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

- **Citation:** [1992] Supp. 1 S.C.R. 226
- **Court:** Supreme Court of India
- **Decided:** 1992-08-28
- **Case number:** Criminal Appeal No. E 304 of 1991
- **Bench:** S. Ratnavel Pandian, K. Jayachandra Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/janta-dal-etc-etc-v-h-s-chowdhary-and-ors-etc-etc-11611
- **Pages:** 71

## Headnote

Code of Criminal Procedure, 1973: Sections 397, 401, 482--Revisional
and inherent powers of High Court-Scope and ambit of-Single Judge of
High Court-Assumption of suo motu jurisdiction to quash FIR in Bofors
C case-Legality of
Constitution of India, 1950: Article 32-l'IL-Definition, concept and
purpose of-''Public interest", "litigation''-Construction-f'arameters for entertaining PIL-Whether possible to lay down-Locus standi of a pany-lmportance of-Locus standi in private action and PIL-Difference of-Petitions.in
D the garo of PIL by persons interested-Maintainability of
Words and Phrases: "Public interest'~ "litigation
1
~
11Public interest litigation-Meaning of
Public Interest Litigation-Definition, concept and purpose ofE Parameters for entertaining PIL-Whether possible to lay down-f'etitions in
the gariJ of PIL by persons interested-Maintainability of
F
G
Locus Standi-Significance in PIL and private action-f'etitions in the
garo of PIL by persons interested-Maintainability of
Swedish Radio on 16.4.1987 broadcasted that to win the contact
awarded on 24.3.1986 by the Government of India, Bofors of Sweden paid
bribes to senior Indian Politicians and Defence officials. On 17 .4.1987
some leading newspapers of India gave prominent coverage to the broadcast.
On 17.4.1987 the Swedish Radio claimed in its broadcast that it bad
documentary proof of the pay offs in four Instalments to Indian accounts
in Swiss Banks and It also checked with the bankers of Bofors.
Bofors denied paying any kickbacks to Indian politicians or omclals
H in its statement Issued on 17 .4:1987.
226
JANTA DAL v. HS. CHOWDHARY
227
On 17.4.1987 the Government of India also issued a statement A
denying the allegations contained in the news items based on the Swedish
Radio and Television broadcast, as false, baseless and mischievous;
The Minister of Defence on 2().4.1987 on the subject stated in the Lok
Sabha suo motu that the Bofors did not employ any Representative Agent
in India for the project. However, they used the services of a local firm B
only for administrative services, e.g. hotel bookings, transportation, for·
warding of letters, telexes etc. The Minister further stated that if any
evidence was produced involving violation of the law, thorough investiga·
lion would be taken and guilty would be punished. On 31.4.1987 he also
made similar statement in the Rajya Sabha.
C
On 20.4.1987, the than Prime Minister intervening in the debates in
the Lok Sabha assured the Members that if any evidence relating to the
involvement of middlemen, of pay-offs, bribes or commissions were shown,
then strong action would be taken and nobody would be allowed to go free.
Several Members of the Parliament demanded a probe with full
details by a Parliamentary Committee.
D
On 4.6.1987, the Swedish Embassy in India, forwarded a copy of a
part of the Report of the Swedish National Audit Bureau's (SNAB) dated E
1.6.1987. The rest of the Report was withheld by the Swedish Government
on the bank secrecy requirements. The Report did not disclose the names
of the recipients of kickbacks.
The tb~n Prime Minister discussed the report with the leaders of the
opposition parties on 11.6.1987. When the Government of India requested F
the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, to
set up on their own Join Parliamentary Committee (JPC), they declined.
The then Prime Minister in his meeting with the leader of the opposition
in Parliament on 17.6.1987 Indicated that in the Monsoon Session of Lok
Sabha. The Government would move for the motion for the appointment
ofaJPC to probe Into the Bofors deal. On29.7.1987, the motion was moved G
by the then Defence Minister. While moving the motion on 3.8.1987, be
stated that from the report of SNAB two fai ·' emerged, viz (I) that sizable
payments were made In 1986; and (II) that the particulars of !he recipients
of the amounts paid by Bofors were not disclosed. In justifica.tion of the
constitution of JPC, the Defence Minister st

## Text

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A
JANTA DAL ETC. ETC.
v.
H.S. CHOWDHARY AND ORS. ETC. ETC.
AUGUST 28, 1992
B
[S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.)
Code of Criminal Procedure, 1973: Sections 397, 401, 482--Revisional
and inherent powers of High Court-Scope and ambit of-Single Judge of
High Court-Assumption of suo motu jurisdiction to quash FIR in Bofors
C case-Legality of
Constitution of India, 1950: Article 32-l'IL-Definition, concept and
purpose of-''Public interest", "litigation''-Construction-f'arameters for entertaining PIL-Whether possible to lay down-Locus standi of a pany-lmportance of-Locus standi in private action and PIL-Difference of-Petitions.in
D the garo of PIL by persons interested-Maintainability of
Words and Phrases: "Public interest'~ "litigation
1
~
11Public interest litigation-Meaning of
Public Interest Litigation-Definition, concept and purpose ofE Parameters for entertaining PIL-Whether possible to lay down-f'etitions in
the gariJ of PIL by persons interested-Maintainability of
F
G
Locus Standi-Significance in PIL and private action-f'etitions in the
garo of PIL by persons interested-Maintainability of
Swedish Radio on 16.4.1987 broadcasted that to win the contact
awarded on 24.3.1986 by the Government of India, Bofors of Sweden paid
bribes to senior Indian Politicians and Defence officials. On 17 .4.1987
some leading newspapers of India gave prominent coverage to the broadcast.
