bofors order-ottavio quattrocchi order

8/7/2019 Bofors Order-Ottavio Quattrocchi Order

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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI

RC 1(A)/90

CBI/ACU IV/SIG/ND (Bofors Case)

CBI V/s Ottavio Quattrocchi

Unique Case ID No.: 02401R6227212004

04.03.2011

O R D E R:

By this order, I shall dispose off application U/s 321 Cr.P.C, filed

by learned Special Public Prosecutor of CBI, Shri U.S Prasad, seeking

withdrawal of the case against accused Mr.Ottavio Quattrocchi (hereinafter

referred to as Q). This application was filed on 03.10.2009. Alongwith the

application, a letter dated 28.09.2009 of the Government of India, Ministry of

Personnel, PG & Pensions was also filed, whereby the Central Government

has conveyed its approval to the proposal of CBI for moving this court for

obtaining consent to withdraw prosecution against Q.

2. This application was opposed by two persons namely Shri Ajay

Kumar Aggarwal, Advocate (hereinafter referred to as Aggarwal) and Shri

Siddharth Gupta, Advocate (in the capacity of President of a society namely

Nirdhan Nishulk Kanooni Sahayata Samiti) (hereinafter referred to as

Gupta).

Order on Application U/s 321 Cr.P.C filed by CBI (Application Allowed) Page 1 of 73


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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.20113. When the arguments on this application commenced, the learned

Additional Solicitor General of India, Shri P.P Malhotra, raised a preliminary

objection that Aggarwal and Gupta do not have locus standi to oppose

this application and argued that application U/s 321 Cr.P.C is necessarily

between the Public Prosecutor and the Court. However, in the larger interest

of justice, this court permitted Aggarwal and Gupta to advance

arguments as Amicus Curiae. However, at that stage, it was left open as to

whether they had locus standi to oppose this application or not. I will deal

with this aspect a little later.

4. This case has a chequered history. The facts of the case in brief,

required for the disposal of this application, succinctly stated are as under:

FACTS ABOUT BOFORS CONTROVERSY:

5. The Indian defense purchase policy, till 1984, allowed foreign

bidders to have their Indian gents. However, they were required to furnish

details of their Indian agents, if any, to the Government, in a prescribed

proforma. Subsequently, the Govt. of India in consultation with the Defence

Department, made a uniform policy, prescribing that agents were not to be

allowed in Indian defense purchases. If any bidder had maintained one, the

amount so payable to agent by the supplier, was to be reduced from the quoted

deal. The revised policy was to ensure that the deal was on a principal to

principal basis, to avoid undesirable consequences which may arise out of



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011such arrangement, to save the cost to the defense budget and thus to the public

exchequer.

6. In respect of the Bofors gun deal, at the relevant time, there were

four bidding firms involved in the bidding of the gun deal, namely, M/s Sofma

(France), M/s Bofors (Sweden), M/s International Military Services (Britain)

and M/s Voest Alpine (Germany). These bidders had furnished the

requisite information about their agents in India.

7. M/s Bofors of Sweden also, in its declaration dated May 19,

1984, under the signature of Hans Ekblom, Vide President (Marketing), had

informed that W.N. Chadha of M/s Anatronic General Corporation, C 4,

Main Market, Vasant Vihar, New Delhi 110057, was their agent, and that,

apart from W.N. Chadha, Hersh W. Chadha, Marketing Director of M/s

Anatronic General Corporation, B.B. Bhatnagar (retired) and Brig. A.L.

Verma (retired) were designated:

i) to liaise with the Government of India for the contract;

ii) to liaise with the Indian Authorities.

8. Consequent to the changed defense purchase policy, the Defense

Department, asked M/s Bofors on May 3, 1985, to dispense with the services

of its declared agent and comply with such Indian Defense policy

requirements. Bofors did not respond immediately and as late as on March

10, 1986 informed the Defense Secretary that, Bofors do not have any



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011representative/ Agent especially employed in India for this project. However,

for administrative services, such as hotel bookings, transportation, forwarding

of letters, telexes, etc., were using a local firm, Anatronic General

Corporation, C 4, Main Market, Vasant Vihar, New Delhi.

9. Be that as it may, on March 24, 1986, a contract number

6(9)/84/D/(GS.IV), was entered into between the Govt. of India and M/s

Bofors, after approval by the then Prime Minister, who was also the Defense

Minister, for supplying four hundred FH 77 B systems along with vehicles,

ammunition and other accessories, at a total cost of SEK 8,410,660,984

[equivalent approximately to Rs. 1437.72 crores (as per the exchange rate on

March 21, 1986, SEK = 1.7094 Rs. Without reducing any agent

representation]. The aforesaid contract was signed by S.K. Bhatnagar for and

behalf of the Govt. of India and by Martin Ardbo, President Bofors and also

by Anders G. Cariberg, president and Chief Executive Officer of Nobel

Industries, for and on behalf of M/s. Bofors.

10. As per the terms of payments stipulated in this contract, 20% of

the total amount of the contract (with the exclusion of any amount related to

services) was to be paid by the buyer, i.e., Govt. of India, in advance, within

30 days from presentation by the seller, i.e. M/s Bofors, of an advance

payment guarantee. On receipt of the advance payment guarantee from

Bofors on April 7, 1986, the advance payment of SEK 1,682,132,196.80



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011(Rs.296.15 Crore), equivalent to 20% of the contract value was paid to M/s

Bofors on May 2, 1986.

11. From here the events took a turn. On 16.04.1987, i.e, over a year

after the said contract was executed, when the advance money had been paid

by the Govt. of India as per the terms of the contact and after delivery of the

gun systems had started, a Radio Broadcasting channel Dagens Eko of the

Swedish Radio, came out with a sensitive news. It unfolded that Bofors had

violated the Swedish Law by managing to obtain this Gun Supply contract

from the Govt. of India, amongst other things, due to the fact that local agents

had been paid large amounts in bribes.

12. It further stated that the agents had helped Bofors in getting the

contract by dubious means with the help of local contacts and support within

the Indian Military Authorities, the Bureaucracy and concerned politicians.

The illicit payments to the agents and others were said to have been made by

transactions in secret bank accounts in Switzerland.

13. This news became a center of media & political attention in India

also and was intensely reported everywhere, raising very sensitive issues of

Indian Defense Policies, corruption, manipulations etc. The Govt. of India

acted on these disturbing events, and on 21 4 1987, made a formal request to

the Government of Sweden for an investigation into the allegations.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201114. The Swedish Government accepted the request of the Govt. of

India and ordered an enquiry by its organization, the Swedish National Audit

Bureau (SNAB). The SNAB submitted its report to the Swedish Government

of June 01, 1987, which was forwarded on June 04, 1987 to the Govt. of India.

SNAB report, interalia stated that considerable amounts were paid to some

agents by M/s A.B Bofors.

15. SNAB also confirmed that payments to the tune of SEK 170 250

million were indeed made by Bofors in connection with this Defense contract

to its previous agent in India, but the names of the recipients were not

mentioned.

16. Facts thus emerged from SANB report that despite having full

knowledge about the policy of the Govt. of India that there should not be any

agent whatsoever in this deal, Bofors continued with its old agent. Further, the

amount such commission instead of reducing from price was paid to agent

and related parties. Bofors thus acted in violation of the Indian defense

policies and rules and harmed the public exchequer, besides committing

breach of propriety etc.

17. It emerged further that despite the Indian Govt's insistence not to

appoint or pay any agent, Bofors entered into a fresh consultancy agreement

with M/s. AE Services Limited of U.K. On November 15, 1985 at the behest



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011of one Q, an Italian. According to this agreement, M/s. AE Services was

appointed as a consultant to M/s. Bofors for getting the award of the contract

for 155 mm gun systems from the Govt. of India, to perform the following

services :

(i) to support Bofors in its bid for the contract according to

instructions of Bofors;

(ii) to keep Bofors informed of the up do date situation and progress

of negotiations.

18. Bofors was to pay a fee equivalent to 3% of the total value of the

contract pro rata with the receipt of the payments. As per its terms, the

Agreement was to cease automatically on April 1, 1986, if by this date, the

contract was not awarded by the Govt. of India to Bofors. Thus, M/s AE

Services were to get the fees only if the contract was, in fact, awarded a week

before that date. It thus emerged that Bofors deliberately suppressed the fact

of their aforesaid Agreement dated 15.11.1985 with M/s. AE Services in their

letter dated 10.03.1986, addressed to the Ministry of Defense, in terms of

disclosure and reducing the cost of the deal as stipulated.

19. Investigation revealed that the said Q had contacted Myles

Tweedale Scott, Director of M/s. AE Services Limited, sometime before

7.8.1985, for the purpose of the said agreement and was instrumental in

bringing about the said agreement between M/s. AE Services Limited and

M/s. Bofors. Q remained in India from 28.02.1965 to 29.07.1993, except for



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011a brief interval from 04.03.1966 to 120.06.1968. He was a Certified Chartered

Accountant by profession, working with M/s. Snamprogetti, an Italian

multinational company (MNC) providing the services of designing,

engineering, management of construction and the training of personnel in the

sector of oil refineries, gas processing, petrochemicals, fertilizers and

pipelines. Neither Snamprogetti, nor Q had any experience of guns, gun

systems or any related defense equipments.

20. It emerged that after payment of SEK 1,682,132,196.80 (Rs.

29615.00 Lakhs), equivalent to 20 % of the contract value, to Bofors on May

2, 1986 by the Govt. of India, Bofors remitted a sum of SEK 50,163,966.00

(equivalent to US $ 7,343,941.98), on September 03, 1986, to A/c No.

18051 53 of M/s AE Services Limited at Nordfinanz Bank, Zurich. This

Account of M/s AE SERvices Limited C/o Mayo Associates SA, Geneva, had

been opened only a fortnight earlier, on August 20, 1986, by Myles Tweedale

Stott as its Director. This amount of SEK.50,463, 966.00 works out to be

exactly 3% of the amount of advance paid by the Govt. of India to Bofors and

was, thus, perfectly in accordance with the terms set out in the A.E. Services

Ltd. Bofors Agreement dated November 15, 1985.

21. From this Account of M/s. AE Services, an amount totaling US

$7,123,900 was transferred ($ 7,000,000 on September 16, 1986, and $ 123900

on September 29, 1986) to Account No.254.561.60W of M/s. Colbar



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011Investment Limited Inc., Panama with the Union Bank of Switzerland,

Geneva. An amount of US $ 7,943,000 was further transferred from the above

said Account of M/s. Colbar Investments Limited Inc. on July 25, 1988, to

Account No.488.320.60 X of M/s. Wetelsen Overseas, SA with the Union

Bank of Switzerland, Geneva. Thereafter, on May 21, 1990 an amount of US $

9,200,000 was transferred from the above said Account of M/s. Wetelsen

Overseas, to Account No.123983 of International Investments Development

Co., in Ansbacher (CI) Limited, St. Peter Port, Guernsey (Channel Islands).

These Accounts of M/s. Colbar Investments Limited Inc., as well as M/s.

Wetelsen Overseas, were being controlled by Q and his wife Maria

Quattrocchi.

22. Enquiries further revealed that, while opening the Account of

Colbar Investments Ltd. Inc. with the Union Bank of Switzerland, Geneva on

March 30, 1984, Q had mentioned his address in India as Colony East,

New Delhi, India, which was a fake and non existent address.

23. Investigations in Guernsey (Channel Island) also revealed that the

entire money, i.e. US $ 9.2 million, was further channeled to various

Accounts in Switzerland and Austria, within a period of 10 days of its receipt

in Guernsey. Letters Rogatory were issued by the Court of Special Judge,

Delhi to the competent Authorities in Switzerland and Austria for judicial

assistance in investigation in these countries.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201124. More investigative revelations demonstrated that Bofors also had

another consultancy agreement with an entity incorporated in Panama,

namely , M/s. Svenska Inc. since the year 1978. Despite the Govt. of India's

initial policy requiring foreign bidders to declare the agent in a prescribed

proforma and its subsequent policy requiring foreign bidders to remove their

agents and to reduce the commission amount from the deal price, Bofors yet

again was found to be violating Indian national policies. By this so called

agreement Bofors committed to pay a commission to M/s. Svenska Inc. out of

any contract signed by Bofors in India, Sri Lanka, Nepal etc. This agreement

was modified from time to time and it was agreed in January 1986 that

commission to the extent of 3.2% of the ex works value would be paid to M/s

Svenska Inc. Out of this, 2.24 % (two point two four per cent) of the total ex

works value was to be paid without delay when the advance payment had

been received by Bofors. The remaining 0.96% (point nine six per cent) of the

ex works value was to be paid pro rata without delay when the payments for

deliveries had been received by Bofors.

25. Letters Rogatory were issued by the Court of Special Judge,

Delhi to Switzerland, Sweden, Panama, Luxembourg, Bahamas, Jordan,

Liechtenstein and Austria, with a view to finding out other beneficiaries of

the commission amounts.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201126. The documents received from the Swiss Authorities, in response

to the letter by Rogatory, revealed that the following payments were made by

Bofors to Svenska from their Account with Skandinaviska Enskilda Banken,

Stockholm, on May 6, 1986.

SEK 113.39283.64 equivalent to US$ 16,070,412.80

SEK 28259820.64 FFR 27,957,875.84

SEK 28259820.92 CHF 7,346,128.29

SEK 18839879.98 XEU 2,720,363.87

Total SEK 188,398,805.18

A calculation will show that this a almost 2.24% of the total

value of the contract i.e., SEK8410660984, exactly as per the terms of the

aforesaid Agreement.

27. The following additional payments made by Bofors revealed that

each additional payment works out to be exactly .96% of a particular invoice

of Bofors and the date of payment also matches with the date of payment by

the Govt. of India.

Invoice No., its date & date of

payment

Gross amount of

Invoice (in SEK)

Commission @ 0.96% (in

SEKO)

1014271 dated 29.7.86 paid on

8.8.86

67,166,028 644,793.87

2010043 dated 20.2.87 paid on

2.3.87

66,657,160 639,908.75

102008 dated 19.2.98 paid on 9.3.87 13,981,805.92 134,225.34

2010136 dated 16.3.87 paid on

7.4.87

71,468,308 686,095.76

1010496 dated 23.3.87 paid on

2.4.87 and 1010488 dated 20.3.87

paid on 3.4.87

27,195,139

352,380

264,456.18



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201128. Inquiries further revealed that, including the above payments,

M/s. Bofors had paid an amount equivalent to SEK 192156200.05 during the

period from April 24, 1986 to March 30, 1987 in the name of M/s. Svenska

Inc. Panama, for the said deal with the Government of India, which were

credited to Account No.99921 TU of Mr. W.N. Chadha then resident of C 5/7,

Vasant Vihar, New Delhi (India) with Swiss Bank Corporation, Geneva. The

said Account was opened on August 9, 1983 with initial deposit of US

$160,000. For the said Account, Mr. W.N. Chadha had given a Powers of

Attorney in favour of his wife Ms. Kanta W. Chadha and his son Hersh W.

Chadha. It also emerged that the Board of Directors of M/s. Svenska Inc.,

Panama, in its meeting held on 30.4.1980, had authorised W.N. Chadha, then

resident of C 5/7, Vasant Vihar, New Delhi, to open and operate bank

accounts of any type at any banking institution by a Power of Attorney, with

the fullest rights and powers to substitute any one else's name in place of his

own for the said purpose.

29. Investigations revealed that Mr. W.N. Chadha and Q had been

transferring the funds received from Bofors frequently from one account to

another and from one jurisdiction to another to avoid detection and to

obliterate the trial of the money.

30. The advance payment of SEK 1,682,132,196.80 (Rs.296.15

Crores) equivalent to 20% of the contract value was disbursed by the Govt. of

India to Bofors on May 2, 1986. The balance 60% of the contract amount



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011equivalent to SEK 6,728,528,787.60 was paid to Bofors during August 1986 to

1990, from time to time, against the deliveries. The investigations revealed

that an amount of SEK 242.62 million was paid by M/s. AB Bofors, as

commission, to Quattrocchi and W.N. Chadha through M/s. A.E. Services and

M/s. Svenska, in contravention of the policy of the Govt of India not to allow

middlemen/agents in the deal. No commission was to be paid by Bofors in

connection with the contract. If any such stipulation in this regard did exist,

the commission amount should have been reduced from the contract price.

Thus, the Govt. of India had to pay excess amount of total SEK 242.62

million, which was passed on by Bofors to its agents Mr. W.N. Chadha and

Mr. Quattrocchi against the express terms of contract.

31. It shall be pertinent to mention relevant dates in form of a chart

to further co relate the events and history:

S. No. Date Particulars

1. 1975 Expert committee set up under Chairmanship of Lt. General K.V.

Krishna Rao which recommended induction of medium gun of

155 mm caliber pg 157 of PB dated 12.04.2010

2. October, 1978 Mr. W.N. Chadha entered with AB Bofors for representation in

India for a period of three years ending in September, 1981, which

provided commission @ 2%.

3. March, 1981 The Representation Agreement between AB Bofors and Mr. W.N.

Chadha extended for another period of three years. This was

followed by another agreement with M/s Anatronic General

Corporation for a period of three years.

4. March, 1980

April, 1982

Trials were conducted for guns whose tenders had been received

by the Ministry of Defense pg. 157.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011S. No. Date Particulars

5. July, 1982 Army Headquarters sent a draft CCPA paper to the Ministry ofDefense in connection with procurement of guns. pg 157

6. October, 1982 Ministry of Defense asked Army Headquarters to prepare detailed

evaluation report on the basis of the trials conducted. pg 157

7. December,

1982

The General Staff Evaluation Report of 1982 shortlisted the

following guns (a) British, (b) Austrian, (c) French Sofma and (d)

FH 77B gun from Bofors, Sweden. pg 157 & 158.

8. May, 1984 AB Bofors accepted as late as 30.11.9/84 a revised contract to Mr.

W.N. Chadha with reduced rates since Bofors had not been able toget any business in India.

9. May, 1984 Negotiating Committee set up a negotiate with the shortlisted

companies. pg 158.

10. 18.08.84 to

28.08.84

Negotiations were held between the short listed companies and the

Negotiating Committee.

11. 24.08.1984 Army Headquarters recommended that the British and Austrian

systems were not acceptable and one again recommended Bofors,

Sweden and Sofma, France pg. 158 159.

12. 30.11.1984 Mr. W.N. Chadha signed the revised Representation Agreement

with Bofors which provided commission @ 0.25 % for a period of

three years

13. End of 1985 Bofors informed Mr. W.N Chadha that as per the request of the

Indian Prime Minister, Bofors could not employ any middlemen in

the deal with the Indian authorities.

14. 03.01.1986 Bofors sent a letter to Mr. W.N. Chadha stating that all

representation agreements between Anatroic/Mr. Chadha and

Bofors stood rescinded as on 31.03.1985.

15. January, 1986 Mr. W.N. Chadha signed an Administrative Consultancy

Agreement with Bofors under which he was to be paid 100,000

SEK per month irrespective of Bofors getting any business in

India.

16. 17.02.1986 Army Headquarters submitted their final technical evaluation

report stating that the Swedish Bofors gun had a clear edge over

the French Sofma gun. pg. 15917. 10.03.1986 Bofors confirmed that they did not employ any agent in India in



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011S. No. Date Particulars

respect of the deal with Ministry of Defence for the FH 77B gundealpg. 140.

18. 21.03.1986 Revised offer received from Bofors, Sweden pg. 159.

19. 22.03.1986 Revised offer received from Sofma, France pg. 159.

20. 24.03.1986 The deal with Bofors was approved and MOU signed with the

Government of Sweden pg. 159.

21. 17.04.1987 Leading newspapers in India gave coverage to Swedish Radio

Broadcast that bribes had been paid to senior Indian politicians

and key Defence figures in connection with the Bofors gun deal.Pg. 140.

22. 04.06.1987 SNAB report submitted to Ministry of External Affairs pg. 143.

23. 29.07.1987 Union Minister of Defence, Mr. KC Pant, moved motion in Lok

Sabha for appointment of a Joint Parliamentary Committee. Pg.

144.

24. 12.08.1987 Rajya Sabha also approved formation of JPC pg 148.

25. 28.08.1987 JPC set up pg 148.

26. 28.08.1987 JPC submitted its report giving a clean chit to Shri W.N. Chadha

paper book dated 12.04.2010.

32. As against Q, the case of CBI is that on the basis of source

information, certain facts and circumstances that became available, media

reports, report of Swedish National Audit Bureau, certain facts contained in

the report of Joint Parliamentary Committee (JPC) and the report of

Controller & Auditor General of India, it was alleged therein that during the

period between 1982 87, certain public servants entered into a criminal

conspiracy with certain private persons/others, in India and abroad, and in

pursuance thereto committed offence of bribery, cheating, swindling and



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011forgery, in respect of a contract dated 24.03.1986, entered between

Government of India and AB Bofors of Sweden for supply of guns, towed

vehicles and ammunition by AB Bofors to Government of India. A

percentage of said amount of contract was remitted by AB Bofors in a

clandestine manner to certain public bank accounts in Switzerland as illegal

gratification for the benefit of certain public servants of the Government of

India and their nominees. As per the chargesheet filed in the matter, the

investigation had revealed that AB Bofors had obtained contract pursuant to

entering into conspiracy with certain public servants, who were responsible

for decision making process, even though the gun system offered by them was

inferior to the other available alternatives. The investigation further revealed

that in spite of express policy of the Government of India, M/s AB Bofors

in conspiracy with Q and others appointed M/s A.E Services, UK as one of

their agents through Agreement dates 15.11.1985 to secure the contract. Q

was found instrumental in execution of contract with AB Bofors in November'

1985. AB Bofors were paid an amount equivalent to US $ 73,43,941.98 and

the same was credited on 08.09.1996 in their bank account, ostensibly for this

purpose. In part execution of letter rogatory, the Swedish authorities had

made available copies of certain documents, duly authenticated, which

revealed that the amount credited in the account of M/s AE Services was

laundered further. After an interval of eight days only, the amount of US $

71,23,900.00 was transferred in two instalments of US $ 7,00,000.00 and US $

12,390.00 on 16.09.1986 and 29.09.1986 respectively to an account of M/s



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011Coalbar Investment Limited Inc., Union Bank of Switzerland, Geneva,

Switzerland. This account was authorised to be operated and controlled by

Q and his wife Maria Quattorocchi. At the relevant time, Q was

employed with M/s Snamprogetti (an Italian MNC) and was stationed in

Delhi. In the relevant document, Q gave a non existent address in Delhi. It

was further revealed that the aforesaid amount was again transferred on Q's

instructions to the account of M/s Wetelson Overseas, S.A of Panama on

25.07.1989 in the same bank. The said company was floated in Panama on

06.08.1989 and was dissolved on 07.08.1990, indicating that this company

floated only to receive this money and used as conduit for paying illegal

payments through the bank accounts, which could be operated and controlled

by Q and his wife individually. While letter rogatory was under process,

US $ 20,000.00 was again transferred from the account of M/s M/s Wetelson

Overseas, S.A, in UBS, Geneva to Inter Investment Company for the benefit

of International Investments Development Company, in Ansbacher (CI)

Limited, St.Peter Port, Guernsey (Channel Islands) on 21.05.1990. As per the

chargesheet, the entire transaction of payment by M/s AB Bofors to M/s AE

Services and others were intended to mascuard the ill gotten payment/

commission/bribe and thus the Government of India was defrauded and put to

loss. It has been further stated that Q is the holder of Italian Passport and

he left India abruptly in July' 1993. As such, a strong suspicion of his

involvement in this case has been expressed.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201133. In this case, on 22.10.1999, CBI filed a chargesheet against Shri

S.K Bhatnagar, Shri Win Chaddha, Q, Mr.Martin Ardbo and M/s AB

Bofors and thereafter on 09.10.2000 supplementary chargesheet was filed

against Shri S.P Hinduja, Shri G.P Hinduja and Shri P.P Hinduja (hereinafter

referred to as Hinduja Brothers). Since, presence of Mr.Martin Ardbo and

Q was not being secured and un necessary delay was taking place, the court

of Ld.Special Judge, vide order dated 25.05.2001 separated the trial of Q

and Mr.Martin Ardbo. However, later on Mr.Martin Ardbo expired and the

proceedings against him abated. Similarly, S.K Bhatnagar and Win Chaddha

also expired and proceedings against them also abated.

34. On the directions of CBI, a Red Corner Notice, bearing No.

5323/97 (A 44/2 1997) had been issued against Q on 17.02.1997, pursuant

whereto, he was arrested in Malaysia. However, vide order dated 02.12.2002,

of the Ld.Sessions Judge at Kualalampur, Malaysia, he was discharged from

the extradition case. The Court of Appeal at Kualalampur, Malaysia vide its

judgment dated 13.12.2002 upheld the order of Sessions Court. The Federal

Court of Malaysia also upheld the order of discharge of Q in extradition

case vide its judgment dated 30.04.2003 and as such, the attempt of CBI in

extraditing Q from Malaysia failed at three levels.

35. On 14.11.2002, the learned Special Judge had framed charges in

the matter against M/s AB Bofors, Shri S.P Hinduja, Shri G.P Hinduja and



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011Shri P.P Hinduja. All the aforesaid persons challenged the framing of charges

against them before the Hon'ble High Court of Delhi, by way of Criminal

Misc. (Main) No.3938/03, which was disposed off by the Hon'ble High Court

vide judgment dated 04.02.2004, interalia holding as under:

xxxxx

(i) Charges for offences punishable under Sections 120B/420 IPC

and Section 5(2) r/w Section 5(1)(d) of Prevention of Corruption Act,

1947 and Section 165 A r/w Section 161 IPC against the petitioners for

having entered into a criminal conspiracy with the public servants to

cheat the Government of India and having abetted the public servants to

commit criminal misconduct by abusing their official position and taken

illegal gratification for awarding contract are quashed.

(ii) The charges that need to be framed against the petitioners P.P

Hinduja, G.P Hinduja and S.P Hinduja for the offences punishable U/s

120 B/420 IPC for having entered into a criminal conspiracy between

April, 1985 to March, 1986 to cheat the Government of India by

fraudulently and dishonestly representing that there were no agents

involved in the negotiation for the contract and further that the price

quoted was reduced price proportionate to the amount of commission

they would have otherwise paid to the agents and thereby induced the

Government of India to award the contract in favour of Bofors and

caused wrongful loss to the Government of India to the extent of amount

they would have paid as commission to the agents viz. Hindujas, Win

Chadha and Quattorocchi.

(iii) Charge for the offence punishable U/s 465 IPC for having made

false documents as referred in the impugned order shall be framed

against M/s A.B Bofors.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011143. Since the cases were brought within the jurisdiction of the

Special Judge merely by including the offence punishable U/s 5(2) of

Prevention of Corruption Act, 1947 on account of criminal misconduct

by public servants by abusing their official position by awarding the

contract, so as to gain pecuniary advantage to Bofors and its agents and

themselves and all other offences were triable by the Magistrate and

since the charge for this offence has been held to be unsustainable, the

cases against the petitioners, including those of Martin Ardbo and

Mr.Quattrocchi shall stand transferred to the court of Chief

Metropolitan Magistrate for framing of charges, as observed in this

order.

143. In view of inordinately procrastinated investigation, CMM shall

in order to maintain and restore the confidence of people in the

effectiveness of administration of criminal justice, take up the case as far

as possible on day to day basis and try to conclude the trial and decide

the case as expeditiously as possible. CBI shall also confine its

evidence strictly in terms of the charges for the offences punishable U/s

120 B/420 IPC against the petitioners and offence U/s 465 IPC against

M/s A.B Bofors. Parties to appear before CMM on 23.02.2004.

xxxxx

36. Pursuant to the aforesaid judgment of the Hon'ble High Court,

this court, vide order dated 26.03.2004 framed charges against Hinduja

brothers and M/s A.B Bofors U/s 420 IPC r/w Section 120 B IPC. The

aforesaid order of this court was challenged before the Hon'ble High Court by

way of Criminal Revision Petition No.271/2004, which was disposed off by



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011the Hon'ble High Court vide judgment dated 31.05.2005, interalia holding as

under:

67. From what has been noted and discussed above and on the basis

of the statements made by the prosecution, no case cane be proceeded

with in respect of the Hinduja Brothers or the Bofors Company. I,

accordingly, allow Crl.M.A 169/2005 & 170/2005 in Crl.Rev.271/2004,

Crl.M.AS 171/2005 & 172/2005 in Crl.Rev.272/2004, Crl.M.A 173/2005 &

174/2005 in Crl.Rev.273/2004 and Crl.M.C 763/2005. I quash all the

proceedings against the Hinduja Brothers emanating from FIR/Case

No.RC 1(A)/90 ACI IV/SIG/New Delhi and discharge them from the

case. I also quash order dated 26.03.2004 of the Chief Metropolitan

Magistrate framing charges against the Bofors Company and discharge

the Company from the case. The bail bonds and surety bonds shall

stand discharged. The record received from the trial court be sent back

forthwith.

37. The CBI did not challenge the aforesaid two judgments before the

Hon'ble Supreme Court and as such, the aforesaid judgments attained finality.

It transpired from submissions of Aggarwal that he had filed an SLP against

the judgment dated 31.05.2005, passed by the Hon'ble High Court of Delhi inCrl. Revision No.271/2004, which is pending disposal before the Hon'ble

Supreme Court.

38. The grounds taken in this application for withdrawal of

prosecution against Q are as under:



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011(a) That 23 years have passed from the date of alleged offence and

more than 19 years have elapsed after registration of the case.

(b) That all other co accused have either died or proceedings

against them have been quashed, including the proceedings against M/s

A.B Bofors and the alleged beneficiaries of the contract by virtue of the

judgments of the Delhi High Court and no appeals have been preferred

by the CBI either against the order of Hon'ble Mr.Justice J.D Kapoor or

the judgment of Hon'ble Mr.Justice R.S Sodhi.

(c) Even though there is an undertaking by M/s A.B Bofors prior to

entering into the contract that they do not have any representative/agent

specially employed in India, I notice that the original contract between

M/s A.B Bofors and Government of India does not provide for any

prohibition for employment or non employment of Indian or foreign

agents. I also notice that full payments in regard to the contract have

been paid to M/s A.B Bofors even after lodgment of FIR. I find that no

steps to recover any monies were adopted against M/s A.B Bofors.

(d) In view of judgment of Hon'ble Mr.Justice J.D Kapoor, any

allegations of corruption or conspiracy with public servants is knocked

out.

(e) In any event, the attempts to secure the presence of Ottavio

Quattrocchi from Malaysia and Argentina have failed. I find that the

Malaysian Court has also touched upon the merits of the matter.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201139. I have heard the learned Additional Solicitor General of India and

Aggarwal at length and have perused the entire material on record

meticulously. However, Gupta stopped appearing in the matter after two or

three hearings and as such, he could not be heard completely. Now, I propose

to decide as to whether Aggarwal and for that matter even Gupta has

locus standi to oppose this application in public interest. A perusal of

record would reveal that Aggarwal has challenged the judgment dated

31.05.2005 of the Hon'ble High Court of Delhi against the discharge of

Hinduja Brothers, before the Hon'ble Supreme Court, where his SLP is

lying admitted. He also appears to have filed several interlocutory

applications from time to time as well as a Writ Petition before the Hon'ble

Supreme Court and some directions were passed by the Hon'ble Supreme

Court on his applications from time to time in public interest. The question

which falls for consideration of this court is whether that is sufficient for him

to have locus standi to oppose this application before this court,

particularly in view of the fact that this court does not have inherent powers,

as contemplated U/s 482 Cr.P.C, whereas the Hon'ble Supreme Court has

ample powers U/s 482 Cr.P.C as also under Article 136 of the Constitution. It

is also apparent that this is neither a public interest litigation which is pending

before this court, nor this court has jurisdiction to entertain any public interest

petition, which the Hon'ble High Court has under Article 226 and 227 of the

Constitution and Hon'ble Supreme Court under Article 32 of the Constitution

has. The arguments of Aggarwal were that he is a public spirited citizen of



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011this country and has locus standi to oppose this application in the public

interest.

40. It is necessary to take note of the meaning of the expression

Public Interest.

41. In Shroud's Judicial Dictionary, Vol.IV, 4th Edition, Public

Interest is defined as under:

Public Interest A matter of public or general interest does not mean

that which is interesting as gratifying curiosity or a love of information

or amusement; but that in which a class of the community have a

pecuniary interest, or some interest by which their legal rights or

liabilities are affected.

42. In Black's Law Dictionary, 6th Edn., Public Interest is defined

as follows:

Public Interest Something in which the public, the community at

large has some pecuniary interest, or some interest by which their legal

rights or liabilities are affected. It does not mean anything so narrow as

mere curiosity, or as the interests of the particular localities, which may

be affected by the matters in question. Interest shared by citizens

generally in affairs of local, State or National Government.

43. In case reported as, 1992(4) SCC 305, titled as, Janta Dal

V/s H.S Chaudhary, the Hon'ble Supreme Court considered the scope of

public interest litigation.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201144. In para 26 of the aforesaid judgment, the Hon'ble Court observed

as under:

xxxxx

26. Even if there are million questions of law to be deeply gone into

and examined in a criminal case registered against specified accused

persons, it is for them alone to raise all such questions and challenge the

proceedings initiated against them at the appropriate time before the

proper forum and not for the third parties under the garb of public

interest litigants.

xxxxx

(Emphasis supplied)

45. Further, in para 53 of the said judgment, after considering what

is public interest, it was laid down as follows:

xxxxx

53. The expression litigation means a legal action, including all

proceedings therein, initiated in a court of law with the purpose of

enforcing a right or seeking a remedy. Therefore, lexically the

expression PIL means a legal action initiated in a court of law for the

enforcement of public interest or general interest in which the public or a

class of the community have pecuniary interest or some interest by which

their legal rights or liabilities are affected.

xxxxx

46. In para 62 of the aforesaid judgment, it was pointed as follows:

xxxxx

62. Be that as it may, it is needless to emphasise that the

requirement of locus standi of a party to a litigation is mandatory,



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011because the legal capacity of the party to any litigation whether in

private or public action in relation to any specific remedy sought for has

to be primarily ascertained at the threshold.

xxxxx

47. In para 98 of the aforesaid judgment, it was further pointed as

follows:xxxxx

98. While this court has laid down a chain of notable decisions with

all emphasis at their command about the importance and significance of

this newly developed doctrine of PIL, it has also hastened to sound a red

alert and a note of severe warning that courts should not allow its

processes to be abused by a mere busybody or a meddlesome interpoler

or wayfarer or officious intervener without any interest or concern

except for personal gain or private profit or other oblique consideration.

xxxxx(emphasis supplied)

48. In para 109 of the aforesaid judgment, it was further pointed as

follows:xxxxx

109. It is thus clear that only a person acting bonafide and having

sufficient interest in the proceeding of PIL will alone have a locus standi

and can approach the court to wipe out the tears of the poor and needy,

suffering from violation of their fundamental rights, but not a person for

personal gain or private profit or political motive or any other oblique

consideration. Similarly, a vexatious petition under the colour of PIL

brought before the court for vindicating any personal grievance, deserves

rejection at the threshold.

xxxxx(emphasis supplied)



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201149. It is worth noting that H.S Chaudhary's case (supra), relates to

the controversy in the present case itself. At the relevant time, one advocate

namely Shri H.S Chaudhary, claiming to be the General Secretary of an

Organisation namely Rashtriya General Parishad had filed a Crl. Misc.

Petition before the learned Special Judge under Article 51 (A), interalia

praying that no request for rogatory be made to Swiss Government. A

further prayer was made therein that he should be permitted to join during

enquiry before the Court. The learned Special Judge dismissed his aforesaid

petition taking view that he had no locus standi , whereafter he filed a

Criminal Revision Petition before the Hon'ble High Court of Delhi, raising

multiple questions of law, challenging the legality and validity of not only the

impugned order, but also the very chargesheet and FIR in this case. Even the

Hon'ble High Court observed in its judgment that he did not have locus

standi. The Hon'ble Supreme Court also ruled in the matter that he did not

have the locus standi . Aggarwal is as such, a second lawyer, who has

shown similar demeanor, as was shown by Shri H.S Chaudhary, Advocate,

who was held to have no locus standi in this matter upto the Hon'ble

Supreme Court.

50. This court during the course of hearing, on various dates noticed

that on the succeeding day of each date of hearing, there would be newspaper

reports about the arguments advanced in court by Aggarwal and some of

the reports were even sensational, wherefrom it can be reasonably deduced



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011that Aggarwal is interested in attaining cheap publicity by going to the

media persons after every date of hearing and playing trumpet of corruption

in this case by public servants contrary to the judgments already passed by

Hon'ble High Court of Delhi, by supplementing his own views about the case.

It is depressing to note that on account of such trumpery proceedings before

this court, innumerable days were wasted, which time otherwise could have

been spent for the disposal of cases of genuine litigants. It is a fact that the

courts, particularly at the subordinate level are flooded with cases which

include matters involving properties worth hundreds of millions of rupees and

criminal cases in which persons sentenced to death and facing gallows under

untold agony, persons sentenced to life imprisonment and kept in

incarceration for long years, persons suffering from undue delay in service

matters government or private, persons awaiting disposal of cases wherein

huge amounts of public revenue or unauthorized collection of tax amounts are

locked up, detenus expecting their release from the detention orders etc., are

all standing in a long serpentine queue for years with the fond hope of getting

into courts and having their grievances redressed, the busy bodies,

meddlesome interlopers, wayfarers or officious interveners having absolutely

no public interest except for personal gain or private profit either of

themselves or as a proxy of others or for any other extraneous motivation or

for the glare of publicity break the queue muffling their faces by wearing the

mask of public interest litigation and get into the courts by filing vexatious

and frivolous petitions and thus criminally waste the valuable time of the



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011courts and as a result of which the queue standing outside the doors of the

court never moves, which piquant situation creates frustration in the minds of

genuine litigants and resultantly, they lose faith in the administration of our

judicial system (reference case reported as (2004) 3 SCC 349, titled as,

Ashok Kumar Pandey V/s State of West Bengal).

51. Further, in case reported as, AIR 1952 Raj.42, titled as, Amar

Narain Mathur V/s The State of Rajasthan, the Hon'ble Court observed as

under:

xxxxx

3. .....A preliminary objection was raised by Mr.Pathak on behalf of

the State of Rajasthan and his contention was that the applicant had no

locus standi and this court should not, therefore, hear his counsel.

The argument was that the applicant, Shri Amar Narain, was a complete

stranger to the proceedings and had, therefore, no right to apply to this

Court in revision. It was further urged that in a criminal case started at

the instance of the State a stranger had no right to apply to this Court in

revision when the Public Prosecutor had decided to withdraw from the

prosecution.

4. After hearing Mr.Pathak for the State of Rajasthan and

Mr.Sinha for the applicant, we have come to the conclusion that the

preliminary objection is well founded, and the applicant has no right to

apply to this Court in revision in the circumstances. In criminal cases, it

is the State which is in control of the proceedings, particularly where the

prosecution is launched at the instance of the State. In cases, therefore,



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011

xxxxx

Finally there is a deeper and indeed a fundamental reason for non

interference which turns upon the position of a private prosecutor in

prosecutions of cognizable offences. In our opinion, the private

prosecutor has no position at all in the litigation. The crown is the

prosecutor and the custodian of public peace and if if decides to let an

offender go, no other aggrieved party can be heard to object on the

ground that he has not taken his full toll of private vengeance. If,

therefore, in the present case, the Court has allowed the Public

Prosecutor to withdraw the case upon insufficient or improper grounds,

the local Government, is the only authority who can take action for the

correction of that error.

6. The present applicant is even in a worse position than a private

prosecutor, for he is in no way connected with these five cases. What he

claims is that as a member of the public and Secretary of an Association,

called Janta Kashta Niwarak Sangh, he is interested in seeing that

these cases, which involve embezzlement of public funds in three of them

and bribery in two, should be thoroughly investigated and the guilt or

innocence of the accused, three of whom hold important public offences,

should be established in a court of law. This desire of the applicant may

be commendable, but we are of opinion that it gives him no locus

standi to come to this Court in revision. We, therefore, hold that the

applicant has no locus standi to be heard by counsel. We also

intimated to the learned counsel for the applicant that we would only

hear him as amicus curiae.

xxxxx

(Emphasis supplied)



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.201153. There is another interesting aspect in the matter. In this case,

Aggarwal passed on copies of several bundle of documents relating to this

case, which were not certified copies of the original record from the Court.

This Court made a pointed query to him to disclose the source of receipt of

those documents, to which Aggarwal stated that somebody from the O/o

CBI had left those documents at his office. Although, no issue on this point

was joined by CBI, however, this clearly shows that an attempt on the part of

Aggarwal was made to have the possession of official documents without

following the process of law. This practice has been strongly depricated by

the Hon'ble Supreme Court in case reported as, (1998) Vol.VII SCC 273,

titled as, Dr.Duryodhan Sahu V/s Jitender Kumar Mishra, interalia

holding as under:

xxxxx

The other interesting aspect is that in the PILs documents are being

annexed without even indicating as to how the petitioner came to have

possession of them. In one case, it was noticed that an interesting

answer was given with respect to its possession. It was stated that a

packet was lying on the road and when out of curiosity, petitioner opened

it, he found the said papers. When such frivolous pleas to explain the

possession of the documents are taken, the Courts not only should

dismiss the petition, but also to impose exemplary costs. It is also

desirable for the Courts to freeze the frivolous petition and dismiss them

with costs as aforesaid, so that a message goes in the right direction that

petition filed with oblique motives do not have the approval of the

Courts.

xxxxx



33/73

RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011(Emphasis supplied)

54. Some of the other judgments, which are relevant on the aforesaid

point are as under.

55. In case reported as, 1976 (1) SCC 671 titled as, Jasbhai

Motibhai Desai V/s Roshan Kumar, the Hon'ble Supreme Court, held that

the application of a busybody should be rejected at the threshold in the

following terms:

xxxxx

37. It will be seen that in the context of locus standi to apply for a

writ of certiorari, an applicant may ordinarily fall in any of these

categories:

(i) person aggrieved

(ii) stranger

(iii) busybody or meddlesome interloper.

Persons in the last aggrieved are easily distinguishable from

those coming under first two categories. Such persons interfere in

things which do not concern them. They masquerade as crusaders for

justice. They pretend to act in the name of pro bono publico, though

they have no interest of the public or even of their own to protect. They

indulge in the pastime of meddling with the judicial process either by

force of habit or from improper motives. Often, they are actuated by a

desire to win notoriety or cheap popularity; while the ulterior intent of

some applicants in this category, may be no more than spoking the

wheels of justice. The High Court should do well to reject the

applications of such busybodies at the threshold.

xxxxx(Emphasis supplied)



34/73


56. Hon'ble Justice Krishna Iyer in case reported as, 1981 (1) SCC

568, titled as, Fertilizer Corpn. Kamgar Union (Regd.) V/s Union of

India in stronger terms stated:

xxxxx

48. If a citizen is no more than a wayfarer or officious intervener

without any interest or concern beyond what belongs to any one of the

660 million people of this country, the door of the court will not be ajar

for him.

xxxxx

(Emphasis supplied)

57. Even otherwise, State is the master of litigation, which controls

the proceedings, particularly in cases where prosecution is launched at the

instance of the State. Seeking withdrawal of the prosecution from the case is

within the domain of Executive and this Court, not vested with inherent

powers cannot allow private person to come and join the proceedings. A

word of caution in these type of cases has already been sounded by the

Hon'ble Supreme Court in a Constitution Bench judgment, reported as, 1987

(1) SCC 288, titled as, Sheonandan Paswan V/s State of Bihar, in para 90

whereof, it was held as under:

xxxxx

90. Section 321 Cr.P.C is virtually a step by way of composition of the

offence by the State. The State is the master of litigation in criminal

cases. It is useful to remember that by the exercise of functions under

Section 321 Cr.P.C, the accountability of the concerned person or



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011persons does not disappear. A private complaint can still be filed if a

party is aggrieved by the withdrawal of the prosecution, but running the

possible risk of a suit of malicious prosecution if the complaint is berefit

of any basis.

xxxxx

58. In another case, reported as, 1992 (4) SCC 653 (para 7), titled

as, Simranjit Singh Mann V/s UoI, the Hon'ble Supreme Court observed

as under:

xxxxx

7. .....We are, therefore, satisfied that neither under the provisions

of the Code nor under any other statute is a third party stranger are

permitted to question the correctness of the conviction and sentence

imposed by the Court after a regular trial.

xxxxx

(Emphasis supplied)

59. Further, in case reported as, 1981 Cr.L.J 219, titled as, Abdur

Karim V/s The State & Ors., the Hon'ble Kolkata High Court held as under:

xxxxx

In this connection, I may point out that though there is no direct

authority on the point, I am of the view that a private party has no locus

standi to move against an order of acquittal passed by the learned Judge

upon an application being made U/s 321 Cr.P.C to him by the Public

Prosecutor in a case which he was conducting. The language of Section

321 of the Code makes it quite clear that the matter is between the Public

Prosecutor and the Magistrate or the Judge concerned and a private



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011party has no right to interfere in such matters. Any Public Prosecutor

or Assistant Public Prosecutor in charge of a case may, with the consent

of the Court, at any time before the Judgment is pronounced, withdraw

from the prosecution of any person either generally or in respect of any

one or more of the offences for which he is tried. The Public Prosecutor

being the custodian of the public justice he is the only person who can

make an application for withdrawal and, if withdrawal is granted by the

court in the interest of administration of justice, no private party can

come up against the order of withdrawal.

xxxxx

60. In yet another judgment of the Hon'ble Supreme Court, reported

as, 1996 (11) SCC 582, titled as, All India Institute of Medical Sciences'

Employees Union V/s UoI, wherein the Employees' Union of AllMS had

filed a Writ Petition before the Hon'ble High Court of Delhi, interalia seeking

issuance of a Writ of Mandamus against Dr.S.K Kakkar for allegedly

committing cognizable offences punishable U/s 409 IPC, the Hon'ble High

Court refused to issue Mandamus. It was laid down that the Association had

the remedy of filing complaint case before the learned Magistrate having

jurisdiction to take cognizance of the offences, in case the police did not take

action on their complaint. The Association having not adopted the procedure

prescribed in the Cr.P.C, was not held entitled for Writ of Mandamus.

61. If the locus standi of Aggarwal and Gupta is judged on the anvil

of law laid down in the aforesaid judgments, then it would be apparent that



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011he/they cannot be permitted to participate in these proceedings as a matter of

right, particularly, when he/they could have taken recourse to the remedies

available to him/them under Cr.P.C in accordance with law. It is a matter of

fact that neither Aggarwal nor Gupta has any personal interest in the

litigation. They further do not have any legal capacity to appear before this

Court in opposition to this application. Their only interest in this opposition

appears to be curiosity, obtaining the glare of public and publicity, which are

not valid grounds to have locus standi . However, this Court is really

thankful to Aggarwal for rendering valuable assistance to this Court in

taking this Court through the evidence collected by the investigating agency.

The said assistance is deemed to have been rendered by him as Amicus

Curiae and not as a person having locus standi to participate in the

proceedings. Therefore, all the applications filed by Aggarwal in the

matter stand dismissed, including the last application, which was filed as late

as on 03.03.2011.

62. The matter does not end here. Now, this court will have to judge

the application from the point as to whether the learned Special Prosecutor

has exercised his executive function properly and examined the matter in its

entirety and has applied his mind in good faith and bonafide manner; as also

to examine the grounds taken for withdrawal of prosecution against Q.

Before that, it will have to be seen as to what is the requirement of law in this

regard.



38/73


63. The controversy in the present application revolves around

Section 321 of the Code of Criminal Procedure, 1973 which is being

reproduced herein below:

321. Withdrawal from prosecution:

The public Prosecutor or Assistant Public Prosecutor in charge of a

case may, with the consent of the Court at any time before the judgment

is pronounced, withdraw from the prosecution of any person either

generally or in respect of any one more of the offences for which he is

tried; and upon such withdrawal:

(a) If it is made before a charge has been framed, the

accused shall be discharged in respect of such offence or offences;

(b) If it is made after a charge has been framed, or when

under this code no charge is required he shall be acquitted in respect of

such offence or offences;

1. Provided that where such offence:

(i) Was against any law relating to a matter to which the

executive power of the Union extends, or

(ii) Was investigated by the Delhi Special Police

Establishment under the Delhi Special Police Establishment Act,

1946 (25 of 1946), of

(iii)Involved the misappropriation or destruction of, or damage to,

any property belonging to the Central Government, or

(iv) Was committed by a person in the service of the Central

Government while acting or purporting to act in the discharge of

his official duty, and the prosecutor in charge of the case has not



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011been appointed by the Central Government he shall not, unless he

has been permitted by the Central Government to do so, move the

Court for its consent to withdraw from the prosecution and the

Court shall, before according consent, direct the Prosecution to

produce before it the permission granted by the Central

Government to withdraw from the prosecution.

64. This particular Section has received scrutiny from the Hon'ble

Supreme Court of India in several cases. With a view to deduce the

requirement of law for consideration on application U/s 321 Cr.P.C, I wish to

refer to the precedents, which are as under.

65. In case reported as, AIR 1975 SC 389, titled as, State of

Bihar Vs. Ram Naresh Pandey, one Mahesh Desai was accused of

committing murder. Murder was stated to be committed in course of a riot

which resulted from difference between two rival trade union groups. An

application under Section 494 of the Code of Criminal Procedure 1898

(corresponding to Section 321 of the Code of Criminal Procedure 1973) was

filed by the Public Prosecutor seeking permission to withdraw from the

prosecution. Withdrawal was sought on the ground that on the evidence

available it would not be just and expedient to proceed with the prosecution of

Mahesh Desai. Trial Court granted permission for withdrawl. In revision, the

Session Judge also upheld the order of the Trial Court. In appeal, the Hon'ble

High Court reversed the order of the Trial Court on the ground that there



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011was exercise of no judicial discretion in the present case. Hon'ble Supreme

Court reversed the judgment of the High Court and affirmed the order of the

Trial Court granting permission to the prosecution to withdraw from the

prosecution of Mahesh Desai. It was inter alia observed as under:

xxxxx

The function of the Court, therefore, in granting its consent my well be

taken to be a judicial function. It follows that in granting the consent the

Court must exercise a judicial discretion. But it does not follow that the

discretion is to be exercised only with reference to material gathered by

the judicial method. Otherwise the apparently wide language of s.494

would become considerably narrowed down in its application. In

understanding and applying the section, two main features thereof have

to be kept in mind. The initiative is that of the Public Prosecutor and

what the Court has to do is only to give its consent and not to determine

any matter judicially. The judicial function, therefore, implicit in the

exercise of the judicial discretion for granting the consent would

normally mean that the Court had to satisfy itself that the executive

function of the Public Prosecutor has not been improperly exercised; or

that it is not an attempt to interfere with the normal course of justice for

illegitimate reasons or purpose.

xxxxx

66. Further in case reported as, (1972) 1 SCC 318, titled as, M.N.

Sankarayarayanan Nayar Vs. P.V.Balakrishanan, accused persons were

charged for offences under Section 467, 478, 420 read with Section 109 of

Indian Penal Code. An application was moved by the Public Prosecutor



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011seeking withdrawal from the prosecution of accused persons. Withdrawal

was sought on following grounds:

(i) No likelihood of case being successful.

(ii) Interest of public policy.

(iii) Subject matter of case decided in a civil suit.

(iv) Delay in trial.

(v) Securing evidence involves heavy expenses for State.

(vi) Case is of civil nature.

Ld. Sessions Court granted permission to the prosecution, as

prayed for. Order of Ld. Session Court was upheld by the Hon'ble High

Court as also by Hon'ble Supreme Court. In para 5 of the judgment, Hon'ble

Supreme Court observed as under:

5. Though the Section is in general terms and does not

circumscribe the powers of the Public Prosecutor to seek permission to

withdraw from the prosecution the essential consideration which is

implicit in the grant of the power is that it should be in the interest of

administration of justice which may be either that it will not be able to

produced sufficient evidence to sustain the charge or that subsequent

information before prosecution agency would falsify the prosecution

evidence or any other similar circumstances which it is difficult to

predicate as they are dependent entirely on the facts and circumstances

of each case. Nonetheless it is the duty of the Court also to see in

furtherance of justice that the permission is not sought on grounds

extraneous to the interest of justice or that offences which are offences

against the State go unpunished merely because the Government as a

matter of general policy or expediency unconnected with its duty to

prosecute offenders under the law, directs that public prosecutor to

withdraw from the prosecution and the Public Prosecutor merely does so



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011at its behest.

67. In case reported as, (1976) 4 SCC 250, titled as, State of Orissa

Vs. Chandrika Mohapatra, two appeals were decided by a common judgment.

In the first appeal withdrawal was sought on the ground that it would be

inexpedient to proceed with the case and that there was meager evidence

against the accused persons. Trial Court held that the first ground i.e,

inexpedient to prosecute was not a sufficient ground to permit prosecution to

withdraw from the prosecution. However, Trial Court agreed with the public

prosecutor that there was insufficient evidence against the accused persons

and thus granted permission for withdrawal. Hon'ble High Court set aside the

order of the Trial Court. Reversing the order of the Hon'ble High Court and

affirming the order of the Trial Court, in para 6, Hon'ble Supreme Court

observed as under:

xxxxx

6. It will, therefore, be seen that it is not sufficient for the Public

Prosecutor merely to say that it is not expedient to proceed with the

prosecution. He has to make out some ground which would show that

the prosecution is sought to be withdrawn because inter alia the

prosecution may not be able to produce sufficient evidence to sustain the

charge or that the prosecution does not appear to be well funded or that

there are other circumstances which clearly show that the object of

administration of justice would not be advanced or furthered by going on

with the prosecution. The ultimate guiding consideration must always

be the interest of administration of justice and that is the touchstone on

which the question must be determined whether the prosecution should

be allowed to be withdrawn.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011xxxxx

(Underlining emphasized)

68. Second case was result of a serious rivalry between two trade

unions in an industrial unit. Accused persons were charged for offences under

Sections 147, 148, 149, 307, and 324 of Indian Penal Code. Application for

withdrawal from prosecution of accused persons was filed by the public

prosecutor. Withdrawal was sought on the ground that since the date of

occurrence of the unfortunate incident, there was industrial peace and

harmony and that withdrawal would help maintain cordiality between rival

trade unions. Ld. Sessions Court granted the permission sought for. Hon'ble

Supreme Court upheld that order of the Ld.Session Court. In para 10 of the

judgment, Hon'ble Supreme Court observed as under:

xxxxx

10. We have already discussed the principles which should govern

cases of this kind where an application is made by the Public Prosecutor

for grant of consent to the withdrawl of prosecution under Section 494 of

the Criminal Procedure Code. We have pointed out that the paramount

consideration in all these cases must be the interest of administration of

justice. No hard and fast rule can be laid down nor can any categories of

cases be defined in which consent should be granted or refused. It must

ultimately depend on the facts and circumstances of each case in the

light of what is necessary in order to promote the ends of justice, because

the objective of every judicial process must be the attainment of justice.

