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IN

Synopsis and List of Dates

The present case arises out of what is commonly referred to as the ‘Bofors

Scam’, which involved the purchase for the Indian Army of four hundred 155mm

FH 77-B guns, equipment, ammunition etc., from M/s AB Bofors (a Swedish

company), for a consideration of Rs. 1473.72 crores. It is the petitioner’s case,

based on the material collected by it during the course of the investigation, that in

1986-1987, a mind boggling sum (approximately Rs. 64 crores) was paid to the

accused persons including Respondent Nos. 1-3 herein by M/s AB Bofors, as

‘commission’ in order to aid the transaction. This was over and above

commission amounts paid to other individuals, who have passed away since

then. In the process, the procurement process was sullied and its sanctity

vitiated, the country’s reputation tarnished, and the Government was cheated of

legitimate monies payable to it. Unfortunately, despite the best efforts of the

petitioner, and the passage of the long period of time since then, the perpetrators

are yet to be brought to book. The impugned judgment of the Delhi High Court

quashes all proceedings emanating out of the FIR in question against the

respondents herein, without permitting the mater to go even to trial. The effect is

that persons involved in so grave and serious a crime, which jeopardized national

and public interest, have been allowed to go scot free, without facing trial or any

punishment.

It is true that there is some delay in the CBI approaching this Hon’ble

Court, as the impugned order was passed by the High Court on 31.05.2005. A

detailed statement of facts with regard to the causes for this delay has been set

out in the accompanying application for condonation of delay. It may be stated at

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this juncture itself, though, that the matter was examined by the CBI, in the year

2005 itself, with regard to the feasibility of challenging the impugned order of the

High Court. While the petitioner-CBI was of the view that the impugned order is

legally unsustainable and should be challenged before this Hon’ble Court,

ultimately a decision was taken not to challenge the impugned order on the basis

of the views expressed by the Government of India and the law officers who dealt

with the matter at that stage, as the Government denied permission to the CBI to

approach this Hon’ble Court. The matter has been reexamined now, in view of a

most significant development in the form of an interview given by one Mr.

Michael Hershman to an Indian Tv channel (‘Republic Tv’) on 17.10.2017. In the

said interview, Mr. Hershman has stated, inter alia, that he is in possession of

material which would show the payment of bribes in the Bofors deal, and that the

involvement of powerful persons may be the reason for the checkered history of

this case. Some of the relevant extracts from the interview read thus:

Michael Hershman:- “………We were looking at hundreds of

millions of dollars, clearly what to us was bribe money. Some of it
coming from the Bofors deal in Sweden…….”

Michael Hershman:- “…......I think there are still very powerful

politicians in this country. That is at risk of being identified as having
taken Bofors Money…….”

Prema Sridevi (Interviewer):- “Ya, if you are ever asked by Indian

Govt. now or in the future to testify before any agency, a commission
or a court of law, regarding the findings of the Bofors Deal, will you
be open to it? That’s when the time you were probing it, would you be
open to it?
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Michael Hershman:- If it’s a credible request, if I really believe there

is really a will to get to the bottom of it. And It’s not just some public
relations stunts I will certainly be willing to do it.”

The statements made by Mr. Hershman go to the very root of the matter.

To permit the proceedings to remain quashed, in the light of this fresh

development, would be a travesty of justice. The petitioner-CBI, taking

cognizance of this statements made in this interview, a copy of the transcript

whereof is also being placed before this Hon’ble Court alongwith this SLP, has

decided to conduct a further investigation in the matter. Accordingly, an

application under Section 173 (8) of the Code has also been moved before the

trial court. This application has been directed by the trial Court, vide order dated

01.02.2018, to be taken up for consideration on 17.02.2018. However, since any

further investigation by the petitioner-CBI could be hampered by the impugned

order of the High Court which has set aside all proceedings against the

respondents herein emanating from the FIR in question, it has become

necessary for the petitioner-CBI to challenge the impugned order of the High

Court before this Hon’ble Court.

The present is a fit case for applying the settled principle of criminal

jurisprudence that ‘a crime never dies’. In Japani Sahoo v. Chandra Sekhar

Mohanty, (2007) 7 SCC 394, this Hon’ble Court traced this principle of criminal

justice to “the well known maxim nullum tempus aut locus occurrit regi (lapse of

time is no bar to Crown in proceeding against offenders)”. This Hon’ble Court

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also took the view that mere delay in approaching a Court of law “would not by

itself afford a ground for dismissing the case”. In the present case, given the

gravity of the offences and the weighty public interest involved, it is submitted

that this Hon’ble Court would decide this petition not on the basis of the time that

may have elapsed since the passing of the impugned judgment, but on the

touchstone of the necessity to ensure that the guilty do not escape the long arm

of the law and go unpunished.

It should also be pointed out that the petitioner CBI is, in any event, a

respondent in the pending Criminal Appeal (Nos.1369-1375/2005) filed by a

private person which challenge the same impugned judgment of the High Court.

The CBI reserves its right to place its entire case, regarding the illegality and

untenability of the impugned order, before this Hon’ble Court as a respondent in

the said appeal, and the present SLP is filed without prejudice to its rights in the

said appeals.

Insofar as the impugned judgment and order of the High Court is

concerned, it is premised on the finding that certain documents on which the

petitioner relies to make out its case against the respondents, which were duly

obtained from the concerned authorities in Sweden, are neither available in

original nor as duly authenticated copies. Based on this finding, the Hon’ble High

Court observes, in paragraph 18 of the impugned judgment, that “it seems to me

that if these documents are not proved by satisfactory secondary evidence and

will not be ever proved at the trial, it will be a cruel joke on the accused to expose

them to a long and arduous trial and waste public time and money which will be

totally out of proportion to the results to be achieved. In fact, nothing will be

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achieved.” This finding, and the other observations in the impugned judgment

and order are wholly untenable and contrary to settled legal principles, and the

impugned judgment and order is liable to be set aside for, among others, the

following reasons:

(i) The impugned order is without jurisdiction:- The impugned order

has been passed on applications filed by the accused seeking recall

of earlier orders (dated 04.02.2004 and 20.05.2004) of the High

Court. By way of the first of these orders, the Hon’ble High Court

had set aside the charges originally framed by the trial court against

all the accused persons, including under the Prevention of

Corruption Act, and directed the trial court to frame charges against

the respondents herein under provisions of the Indian Penal Code

(Sections 420 and 120B). When the trial Court framed charges

pursuant to this order of the High Court, the matter was again taken

up to the High Court by the accused, and the second order of

20.05.2004 was passed, holding that the charges as framed do not

conform to the directions given by the High Court in its order of

04.02.2004, and remanding the matter again to the trial court.

Thereafter, applications for recall/modification of these orders were

filed before the High Court, which have been allowed by the

impugned order.
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It is well settled that the High Court has no jurisdiction to

review or recall its final orders in a criminal case, on account of the

bar under Section 362 of the Code of Criminal Procedure, 1973

(hereinafter the Code). The only exception permitted by this Hon’ble

Court, where a High Court exercising its inherent can recall an order

passed by it in a criminal case, is where the order of the High Court

is vitiated on account of want of jurisdiction or was passed in

violation of natural justice [See, for instance, State of Punjab v

Davinder Pal Singh Bhullar – (2011) 14 SCC 770, Hari Singh Mann

v Harbhajan Singh Bajwa – (2001) 1 SCC 169, Mohd. Yaseen v

State of U.P. – (2007) 7 SCC 49, Sunita Jain v Pawan Kumar Jain –

(2008) 2 SCC 705, Moti Lal v State of M.P. – (2012) 11 SCC 427,

Nazma v Javed @ Anjum – (2013) 1 SCC 376 and Abdul Basit v

Abdul Kadit Choudhary – (2014) 10 SCC 754]. The present case

admittedly does not involve either any question of lack of jurisdiction

of the High Court, insofar as the earlier orders (dated 04.02.2004

and 20.05.2004) of the High Court are concerned, nor any question

of violation of natural justice in the passing of the said orders. On

the other hand, as a perusal of paragraphs 18, 54 and 58 of the

impugned order shows, the High Court has recalled the earlier

orders only on the basis that charges cannot be framed in this case

as certain documents obtained from the Swedish authorities “are not

capable of being proved”. The impugned order is, therefore, wholly

without jurisdiction and is liable to be set aside on this short ground

alone.
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The impugned order wrongly relies, in this regard, on the

decision of this Hon’ble Court in A.R. Antulay v R.S. Nayak – (1988)

2 SCC 602, and terms Section 362 of the Code as a “mere

procedural restriction” (paragraph 26 & 29 of the impugned order).

This is in clear disregard of the decisions cited earlier, which settle

the issue. The judgment in Antulay’s case has no bearing

whatsoever on the issue at hand, as it does not deal with the

question of the jurisdiction of the High Court to review/recall its

orders. On the other hand, that was a case where a larger Bench of

7 Judges of this Hon’ble Court overruled directions issued by a

smaller Bench of 5 Hon’ble Judges of this Hon’ble Court on the

basis that the said directions resulted in a denial of the guaranteed

fundamental rights of one of the parties. The present case is not

such a case at all. Furthermore, this Hon’ble Court referred, inter

alia, to Article 137 of the Constitution, which confers on this Hon’ble

Court the power to review any of its orders. The said provision has

no application to the High Court.

The High Court, it may be stated, also wrongly holds that the

decisions relied on by the petitioner herein, in support of this

proposition, including Sooraj Devi v Pyare Lal & Anr. (1981) 1 SCC

500, “stand modified by the judgment in Antulay’s case.

Interestingly, the judgment I Sooraj Devi has been relied on and

affirmed by this Hon’ble Court as recently as in Ajay Singh v. State

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of Chhattisgarh, (2017) 3 SCC 330, where this Hon’ble Court held

thus: 

“15. Interpreting the said provision in the context of

exercise of inherent power of the High Court under
Section 482 CrPC this Court in Sooraj Devi v. Pyare
Lal[Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 : 1981
SCC (Cri) 188] held thus: (SCC p. 502, para 5)
“5. The appellant points out that he invoked the inherent
power of the High Court saved by Section 482 of the
Code and that notwithstanding the prohibition imposed
by Section 362, the High Court had power to grant
relief. Now it is well settled that the inherent power of
the court cannot be exercised for doing that which is
specifically prohibited by the Code (Sankatha
Singh v. State of U.P.[Sankatha Singh v. State of U.P.,
AIR 1962 SC 1208 : (1962) 2 Cri LJ 288] ). It is true that
the prohibition in Section 362 against the court altering
or reviewing its judgment is subject to what is “otherwise
provided by this Court or by any other law for the time
being in force”. Those words, however, refer to those
provisions only where the court has been expressly
authorised by the Code or other law to alter or review its
judgment. The inherent power of the court is not
contemplated by the saving provision contained in
Section 362 and, therefore, the attempt to invoke that
power can be of no avail.”

We have referred to the aforesaid decision to illustrate

that CrPC confers absolute sanctity to the judgment
once it is pronounced. It does not conceive of any kind
of alteration.”
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(ii) The impugned order is contrary to the law laid down by this Hon’ble

court regarding the nature of the enquiry to be undertaken at the

stage of framing of charge:- In the impugned order, in substance

and effect, the High Court has examined and assessed the evidence

and materials produced by the prosecution, and concluded that the

material would be insufficient for a conviction. This approach is in

the teeth of the catena of decisions of this Hon’ble Court which hold

that at the stage of framing of charge, the Court is required only to

examine the materials with a view to be satisfied that a prima facie

case of commission of the offence is made out against the accused.

The Court is not to weigh the evidence at this stage, as the

assessment of the evidence is to be undertaken only at the stage of

trial [ See State of Delhi v Gyan Devi – (2000) 8 SCC 239, Hem

Chand v State of Jharkhand – (2008) 5 SCC 113, State of Madhya

Pradesh v Mohanlal Soni – (2000) 6 SCC 338, Amit Kapoor v

Ramesh Chander & Anr. – (2012) 9 SCC 460]. In the present case,

the Hon’ble High Court has prejudged the matter at the stage of

framing of charges, and not allowed the matter to even proceed to

trial, resulting in a complete miscarriage of justice.

It may also not be out of place to state that the entire record of

the case is extremely voluminous, with documents running into

thousands of pages, apart from more than 60 witnesses who were to

be examined during the trial. It is apparent from the impugned order

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that all of this material has not been examined by the High Court.

Thus, in any event, grave injustice has been done in this case, as

the Hon’ble High Court has arrived at final conclusions in the matter

on the basis of an incomplete and selective analysis of the material

available.

(iii) Even otherwise, the impugned judgment wrongly holds that the

documents in question, which were obtained from the competent

authorities of Sweden, are not entitled to be treated as evidence in

terms of Section 166A of the Code of Criminal Procedure, 1973.

Section 166A (3) of the Code expressly states that every document

received pursuant to a Letter of Request under Section 166A (1)

“shall be deemed to be the evidence collected during the course of

investigation under this Chapter”. A ‘Letter of Request’ under

Section 166A (1) may be sent to “a court or an authority” in a foreign

country. The Hon’ble High Court wrongly holds, in paragraph 54 of

the impugned order that a ‘Letter Rogatory’ can only be issued to a

judicial authority in Sweden.

The High Court also erroneously proceeds (in paragraphs 51 -

54 of the impugned order) on the basis that the documents in

question were obtained pursuant to a request made by the CBI

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directly to the Indian Embassy and the Swedish authorities, and not

pursuant to any Letter Rogatory, despite the fact that a Letter

Rogatory had, in fact been issued to the Swedish authorities in

1998, and the document were made available to the CBI, through

the Indian embassy in Sweden, in 2001 pursuant to the said Letter

Rogatory. This fact is established beyond doubt, inter alia, by the

‘joint statement’ of two officers from the Prosecutor’s Office in

Sweden, which is extracted in paragraphs 19 and 31 of the

impugned order, and reads thus:

“The photostat copies of the said original documents

have been sent by the Prosecutor’s Office to the
Ministry of Justice, Sweden for their onward
transmission to the Embassy of India, