of Justice and Police, Federal Government of Switzerland, Berne requesting for their assistance in the investigation and for freezing/blocking the credit balance/amounts available in various accounts in Swiss banks. Thereafter, a supplementary request for freezing and blocking of more accounts was given to the Federal Department of Justice and Police by Shri K. Madhavan on 26th January 1990 in which he had given the particulars of the names of the account‑holders in respect of whose accounts the request for freezing/blocking had been made. In continuation of his submission, he has stated that a copy of the above letter was shown to Shri R.C. Jain, Special Judge who had perused the same and that the then Additional Solicitor‑General, Shri Arun Jaidey who appeared on behalf of the CBI before the Special Judge in fact clarified to the learned Judge that the names mentioned in that letter had been furnished on the basis of information received by the CBI. But the learned Judge, Shri R.C. Jain has not enclosed the copy of the letter alongwith other annexures to the letter rogatory dated 7th February 1990 forwarded to the Swiss authorities. It was under these circumstances, Shri Madhavan happened to paste a slip containing the names of those account‑holders as contained in the letter dated 26th January 1990 and handed over the letter rogatory with the enclosures to the Swiss authorities. But when the entire letter rogatory was sent back to the Special Judge for compliance of certain procedural formalities, this disputed piece of paper was also attached to the letter rogatory. Thereafter, the entire matter came before Shri V.S. Aggarwal, the then Special Judge who after going through the entire records inclusive of the slip of paper sent the amended letter rogatory. It is further stated that when Shri V.S. Aggarwal, Special Judge enquired the then Additional Solicitor‑General as to whether the letter dated 26th January 1990 had been shown to his predecessor, Shri R.C. Jain, the Additional Solicitor‑General. confirmed the same stating that the said letter was shown to Shri R.C. Jain and it was only thereafter the amended letter rogatory was forwarded to the Swiss authorities with the piece of paper already pasted on the letter. In other words Shri V.S: Aggarwal, Special Judge has approved the piece of paper already pasted to the letter rogatory and forwarded the same and, therefore, according to Shri Natarajan, the High Court without appreciating and understanding the circumstances under which the piece of paper was pasted has made this disparaging observation and requested that this 'observation may be expunged. In support of the above arguments, a letter dated 16th November 1992 of the then Additional Solicitor General. Shri Arun Jaitlev is produced which letter was given by Shri Arun Jaitley to the query asked by Shri Madhavan in his letter dated 15th November 1992. In his letter, Shri Arun Jaitley has explained the entire matter which fully supports the present plea of the applicant, Shri Madhavan. We in order to satisfy ourselves perused the letter of Shri Madhavan dated 26th January and the typed piece of paper pasted on the letter rogatory and are satisfied that the piece of paper containing the names of the account‑holders tally with the names mentioned in the letter dated 26th January 1990 and that it is only reproduction of one paragraph in verbatim.

152. Though initially, Mr. Rajinder Singh took a serious objection to the conduct of the CBI in pasting this piece of paper to the letter rogatory without the permission of the Court, when confronted by the subsequent approval of Shri V.S. Aggarwal, Special Judge he teas no answer to sustain the remark of the High Court. We are now fully convinced that there was no tampering of judicial letter rogatory but only additional particulars were furnished for ready reference of the names of the account holders as contained in the letter dated 26th January 1990. Even if it is to be held that the piece of paper should not have been pasted, leave apart the explanation offered since Shri V.S. Aggarwal has approved the letter rogatory with the pasted piece of paper on being satisfied the circumstances under which it was pasted, the CBI cannot be ostaracised. It must be noted by pasting that slip Shri Madhavan has not added any additional information on his own. Therefore, we expunge the remark of the High Court, as prayed for in the Cr.M.P. In view of this finding, we hold that the High Court was not correct in holding that this has amounted to tampering of judicial records.

153. The High Court has taken into consideration two factors along with the conclusions arrived at by the JPC in its report for granting the relief to the respondent despite its fording that the allegations in the First Information Report disclose an offence against all the accused about which we will deal in the later part of this judgment.

154. Of the two, first relates to the alleged failure on the part of the CBI to name any one of the public servants as accused even after the 31 months from the registration of the case and the second relates to the impounding of the passport of the respondent.

155. In dealing with the first question of the two, the High Court said: " even after the expiry of more than 31 months from the registration of the F.I.R., CBI has failed to name any public servant as an accused."

156. The above reasoning of the High, Court is neither legally nor factually sustainable. As rightly pointed out by the Additional Solicitor‑General whose submissions we have already summarised in the earlier part of this judgment, it is not due to any indolence or procrastination on the part of the investigation but it is due to the obstructions put on the track of investigation for scuttling the same by approaching the judiciary firstly by Shri H.S. Chowdhary as public interest litigant and secondly by the respondent through his Pairokar. However, the CBI all through is maintaining stoic silence unmindful of all the secornful criticism and vilification levelled against it, and is relentlessly and tirelessly fighting all the litigations so that it can successfully proceed with the investigation and collect all the materials to espouse the cause of justice. To say that the prosecution has failed to name any one of the public servants as an accused even after 31 months from the registration of the case is a very uncharitable criticism. A survey of the various proceedings of this litigation reveals that the investigating agency namely the CBI was fettered at every stage and made to spare its energy more in Court proceedings than in proceeding with the investigation. Only if the investigation is freely allowed without any hindrance, the investigating agency can collect all the requisite particulars and bring the names of those public servants on record, the secrecy of which, it is said, is deeply buried in various places and under various Departments. Hence this reasoning is devoid of any merit.

157. In the penultimate paragraph of the impugned judgment, the High Court has observed: "

It may be noted here that pursuant to the registration of the F.I.R. against the petitioner his passport has been impounded. Non‑bail-able warrants for his arrest were issued and the same have been quashed by a learned Single Judge of this Court and the matter is now pending before the Supreme Court. In these circumstances, it is a fit case where investigation cannot be allowed to continue against the petitioner."

158. We are not able to see any logic in the above reasoning. When we asked the counsel for the respondent as to whether this material of the impounding of passport was placed before the High Court, he hesitatingly stated that the order of the High Court in Criminal Miscellaneous (Main) No. 1318 of 1990 titled Washeshwar Nath Chadha v. State has been reported in (1991) 1 Delhi Lawyer 394 (sic) and thereby requested the Court to infer that the High Court might have taken note of that reported judgment, though the judgment spells out nothing about the source of information in this regard. At the instance of this Court, a copy of the reported judgment in Criminal Miscellaneous case has been placed before this Court by the respondent.

159. Be that as it may, the respondent who was the petitioner in the above case filed a partition before the High Court under section 482, Cr.P.C. read with Article 227 of the Constitution seeking certain reliefs, namely, to permit him, to inspect the F.I.R. which is the impugned F.I.R. in this case, and to quash the non‑bailable warrants issued against him relating to a case registered under the provisions of the Passport Act, 1967.

160. We are surprised that the High Court has taken a serious view of the impounding of the passport as being a supportive reason for its finding of annulling the proceedings. In fact that proceeding under the Passport Act cannot have any bearing in this proceeding initiated for quashing the F.I.R. even though the impounding of the passport is to secure the presence of the respondent for the investigation purposes in connection with the case on hand. However, in passing we would like to quote a sentence from the order of that case, whatever purpose it may serve. The sentence reads " Petitioner does not want the quashing of the F.I.R. nor is he snaking ‑a request to this Court to interfere in the investigation of the case." (Emphasis supplied).

161. It may be stated that the petitioner in that case is the respondent herein and the F.I.R. referred to above is the impugned F.I.R. in the present case.

162. Now we shall pass on to a very important aspect of the case which renders the very conclusions of the High Court quashing the F.I.R. as highly unsustainable.

163. Coming to the close of the judgment, the High Court itself has expressed its view stating " it may not be correct to say that the F.I.R. on the face of it does not disclose any, offence against any one. named or unnamed accused" (Emphasis supplied) which we have already extracted above. Having held so, the High Court thought that in exercise of its powers under Article 226, it could quash the F.I.R. on its findings on the other issues. It surprises us as to how the High Court quashed the F.I.R. after having positively found that the F.I.R. discloses an offence/offences against named and unnamed accused which will include the respondent also. But in the next breath, it is held that no offence is made out.

164. This Court, in its earlier proceedings, has rejected the contention that the F.I.R. does not disclose any offence. This observation is binding on the High Court yet the High Court strongly by way of self‑contradiction has held that no offence is made out against the petitioner and thereby stonewalled the CBI probe. This paradoxical finding perhaps by the High Court is sought to be justified by feebly relying on the fact that the investigating agency has failed to name any public servant as an accused, on the conclusions of the JPC and also on the circumstances of the impounding of the passport of the respondent. These aspects have been dealt by us and we hove categorically held that these aspects do not in any way affect the contents of the validity of the F.I.R. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very F.I.R.

165. We, therefore, are of the firm view the self‑contradictory finding of the High Court itself gives a frontal attack to the impugned judgment, rendering it unsustainable both in law and fact. To put it ironically, the impugned judgment `profusely bleeds due to its self‑inflicted injury.'

166. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent, conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the F.I.R. discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous and untenable and attempting to sustain the other part as being well founded on sound reasoning.

167. It cannot be said that the Report of the JPC, has acquitted the respondent and others of all the charges levelled against them on appraisal of the entire evidence. On the other hand, the Report spells out that Bofors did not cooperate and the evidence relating to the recipients of the amount was not forthcoming. Though we are not inclined to make a detailed survey of the Report, it would suffice to refer to some of the conclusions of the JPC which would serve our purpose. For proper understanding, we shall reproduce hereunder the relevant portions of some of the conclusions, recorded under Chapter IX of the Report of JPC. Conclusion (vi): ........ Despite persistent demands from the Government of India, Befors declined to give details of these payments and the recipients thereof." Conclusion No. (vii): "Bofors have expressed inability to furnish copies of their initial as well as the termination agreements with the three companies to whom winding up costs were paid, on the plea of commercial secrecy. They have complained that such disclosure would be a breach of their confidentiality agreement with these companies. Conclusion No. (ix): "On the ground of commercial confidentiality, Bofors have not furnished full details of the persons to whom winding up costs were paid. Nobody has come forward with any evidence in regard to the identity of recipients of payments made by Bofors. It has not been possible for either our investigating agencies or any other sources to find any evidence regarding the identity of recipients. The Committees have, therefore, not been able to reach any conclusion in regard to the identity of recipients." Conclusion No. (xi): "There is no evidence to show that any middleman was involved in the process of the acquisition of the Bofors guns. There is also no evidence to substantiate the allegations of commissions or bribes having been paid to anyone. Therefore, the question of payments to any Indian or Indian company whether resident in India or not, does not arise, especially as no evidence to the contrary is forthcoming from any quarter." Conclusion No. (xii): "Mere suspicion as regards existence of middleman and/or payments of commissions does not constitute sufficient ground for initiating action to terminate the contract with Bofors or to raise claims for the reimbursement of Government of payments made by Bofors to the three foreign companies." Conclusion No. (xiii): "There is no evidence to establish that the Bofors' payments totalling SEK 319.4 million involved a violation of any Indian law." Conclusion No. (xiv): "There is no evidence of any other payment having been made by Bofors for winning the Indian contract."

168. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully cooperating with the enquiry furnishing ‑the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney‑General of India.

169. Now it is shown that the Swiss authorities are coming forward to give full cooperation and assistance in the collection of evidence at their end. Therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact, Shri Rajiv Gandhi, the then Prime Minister of Ihdia himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th April 1987 which we have already extracted in our earlier part of this judgment. However, it may be recalled, in this connection also, his statement reading "You show us evidence we do not‑want proof, we will bring the proof'. This assurance was affirmed and reaffirmed on more than one occasion by the Minister for Defence during the course of the discussion in the Parliament. The JPC itself has felt some suspicion as regards the existence of middlemen, but what the report says is that the mere suspicion does not constitute sufficient ground for initiating action.

170. It may not be out of place to state, in this context, that there are certain provisions in the Criminal Procedure Code which authorise a police officer to register a case and investigate the matter if there is any reason to suspect the commission of an offence or reasonable suspicion of commission of any offence. Section 157(1) requires an officer in charge of a police station who `from information received or otherwise' has reason to suspect the commission of an offence‑‑‑that is a cognizable offence, he can investigate the matter under section

156. The expression "reason to suspect" as occurring in section 157(1) is not qualified as in section 41(a) and (g) of the Code, wherein the expression "reasonable suspicion" is used. Therefore, what section 157 (1) requires is that the police officer should have `reason to suspect' with regard to the commission of an offence. See Bhajan Lal (AIR 1992 SC 604).

171. Therefore, the suspicion entertained by the JPC gives room for a probe especially when there is scope of getting sufficient assistance to make the probe. The opinion of the then learned Attorney‑General in the JPC report was based only on the materials available on that day and at that stage, but not on the materials which is still to be unearthed and brought over the surface.

172. This Court in Bhajan W (AIR 1992 SC 604) has already examined the principle of law in dealing with the exercise of the inherent power under Article.226 or the inherent powers under section 488 (482?) of the Code in the matter of quashing the First Information Report and also has listed\out the circumstances, by way of illustration though not exhaustively, under which the High Court can quash a F.I.R. We feel that it is not necessary to recapitulate the various decisions of this Court which are already cited in the decision of Bhajan Lal. Cr.M.P. Nos. 4999, 5201 and 4160 of 1992.

173. All the above criminal miscellanceous petitions are filed seeking leave to file appeals challenging the judgment impugned in this case. Admittedly, none of them was a party of the proceeding in the High Court except Shri Prashant Bhushan who filed his petition before the High Court, when the matter was reserved for judgment, as a public interest litigant making a complaint that no proper submissions were made on behalf of the appellants herein with regard to the legality of the issue of letter rogatory and competence of the Special Judge in issuing letters rogatory. This petition was disposed of by the High Court as the allegations in that petition were unfounded.

174. Before this Court, Shri Shanti Bhushan appearing on behalf of Shri Prashant Bhushan stated that every crime is perpetrated only against the society and that is why the State takes up the cause on behalf of the society and, therefore, these petitioners who evince their interest in the protection of the society should be granted leave to canvass the correctness of the impugned judgment as public interest litigants. In support of his submissions, he placed reliance on the observations of this Court in Arunachalam v. P.S.R. Sadhanantham, (1979) 2 SCC 297: (AIR 1979 SC 1284) (para. 5) and Union Carbide Corporation v. Union of India, (1991) 4 SCC 584: (AIR 1992 SC 248 and 317).

175. In Arunachalam, challenging the order of acquittal of the accused in a case of murder passed by the High Court., the brother of the deceased by name Arunachalam filed a SLP and obtained leave from this Court. A doubt was raised about the competency of the private. party as distinguished from the State to invoke the jurisdiction of this Court under Article 136 of the Constitution. It was only in that context, Chinnappa Reddy, J. observed that "we do not have slightest doubt that we can entertain appeals against judgments of acquittal of the High Court at the instance of private parties also."

176. On going through the judgment, we are of the view that it will not be of any assistance for the petitioners herein since none of them was a party to the proceedings and moreover the investigating agency, namely, the CBI and the Union of India who are the affected parties have preferred the appeal.

177. In Union Carbide Corporation (AIR 1992 SC '248 and 317), it has been said that any member of the society must have locus standi to initiate a prosecution as well as to resist withdrawal of such prosecution if initiated. '

178. That proposition also, in our opinion, cannot be availed of as the prosecution was initiated by the appellants herein and they are prosecuting and pursuing the matter up to this Court. The proposition that any one can initiate a criminal proceeding is not in dispute.

179. We have already considered the locus standi of a third party in a criminal case and rendered a considered finding in Janata Dal (AIR 1993 SCW 248) (supra) when this matter came before us in the first round of its litigation. Reference also may be made to Simranjit Singh Mann v. Union of India (1992) 5 JT (SC) 441: (AIR 1993 SC 280).

180. Before the Supreme Court of United States, a similar question arose in Whitmore v. Arkansas (1990) 495 US 149: 109 L Ed 2d 135: ‑110 S Ct 1717 whether a next friend can invoke the jurisdiction of the Court when a real party was not able to litigate his or her own cause. The Supreme Court dismissed the writ of certiorari for want of jurisdiction on the ground that Whitnmore, an independent person lacked standing to proceed in the case. In said case of Whitmore, reliance has been placed on the decision, namely, Gusman v. Marrero, (1900) 180 US 81, 87: 45L. Ed 436: 21 S Ct 293 in which it has been held thus: "However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like thus."

181. In fact when this case on hand came up before this Court arising out of the public interest litigation of Shri. H.S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi.

182. For the above reasons stated above, all the Criminal Miscellaneous Petitions are dismissed.

183. The investigation is only at infant stage and it has to go a long way to collect all the materials. Only after requisite particulars are collected by the investigating agency, the further course of action would be decided. Whatever .it may be, without the battle lines being properly drawn, the Court will not be justified in making any further positive pronouncement on the merits of the serious and cloudy issues involved in this case de hors the findings recorded in this judgment. However, as we feel that there may be a battle to be waged on a later occasion by the litigants if the matter come up for trial, we‑do not propose to make any further observations.

184. In the result, for the discussion made above, we set aside the impugned judgment of the High Court quashing the letters rogatory both dated 5/7tb February 1990 and 21/22nd August 1990 issued by the Special Judge and the F.I.R. registered by the CBI against the respondent under various provisions of different Statutes and other proceedings and orders based on the said F.I.R.

185. Criminal Appeal No. 567 of 1992 is allowed accordingly. Crl. M.P. No.6365 of 1992 filed by Shri K. Madhavan to expunge the observation of the High Court is also allowed.

186. Before we part with this case, we have to observe that any views expressed or observations made by this apex Court should be borne in mind and given effect to. In the instant case, in spite of the finding of this Court in Janata Dal (AIR 1993 SCW 248), the High Court has grossly erred in quashing the F.I.R., the same has resulted in a glaring injustice, namely, that the investigation into grave and serious crime has got scotched and all the efforts so far taken by the investigating agency in digging out the requisite evidence got buried. Therefore, we find it imperative to quash the impugned judgment of the High Court. M.B.A./429/F.C. Appeal allowed.