Now, in the present case, the application made by the Public Prosecutor

clearly shows that the incident had arisen out of rivalry between two

trade unions and since the date of the incident calm and peaceful

atmosphere prevailed in the industrial undertaking. In these



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011circumstances, the State felt that it would not be conducive to the interest

of justice to continue the prosecution against the respondents, since the

prosecution with the possibility of conviction of the respondents would

rouse feelings of bitterness and antagonism and disturb the calm and

peaceful atmosphere prevailing in the industrial undertaking. We

cannot forget that ultimately every offence has a social or economic

cause behind it and if the State feels that the elimination or eradication

of the social or economic cause behind it and if the State feels that the

elimination or eradication of the social or economic cause of the crime

would be better served by not proceeding with prosecution, the State

should clearly be at liberty to withdraw from the prosecution. We are,

therefore, of the view that in the present case the learned Sessions Judge

was right in granting consent to the withdrawal of the prosecution and

the High Court was in error in setting aside the order of the learned

Sessions Judge.

xxxxx

69. In case reported as, AIR 1980 SC 1510, titled as, Rajender

Kumar Jain Vs. State ofBihar, 25 accused were charged for offences under

Section 121 A, 120 B Indian Penal Code read with Section 4,5, and 6 of the

Explosive Act. Application for withdrawal from prosecution was filed.

Withdrawal was sought on the following grounds:

i) Two accused were granted pardon by the Court

and were examined as approver under section 306 Sub

Section 4 Cr.P.C.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011ii) That out of 25 accused persons, two accused were

declared proclaimed offenders by the court.

iii) That in public interest and changed

circumstances, the Central Government has desired to

withdraw from the prosecution of all the accused

persons.

Learned Metropolitan Magistrate granted permission for

withdrawl. The Hon'ble Supreme Court affirmed the order of the learned

Metropolitan Magistrate. It was inter alia observed as under:

13. Thus, from the precedents of this Court; we gather,

1. Under the scheme of the Code prosecution of an offender for a

serious offence is primarily the responsibility of the Executive.

2. The withdrawal from the prosecution is an executive function of

the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the

Public Prosecutor and none else, and so, he cannot surrender

that discretion to someone else.

4. The Government may suggest to the Public Prosecutor that he

may withdraw from the prosecution but none can compel him to

do so.

5. The Public Prosecutor may withdraw from the prosecution not

merely on the ground of paucity of evidence but on other

relevant grounds as well in order to further the broad ends of

public justice, public order and peace. The broad ends of public

justice will certainly include appropriate social, economic and,



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011we add, political purposes Sans Tammany Hall enterprise.

6. The Public Prosecutor is an officer of the Court and responsible

to the Court.

7. The Court performs a supervisory function in granting its

consent to the withdrawal.

8. The Court's duty is not to reappreciate the grounds which led the

Public Prosecutor to request withdrawl from the prosecution but

the consider whether the Public Prosecutor applied his mind as

a free agent, uninfluenced by irrelevant and extraneous

considerations. The Court has a special duty in this regard as it

is the ultimate repository of legislative confidence in granting

or withholding its consent to withdrawal from the

prosecution.

We may add it shall be the duty of the Public Prosecutor to

inform the Court and it shall be the duty of the. Court to appraise itself

of the reasons which prompt the Public Prosecutor to withdraw from the

prosecution. The Court has a responsibility and a stage in

theadministration of criminal justice and so has the Public Prosecutor,

its 'Minister of Justice'. Both have a duty to protect the administration

of criminal justice against possible abuse or misuse by the Executive by

resort to the provisions of Section 321 Criminal Procedure Code. The

independence of the Judiciary requires that once the case has travelled

to the Court, the Court and its officers alone must have control over the

case and decide what is to. be done in each case.

We have referred to the precedents of this Court where it has

been said that paucity of evidence is not the only ground on which the

Public Prosecutor may withdraw from the prosecution. In the past we



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011have often know how expedient and necessary it is in the public interest

for the Public Prosecutor to withdraw from prosecutions arising out of

mass agitations, communal riots, regional disputes, industrial conflicts,

student unrrest etc. Wherever issues involve the emotions and there is a

surcharge of violence in the atmosphere it has often been fund necessary

to withdraw from prosecutions in order to restore peace, to free the

atmosphere from the surcharge of violence, to bring about a peaceful

settlement of issues and to preserve the calm which may follow the

storm.....

xxxxx

70. In case reported as, AIR 1983C 194, titled as, Sheonandan

Paswan Vs. State of Bihar, accused persons were charged for offences

under Secion 420, 466, 471, 109, 120 B Indian Peanl Code read with Section 5

(2) of Prevention of Corruption Act withdrawl from prosecution was sought

on following grounds:

i) Lack of prospect of successful prosecution.

ii) Implication of persons as a result of political and

personal vendetta.

iii) Inexpediency of prosecution for reasons of State

and Public Policy.

iv) Adverse affect that continuance of prosecution

will bring on public interest in the light of

changed situation.



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011Ld. Special Judge granted the permission sought for by the

prosecution. Revision filed by the appellant was dismissed by the Hon'ble

High Court. Majority judgment of the Hon'ble Supreme Court upheld the

order of learned Special Judge. It was interalia observed as under:

xxxxx

58. The next question' for examination is whether the permission

was given by the Special Judge in violation of law as laid down by this

Court in this regard. We have already referred to the decisions cited by

the appellant. The law laid down by this Court in the series of decisions

referred to above, inter alia, is (1) that the withdrawl from the

prosecution is an executive function of the Public Prosecutor and that

the ultimate decision to withdraw from the prosecution is his ; (2) that

the Government may suggest to the public prosecutor that a particular

case may not be proceeded with, but nobody can compel him to do so ;

(3) that not merely inadequacy of evidence, but other relevant grounds

such as to further the broad ends of public justice, economic and

political; public order and peace are valid grounds for withdrawal. The

exercise of the power to accord or withdraw consent b y the Court is

discretionary. Of course, it has to exercise the discretion judicially. The

exercise of the power of the court is judicial to the extent that the Court,

in according or refusing consent, has to see (i) whether the grounds of

withdrawl are valid; and (ii) whether the application is bona fide or is

collusive. it may be remembered that the order passed by the Court

under Section 321 of the Code, either according or refusing to accord

consent, it not appealable. A mere perusal of the impugned order of the

Special Judge shows that he has applied his mind to the facts of the case

and also applied his mind to the law laid down by this Court in George

Fernandes case that has summarised the entire law on the point, and



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RC No.1(A)/90 (CBI V/s Ottavio Quattrocchi) DOD: 04.03.2011correctly applied them to the facts of this case. It is therefore not correct

to say that the decision of the Special Judge was contrary to the law laid

down by this Court.

84..... The only guiding factor which should weigh with the public

prosecutor while moving the application for withdrawal and the court

according its permission for withdrawal is to see whether the interest of

public justice is advanced and the application for withdrawal is not

moved oblique motive unconnected with the vindication of cause of

public justice.

87. The Court while according the consent to the withdrawal has

only to see that the public Prosecutor has acted properly and has not

been actuated by oblique or extraneous considerations. it is not the

function of the Court to make a fresh appraisal of the evidence and

come to its own conclusion on the question whether there is a triable

issue to be investigated by the Court.

xxxxx

(Underlining emphasized)

71. Earlier decision of the Hon'ble Supreme Court in

Sheonandan's case (supra) was examined by a Bench of five Judges.

Majority judgment upheld the earlier decision. It was inter alia observed as

under:

xxxxx

45.....The judgment of a Public Prosecutor under Section 321 of the

Crimianl P.C 1973 cannot be lightly interfered with unless the Court

comes to the conclusion that he has not applied his mind or that his

decision is not bona fide.

67.....When an application under Section 321 Cr.P.C is made, it is not



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