On 17.4.1987 the Swedish Radio claimed in its broadcast that it bad
documentary proof of the pay offs in four Instalments to Indian accounts
in Swiss Banks and It also checked with the bankers of Bofors.
Bofors denied paying any kickbacks to Indian politicians or omclals
H in its statement Issued on 17 .4:1987.
226
JANTA DAL v. HS. CHOWDHARY
227
On 17.4.1987 the Government of India also issued a statement A
denying the allegations contained in the news items based on the Swedish
Radio and Television broadcast, as false, baseless and mischievous;
The Minister of Defence on 2().4.1987 on the subject stated in the Lok
Sabha suo motu that the Bofors did not employ any Representative Agent
in India for the project. However, they used the services of a local firm B
only for administrative services, e.g. hotel bookings, transportation, for·
warding of letters, telexes etc. The Minister further stated that if any
evidence was produced involving violation of the law, thorough investiga·
lion would be taken and guilty would be punished. On 31.4.1987 he also
made similar statement in the Rajya Sabha.
C
On 20.4.1987, the than Prime Minister intervening in the debates in
the Lok Sabha assured the Members that if any evidence relating to the
involvement of middlemen, of pay-offs, bribes or commissions were shown,
then strong action would be taken and nobody would be allowed to go free.
Several Members of the Parliament demanded a probe with full
details by a Parliamentary Committee.
D
On 4.6.1987, the Swedish Embassy in India, forwarded a copy of a
part of the Report of the Swedish National Audit Bureau's (SNAB) dated E
1.6.1987. The rest of the Report was withheld by the Swedish Government
on the bank secrecy requirements. The Report did not disclose the names
of the recipients of kickbacks.
The tb~n Prime Minister discussed the report with the leaders of the
opposition parties on 11.6.1987. When the Government of India requested F
the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha, to
set up on their own Join Parliamentary Committee (JPC), they declined.
The then Prime Minister in his meeting with the leader of the opposition
in Parliament on 17.6.1987 Indicated that in the Monsoon Session of Lok
Sabha. The Government would move for the motion for the appointment
ofaJPC to probe Into the Bofors deal. On29.7.1987, the motion was moved G
by the then Defence Minister. While moving the motion on 3.8.1987, be
stated that from the report of SNAB two fai ·' emerged, viz (I) that sizable
payments were made In 1986; and (II) that the particulars of !he recipients
of the amounts paid by Bofors were not disclosed. In justifica.tion of the
constitution of JPC, the Defence Minister stated that the Committee was H
"'
228
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A set up to get at the truth.
B
The JPC was constituted consisting of 20 elected members from Lok
Sabha and 10 from Rajya Sabha. Its Chairman was appointed on
28.8.1988. In the JPC five members were elected to fill the five vacancies
due to death, resignation and expiry of membership.
On 22.4.1988, the JPC submitted its report. According to It there was
no evidence to establish that the Bofors payment involved a violation of
any Indian Law and that there was no evidence of any other payment by
Bofors for winning the Indian Contract.
C
Even after the JPC Report. allegations of malpractices in the Bofors
deal were relently agitated with the change of Government, the CBI
registered a F.l.R. on 22.1.1990 and a case under section 120·B read with
sections 5(2), 5(l)(d) and 5(2)/5(1)(c) of the Prevention of Corruption Act,
1947 read with sections 409, 420, 468 and 471 of !PC against 14 accused.
I) Out of the 14 accused 3 were named. The rest 11 accused were stated in
general.
The CBI commenced its investigation against the 14 accused for
entering into a criminal conspiracy, for obtaining illegal gratification in
the form of money from Bofors through the agent/firms/companies/per·
E S\ffis; as motive or reward for such public servants who by corrupt or
illegal means or by otherwise dishonestly using their official position as
public servants for causing pecuniary advantage to themselves, Bofors, the
agents and others in awarding contracts to Bofors and for committing the
offences of criminal breach of trnst, cheating, forgery and using of forged
F
documents in such transaction.
The CBI filed au application before the Special Judge requesting to
issue a letter rogatory/request to Switzerland urgently for getting the
necessary assistance so that the Investigation could be conducted in Switzerland lest important and relevant evidence would remain uncollected
G and the cause of justice would be frustrated.
The Special Judge allowed the application. The Cantonal Court of
Geneva returned the letter of rogatory for compliance of certain procedural formalities.
H
Respondent No. 1 filed a criminal miscellaneous case before the
JANTA DAL v. H.S. CHOWDHARY
229
Special Court under Article 51-A of the Constitution of India, praying not A
to issue any rogatory, letter on the formal request of CBI, and to permit
him to join the inquiry in the capacity of public interest litigant.
The Special Judge dismissed the petition of the respondent No. 1 and
issued Note of Compliance and Amended Letter of rogatory, against which
the respondent No. I filed a criminal revision before the High Court, under B
Sections 397/482 of the Code of Criminal Procedure, 1973.
During the hearing of criminal revision of the respondent No. 1,
several applications seeking linpleadment, intervention· were filed by
various political parties and others.
As the High Court did not accept the prayers of the lnterveners, a
special leave petition (Criminal) was filed before this Court; This Court
directed the High Court to dispose of the pending criminal revision by
bearing the parties, including the interveners.
The High Court dismissed the Criminal revision and intervention
applications holding that the respondent No. 1 had no locus standi to file
the revision and the revision was not maintainable; that the appellants had
c
no right to be impleaded; that the Special Judge should not have taken
cognizance of the FIR filed by the CBI as it was in violation of the E
provisions of Section 154; that the Special Jndge bad no jurisdiction ta
entertain request for issuance of letter of rogatory; that the CBI was not
a legally constituted force which is to be entrusted with the investigation
and that the investigation on the face of it was biased and inRuenced by
outside agencies.
All these present criminal appeals and writ application were filed
before this Court against the High Court's judgment.
F
'flte 11ppellants contended that the respondent No. 1 did not have any
locus standi to initiate PIL; that the respondent No. 1 did not satisfy the
definition of PIL; that be was acting as a proxy under the mask of public G
interest litigant for the benefit of all the real accused; the Union of India
contended that very litigation itself was not within the deRnltion of PIL
and that respondent No. 1 had no locus standi to approach the Court by
Oiling the petition under Sections 397 and 482 of the Code of Criminal
Procedure.
H
A
B
230
SUPREME COURT REPORTS (1992] SUP!'. 1 S.C.R.
The respondent No. 1 submitted that as in the present case he had
espoused only real public interest and therefore his right of locus standi
could not be questioned that the very registration of the case smacked of
pblitical veodeotta.
Disposing of the cases, this Court,
HELD : 1.01. Under Section 397, the High Court possesses the
general power of superintendence over the action of Courts subordinate to
it which the discretionary power when administered on administration
side, is known as the power of superintendence and on the judicial side as
C the power of revision. lo exercise of the discretionary powers conferred on
the High Court under the provisions of this Section, the High Court can,
at any stage, on Its own motion, If It so desires and certainly when
illegalities and irregularities resulting lo injustice are brought to its notice,
call for the records and exami111e them. (286 F-G]
D
E
F
G
1.02.By virtue of the po•ver under Section 401, the High Court can
examine the proceedings of lnforlor Courts If the necessity for doing so is
brought to its notice In any m,anoer, namely, (1) when the records have
been called for by Itself, or (2) when the proceedings otherwise comes to
its knowledge. [287·B)
1.03. Tbe object oftbe revlsiooaljurlsdlction under Section 401 ls to
confer power 1!pon superior criminal Courts - a kind of paternal or
supervisory jurisdiction - in ord1ir to correct miscarriage of justice arising
from misconception of law, irnogularity of procedure, neglect of proper
precaution or apparent harshmess of treatment which has resulted, on the
one hand, or on the other hand In some underserved hardship to in·
dlviduals. The controlling pow1er of the High Court is discretionary and It
must be exercised in the Inter-est of justice with regard to all facts and
circumstances of tlacb partlcubir case, anxious attention being given to the
said facts and circumstances." hlch very greatly from case to case.
[287 C·D]
1.04. Section 482 deals wiith the lnberent powers of the High Conrt.
The rule of inhtlr-ent powers ha• its source In tbe maxim "Quadolex aliquid
alicui concedit, concedere videtuT id sine quo ipsa, ess uon potest" which
mea11s that whim the law gives unytbin& to anyone, it gives also all those
H things withontwhich ti1e thing itself could not exist. [287-E]
JANTADAL v. H.S. CHOWDHARY
231
1.05 .. The criminal Courts are clothed with inherent power to make A
such orders as may be necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do
real and substantial justice for the administration of which alone the
Courts exist. The powers possessed by the High Court under Section 432· B
or the Code are very wide and the very plenitude of the power requires
great caution in Its exercise. Courts must be careful to see that its decision
in exercise of this power is based on sound principles. [287 F·G]
. 1.116. Thus, the inherent power under Section 482 can be exercised by
the Hlgh Court (1) to give elJect to any order passed under the Code; or C
(2) to prevent abuse or the process or any Court; or (3) otherwise to secure
the ends or justice. [288-E]
1.07. This inherent power conferred by Section 482 of the Code
should not be exercised to stifle a legitimate prosecution. The High Court D
being the highest Court or a State should normally refrain from giving a
premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence bas not been collected and
produced before the Court and the issues involved whether factual or legal
are or great magnitude and cannot be seen in their true perspective without
sufficient material. or course, no bard and fast rule can be laid down in E
regard to the cases in which the High Court will exercise its extraordinary
jnrisdiction of quashing the proceedings at any stage. [288-H, 299-A]
Emperor v. Nazir Ahmad, AIR 1945 PC 18, 22; Lala Jai Ram Das v.
Emperor, 1945 (47) Born. L.R. 634 (PC); Dr. Raghubir Sharan v. The State F
of Bihar, (1964] 2 SCR 336; Ta/ab Hazi Hussain v. Madhukar Pushottam
Mondkar and Another, (1958) SCR 1226; Pampapathy v. State of Mysore,
(1966] Supp SCR 477; Madhu Limaye v. State of Maharashtra, AIR 1978
SC 47- [1978) 1 SCR 749; Khushi Ram v. Hashim and Ors., AIR 1959 SC
542; State of Orissa v. Ram Chander Aggarwala, AIR 1979 SC 87· [1979) 1 G
SCR 1114 and State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., [1990]
3 Supp. SCR 256, relied on,
Rattan Singh v. State of Maharashtra, 1977 Cri. L,J. 673; Mohammad
v. State of Kera/a, 1982 Crl. L.J.1120 and Range Forest Officer, Sirsa and
Others v. Anand Venkataraman Hegde, 1978 Crl. L.J. 1374, distinguished.
H
232
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
Connelly v. D.P.P., 1964 A.C. 1254; D.P.P. v. Humphrys, 1977 A.C.I;
Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18; R. V. Metropolitan Police
Commissioner, (1968) 1 All E.R. 763 at 769; Jehan Singh v. Delhi Administra·
tion, (1974] 3 SCR 794; Kurukshetra University and Another v. State of
Haryana, AIR 1977 SC 2229 = (1977) 4 SCC 451; State of Bihar and
B Another v.J.A.C. Saldanha and Others, [1980) 1 SCC 554; Eastern Spinning
Mills Virendra Kumar Sharda and another v. Shri Raj iv Poddar and Others,
AIR 1985 SC 1668; State of Haryana v. Ch. Bhajan Lal, (1990) 3 Supp. SCR
259; Jasbhai Motibhai Desia v. Roshan Kumar, (1976) 3 SCR 58; Amar Nath
v. State of Haryana, (1977) 4 SCC 137; State of Bihar v. V.P.Shanna, (1991)
1 Scale 539; Maneckji v. Union of India, (1980) 86 Crl. W. 258; Ram Lal
C Yadav v. State of U.P., (1989) 95 Crl.LJ. 1013 (thus decision over-ruled
Prashant Gaur v. State of U.P., 1988 All. W.C. 828 and Puttan Singh v. State
of U.P., 1987 All W 599, referred to.
1.08. The High Court bas taken an extreme view that 'the Court can
take judicial notice of any illegality being committed by any Court, with a
D view to prevent the injury being caused to the known or unknown aggrieved
party', even when the investigation is at its threshold. The very sentence is
indicative of the fact that the learned Judge in order to protect any possible
injury that might be caused either during the investigation or on the
culmination of the criminal proceedings to the known or unknown aggrieved
E party bas determined to take suo motu cognizance and proceed with the
matter, by virtually stepping ·into the shoes of the accused partles both
present and prospective. [286 B·CJ
F
1.09. It shocks judicial conscience that Mr. Justice M.K. Chawla
before whom no aggrieved or affected Jlllrty had come challenging the FIR,
bas taken suo motu action and recorded such a categorical assertion that
'no offence' thereby meaning much/ess a cognizable offence is made out in
the FIR. [295-F]
1.10. Once an Investigation by the police Is ordered by a Magistrate
G under Section 156(3) of Code, the Magistrate cannot place any lhnitations
or direct the officer conducting it as to how to conduct the investigation.
Mr. Justice M.K. Chawla, bas overstepped bis jurisdiction and made the
statement which is unwarranted and uncalled for. [295-H)
Ninnaljit Singh Hoon v. State of West Bengal, (1973) 3 SCC 753, relied
H on.
JANTA DAL v. H.S. CHOWDHARY
233
1.11. The Court agreeing with the first part of the order dated A
19.12.1990 of the High Court, quashes the later part of the impugaed order
taking suo motu cognizance under Section 397, 401 read with Section 482
of the Code issuing show-cause notice to the CBI and the State.
2.01. Basically the meaning of the words 'Public Interest' is defined
as the common well being also public welfare.
B
Oxford English Dictionary, 2nd Edition, Vol. XII, Shrouds Judicial
Dictionary, Vol. 4 IV Edition; Black's law Dictionary, Sixth Edition, referred
to. [258-D]
2.02. The expression 'litigation' means a legal action including all C
proceedings therein, initiated in ~ Court of Law with the purpose of
enforcing a right or seeking a remedy. [259-B]
2.03. Lexically the expression 'PIL' means a legal action initiated in
a Court of Law for the enforcement of public interest or general interest D
in which the public or a class of the community have pecuniary interest or
some interest by which their legal rights or liabilities are affected. [259·C]
2.04. The concept of PIL which has been and is being fostered by
judicial activism has become an increaingly important one setting up
valuable and respectable records, especially in the arena of constitutional E
and legal treatment for 'the unrepresented and under-represented'.
(260-B]
2.05. The definition of PIL emerged from historical context in which
the commonality of the various forms of legal representation involving the
basic and fundamental rights of a significant segment of the public F
demanding vindication of its rights has been recogaised in various parts
of the world. (260-FJ
P.N. Bhagwati: "Social Action Litigation: The Indian Experience • vide
'Role of the Judiciary in Plural Societies"Published in 1987, referred to.
Mumbai Kamgar Sabha v. Abdulbhai, (1976] 3 SCC 832; Fenilizer
Corporation Kangar Union v. Union of India, [1981] 2 SCR 52 =AIR 1981
SC 344 and S.P. Gupta v. Union of India, AIR 1982 SC 149, relied on.
G
2.06. Though it is imperative to lay down clear gaidelines and
propositions; and outline the correct parameters for entertaining a Public H
234
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
A
Interest Litigation - particularly on the issue of locus standi yet no hard
and fast rules have yet been formulated and no comprehensive guidelines
have been evolved. There is also one view that such adumberation is not
possible and it would not be expedient to lay down any general rule which
would govern all cases under all circumstances. [262·H, 263-A)
B
2.07. The requirement of locus standi of a party to a litigation is
mandatory; because the legal capacity the party to any litigation whether
In private public action in relation to any specific remedy sought for bas
to be primarily ascertained at the threshold. [263·B)
C
2.08. The traditional syntax of Ia--: in regard to locus standi for a
specific judicial redress, sought by an individual person or determinate
class or identifiable group of persons, is available only to that person or
class or group of persons who has or have suffered a legal injury by
reasons of violation of his or their legal right or a right legally protected,
D the invasion of which gives rise to actionability within the categories oflaw.
In a private action, the litigation is bipolar; two opposed parties are locked
in a confrontational controversy which pertains to the determination of
the legal consequences of past events unlike in public action. The character
of such litigation Is essentially that of vindicating private rights, proceed·
logs being brought by the persons in whom the right personally inbers or
E their legally constituted representatives who are thus obviously most competent to commence the litigation. [263 D·H)
2.09. The strict rule of locus standi applicable to private litigation is
relaxed and a broad rule is evolved which gives the right of locus standi to
F any member of the public acting bona fide and having sulTcient interest in
Instituting an action for redressal of public wrong or public injury, but
who is not a mere busy body or a meddlesome interpolar; since the
dominant object of PIL is to ensure observaoce of the provisions of the
Constitution or the law which can be best achieved to advance the cause
of community or disadvantaged groups and individuals or public interest
G by permitting any person, having no personal gain or private motivation
or any other oblique consideration but acting bona fide and having sufficient Interest in maintaining an action for judicial redress for public injury
to put the judicial machinery in motion like actio popularis of Roman Law
whereby any citizen conld bring such an action in respect of a pnblic dellct.
H
[263 F-Hl
••
JANTADAL v. H.S. CHOWDHARY
235
2.10. Though in our country, it is recognised a departure from the A
strict rule of locus standi as applicable to a person in private action and
broadened and liberalised the rule of standing and thereby permitted a .
1Dember of the public, having no personal gain or oblique motive to
approach the court for enforcement of the constitutional or legal rights of
socially or economically disadvantaged persons who on account of their B
poverty or total ignorance of their fundamental rights are unable to enter
the portals of the courts for judicial redress, yet no precise and inflexible
working definition has been evolved in respect of locus stand; of an in·
dividual seeking judicial remedy and various activities in the field of PIL.
[265 F·G]
2.11. In defining the rule of locus standi no 'rigid litmus test' can be
applied since the broad contours of PIL are still developing a pace seem·
ingly with divergent views on several aspects of the concept of this newly
developed law and discovered jurisdiction leading to a rapid transforma·
lion of judicial activism with a far reaching change both in the nature and
c
form of the judicial process. [265-H)
D
2.12. This summit Court has widely enlarged the scope of PIL by
relaxing and liberalising the rule of standing by treating letters or petitions
sent by any person or association complaining violation of any fundamen·
tal rights and also entertaining Writ petitions filed under Article 32 of the E
Constitution by public spirited and policy oriented activist persons or
journalists or of any organisation rejecting serious challenges made with
regard to the maintainability of such petitions rendered many vlrtuoslc
pronouncements and issued manifold directions to the Central and the
State Governments, all local and other authorities within the territory of
India or under the control of the Government of India for the betterment F
of the public at large in many fields in conformity with constituilonal
prescriptions of what constitutes the good life in a socially just democracy.
People's Union for Democratic Rights and others v. Union of India and
Others, [1982) 3 SCC 235; Bandhua Mukti Morcha v. Union of Inma & Ors., G
[1984] 2 SCR 65 at 159; Sheela Barse v. Union of India and others, [1988]
4 SCC 226; S.P. Gupta v. Union of India, [1981] (Supp.) SCC 87 at 210;
Durayappah v. Fernando, [1967] (2) All ER 152 (PC) = 1967 (2) AC 337;
Data Processing Service v. Comp, 397 US 150 = 25 L Ed 2d 184; F/ast v.
Cohen, 392 US 83 = 20 L Ed 2d 947 (1968); Office of Communication of
the United Church of Christ v. FCC, US App De 328; U.S. v. Richardson, 418, H
236
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
A
US 166; Walth v. Seldin, 422 US 490; Attorney General (on the relation of
MC Whirter) v. Independent Broadcasting Authority, [1973] 1 All ER 689; R
v. Greater London Council, [1976] 3 All ER 184; Gouriet v. Union of Post
Office Workers and Others, [1977] 3 All ER 70; Sunil Batra (II) v. Delhi
Administration, [1980] · 3 SCC 488; Dr. Upendra Baxi (I) v. State of UP.,
B
[1983] 2 SCC 308; Miss Veena Sethi v. State of Bihar and Others, [1982] 2
SCC 583; Olga Tellis v.Bombay Municipal Corporation, [1985] 2 Supp. SCR
51 = [1985] 3 SCC 545; Ramsharan Autyanuprasi v. Union of India, [1989]
Supp. 1 SCC ·251; Akhil Bharatiya Soshit Karamchari Sanga (Railway)
represented by its Assistant General Secretary on behalf of the Association v.
Union of India, AIR 1981 SC 298; National Textile Workers' Union etc. v.
C P.R. Ramkrishna & Others, [1983] 1 SCR 922; A.R. Antulay v. Ramdas
Sriniwas Nayak, [1984] 2 SCC 500; D.S. Nakara v. Union of India, AIR 1983
SC 130; P.Na//a 1hampy 1hera v. Union of India, AIR 1984 SC 74; Rural
Litigation and Entidement Kendra, Dehradun & Others v. State of U.P. &
Others, [1985]' 2 SCC 431 and Kurukshetra University and another v. State
D of Haryana, [19771 4 sec 451, referred to.
2.13. While this Court has laid down a chain of notable decisions
with all emphasis at their command about the importance and significance
of this newly developed doctrine of PIL, it has also hastened to sound a
red alert and a note of severe warning that courts should now allow its
E
process to be abused by a mere busybody or a meddlesome interpolar or
wayfarer or official intervener without any interest or concern except for
personal gain or private profit or other oblique consideration.
S.P. Gupta v. Union of India, [1981] Supp. 87. State of H.P. v. Parent
F of a Student, [1985] 3 SCC 169; Sachidananda pandey v. State of West
Bengal, [1987] 2 SCC 295, 331;Autyanuprasi v. Union of India, [1989] Supp
1 SCC 251; Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2 SCR
65; Jasbhai Desai v. Roshan Kumar, [1976] 3 SCR 58; Fertilizer Corporation
Kamgar Union v. Union of India, [1981] 2 SCR 52; Chhetriya Pardushan
Mukti Sangharsh Samiti v. State of UP., [1990] 4 SCC 449; Union Carbide
G Corporation and Others v. Union of India and Others, [1991] 4 SCC 584 at
610 and Subhash Kumar v. State of Bihar & Ors., [1991] 1 SCR 5, referred
to.
2.14. Only a person acting bona fide and having sufficient Interest in
H the proceeding of PIL will alone have a locus standi and can approach the
JANTA DAL v. H.S. CHOWDHARY [P ANDIAN, J.]
237
Court to wipe out the tears of the poor and needy, suffering from violation of A
their fundamental rights, but not a person for personal gain or private profit
or political motive or any oblique consideration. Similarly, a vexations peti·
tion under the colour of PIL brought before the Court for vindicating any
personal grievance, deserves rejection at the threshold. [280-C]
2.15. In the instant case, the respondent-chowdbary appears to be B
very much concerned with the personal and private interest of the accused
in the criminal case and there is absolutely no involvement of public
interest. Can it be said that this litigation is in the nature of PIL to
vindicate and effectuate the Public interest? The emphatic answer would
be 'Not even a single ray of the characteristic of public interest litigation C
is visibly seen'. He has no locus standi at all to file the petitions. [284-C]
2.16. In the earlier Order having held that respondent No. 1 bas no
locus standi to file the petition or to invoke the revisional or extraordinary
inherent jurisdiction of the High Court under Sections 397 and 482 of the
Code of Criminal Procedure resp<ctively and that the petition under D
Article 51-A of the Constitution cannot come within the true meaning and
scope of Public Interest Litigation, dismissed the application• of the
interveners. [284 F-G]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. E
304 of 1991 etc. etc.
From the Order dated 17.12.1990 of the Delhi High Court in Criminal
Misc. No. 2656of1990 in Criminal Miscellaneous Main No.1821of1990.
Anand Dev Giri, Solicitor General, Altaf Ahmad, Addi. Solicitor
General, Ram Jethamalani, K.G. Bhagat, P.S. Potty, Prashant Bhushan,
Jayant Bhushan, Ms. Deepa Bhushan, P.K. Dey, Ms. Lata Krishnamurti,
M.N. Shroff, Ms. A. Subhashini, A. Sobba Rao, Ashok Bhan, Ms. Anil
Katiyar, P.N. Bhan, R.K. Dixit, A.M. Khanwilkar, AK. Khare, Ms. Kamini
Jaiswal, P.K. Manohar and R. Sasiprabhu for the appearing parties.
Nalla Thampy Thera petitioner-in-person.
The Judgment of the Court was delivered by
F
G
S. RATNAVEL PANDIAN, J. We gave our conclusions in our earlier
Order dated 27th August 1991 reserving the reasons to be given later. H
238
SUPREME COURT REPORTS (1992] SUPP.1 S.C.R.
A Accordingly, we render our reasons in the present judgment.
We feel that a prefatory note, though not the detailed facts of the
case, is necessary for disposal of these appeals and writ petition. The facts
culled out from various documents placed before this court are as follows:
B
The Ministry of Defence, Government of India approved in August
1980 a proposal forwarded by Army Headquarters (HQ) recommending,
inter-alia, the introduction of 155 mm calibre medium gun both towed and
self-propelled to meet its defence operational requirements. The choice for
obtaining the. said gun system/guns was short listed in December, 1982 to
C (1) Mis Sofma of France (2) Mis A.B. Bofors of Sweden (briefly called
'Bofors') (3) Mis International Military Services of U.K. and (4) Mis Yoest
Alpine of Austria. In November 1985, there was a further shortlisting of
Sofma and Bofors. Fmally, the order was placed by the Government of
India with Bofors on 24th March 1986 for the supply of 410 numbers (400
plus 10 free) of 155 mm Field Howitzer 77-B gun system/spare guns vide
D contract No. 6(9)/84/D (GS-IV) for a total amount of SEK 8410.66 million
(Swedish Kroners) (equivalent to about Rs. 1437.72 crores or Rs. 14377.2
million). The related contract for supplying the gun package (towed) and
other related agreements/contracts were concluded and signed on 24th
March 1986 with Mis A.B. Bofors.
E
F
On 17 April, 1987, .some leading newspapers of our country gave
prominent coverage to a Swedish Radio Broadcast made in the previous
day, broadcasting that bribes had been paid to senior Indian politicians and
key Defence figures to win the contract awarded by the Government of
India to M/s. Bofors of Sweden on 24 March, 1986.
The Swedish Radio repeated the allegation on 17 April, 1987 claiming that it had documentary proof of the payoffs in four installments to
Indian accounts in Swiss Banks and it had checked with Skandinaviska
Enskilds Banken, the bankers for Bofors. On the other hand, Bofors denied
G paying any kickbacks to Indian politicians or officials for the deal involving
the supply of 155 mm Towed howitzers and also issued a statement on 17th
April 1987, itself which statement reads thus:
"AB Bofors has not paid, or conspired to pay, any bribes
in connection with the order. All allegations to the conH
trary are hereby categorically denied."
JANTADAL v. H.S.CHOWDHARY[PANDIAN,J.]
239
The Government of India on 17th April 1987 issued a statement A
denying the allegations contained in the news items based on the broadcast
report, made by the Swedish Radio and Television in connection with the
arms order placed on Swedish firm, Bofors and categorized the news item
as false, baseless and mischievous. The part of the said statement reads
thus:
"Government's policy is not to permit any clandestine or
irregular payments in contracts. Any breach of this policy
by any one will be most severely dealth with."
B
On 20th April, 1987, the Minister of Defence (Shri K.C. Pant) made C
a suo-motu statement on the subject in Lok Sabha stating inter-alia that on
tbe eve of finalising \he contract, in response to a reiteration of
Government's policy and a demand for confirmation, M/s Bofors had
replied, vide their letter of the 10th March, 1986 that they did not employ
any Representative/Agent in India for the project: However, for administrative services, e.g. hotel bookings, transportation, forwarding of D
letters, telexes etc., they use the services of a local firm.
The Defence Minister further stated that "if any evidence is produced
involving violations of the law, the matter will be thoroughly investigated
and the guilty, whoever they may be punished."
A similar statement was made by the Minister of State for Defence
in Raj ya Sabha on 21st April, 1987:
This issue created a storm of controversies both in the Lok Sabha ·
and Rajya Sabha. Several issues were raised by the members in the respective Sabhas relating not only to the alleged kickbacks paid by M/s Bofors
for winning the contract but also about the quality and suitability of the
gun selected for procurement.
On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister
intervening in the debates in the Lok Sabha stated:
" .......... And like Panditji has said now, you show us any
evidence, we do not want proof. We will bring the proof.
You show us any evidence that there has been involvement
of middlemen, of payoffs or of bribes or commissions, we
will take action and we will see that nobody however
E
F
G
H
A
B
c
240
SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.
high-up is allowed to go free."
The then Defence Minister following the assurance made by the then
Prime Minister stated:
"The Prime Minister has already intervened on a number
of occasions and has said that there are no charges at the
moment and if evidence is asked fonhen we shall look
into it. We shall inquire into it and if somebody is found
guilty ·we will punish him. This is the essence of what
Members have been asking."
During the course of the discussion in Rajya Sabha and Lok Sabha,
several members demanded a probe with full details by a Parliamentary
Committee. When the matter stood thus on 4th June 1987, the Swedish
Embassy in India, forwarded a copy of the Report dated !st June 1987 of
the Swedish National Audit Bureau (SNAB for short) with a note to the
D Ministry of External Affairs, Government of India, stating that what was
made available to the Government of India was only one part of the Report
of SNAB but not report in its entirety and the rest was withheld by the
Govermnent of Sweden on the bank secrecy requirements. The summary
of the observations of the SNAB as extracted in the report of the JPC are
E
F
as follows:
" ..... that an agreement exists between AB Bofors and
.............. "' concerning the settlement of commission subsequently to the FH 77 deal; and
- that considerable amounts have been paid subsequently
to, among others, AB Bofors' previous agent in India.
11
(*Names not disclosed)
However, the rep0rt did not disclose the names of the recipients of
G kickbacks as indicated above.
This report of the SNAB (Swedish National Audit Bureau) was
discussed by the then Prime Minister with the leaders of the opposition
parties on 11 June, 1987. The Government decided to request the Speaker,
Lok Sabha and the Chairman of the Rajya Sabha to set ap a Joint
H
Parliamentary Committee (hereinafter referred to as 'JPC') to enquire into
,
.I<
'
'I
JANTADAL v. H.S. CHOWDHARY[PANDIAN,J.]
241
and establish the identities of the persons who received the payments. But A
the Speaker and the Chairman of the respective Sabhas declined to set up
on their own the JPC to probe into the Bofors deal. Thereupon, the then
Prime Minister during his meeting with the leader of the opposition in
Parliament on 17 June, 1987 indicated that the Government would move a
motion in the Monsoon Session of Lok Sabha for the appointment of a B
Parliamentary Committee to probe into the Bofors deal. Accordingly, the
Minister of Defence (Shri K.C. Pant) moved a motion on 29th July 1987 in
the Lok Sabha for appointment of the JPC. While moving the motion, the
Minister on 3rd August 1987 after recalling the whole sequence of events
stated inter-alia as follows:
"Two facts emerged from a careful study of the Report of
the Swedish National Audit Bureau. These are, firstly, that
sizable payments were made in 1986. It would also be seen
that the most crucial portion of the Report, which contains
particulars of the recipients of the amounts paid by
Bofors, have not been disclosed to us.
11
Further in justification of the constitution-of JPC, the Defence Minister added that "That Government has nothing to hide. The Government
wants to get at the truth and that is why this Committee has been set up."
Therefore, certain substitute motions were moved by the Parliament
Members and ultimately after a discussion in both the houses, the JPC was
constituted with the appointment of its chairmain on 28.8.88 totally consisting of 30 elected members - 20 from Lok Sabha and 10 from Rajya Sabha
for making the inquiry into the following matters:
(i) Whether the procedures laid down for the acquisition
of weapons and systems, were adhered to in the purchase
of the Bofors' gun;
c
D
E
F
(ii) to ascertain the identity of the persons who received,
G
and the purpose for which they received, payments of the
following amounts:
(a) SEK 170-250 million
(b) SEK 29 .5 million
H
242
A
B
c
SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.
( c) SEK 2.5 million
from M/s Bofors (as referred to in. the Report of the
Swedish National Audit Bureau, received by the Government of India on June 4, 1987);
(iii) arising out of the enquiry, if there is prima facie
evidence that M/s Bofors have in addition to payments
mentioned in (ii) above, made any other payments for
securing the Indian contracts, the identity of the persons
who received such payments shall be ascertained;
(iv) to determine if any Indian laws/rules/regulations have
been violaied either by M/s Bofors or. by persons as
indicated in (ii) and (iii) above.
Of the elected members, two members by name Shri Mahabir prasad
D and Smt. Sumati Oraon resigned w.e.f. 16.3.1988. One other member, Dr.
KG. Adiyodi died and three other members of the Committee ceased to
be members of the Committee consequent on their retirement from Rajya
Sabha w.e.f. 2.4.1988. In place of the members, who resigned and a member
who died, these other members from the Lok Sabha were elected.
E
The JPC submitted its report on 22nd April 1988 with its conclusion,
the resultant portion of which reads as follows:
(i) to (xii) ............................... .
(xiii) That there is no evidence to establish that the Bofors'
F
payment totaling SEK; 319.4 million involved a violation
of any Indian law.
·
(xiv) There is no evidence of any other payment having
been made by Bofors for winning the Indian contract."
G
One of the Members gave his note of dissent disagreeing with th•
conclusions of the Committee.
Para 7.176 of the Report of JPC reads as follows:
"7.176. The Committee note that during discussions, in
H
September, 1987 with the Government of India team, the
(i)
(ii)
(iii)
JANTA DAL v. H.S. CHOWDHARY [PANDIAN, J.J
Bofors officials gave the following information regarding
the names of Companies and details of payments made to
them by way of winding- up charges:-
SVENSKA INC. PANAMA
- SEK 188.4 million
MORESCO/MOINEAO
- SEK 81 million in
243
three
S.A. (PITCO) Geneva
instalments of SEK 37 million,
SEK 12 million and SEK 32
- million.
A.E. SERVICES Ltd., U.K.
SEK 50 million"
A
B
It is further seen from the Report of the JPC that Mr. Lars Gotblin, C
Chief Jurist and Senior Vice-President of the Noble Industries was examined by the JPC and during the examination his attention was drawn to
a statement of Mr. Thunbolm, Chairman of the Noble Industries, which is
the holding company of M/s AB. Bofors that so fll! as be was aware,
payments had been made to Indians or to an Indian company in connection D
with the contract. Of course, the Chief Jurist finding himself in a piquant
situation, said that the words of Dr. Thunbolm were twisted. (Vide paras
7.41 and 756 of the Report of JPC).
In spite of the conclusion in the Report of the JPC, allegations of
malpractices in the deal with Bofors, payments of kickbacks and receipt of E
illegal gratification were persistently reiterated and the matter was relently
agitated. Meanwhile, there was a change of Government. In the aforesaid
circumstances, the Superintendent of Police, CBl/DSPE/ACU-IV, New
Delhi registered a First Information Report on 22nd January 1990 in Crime
No.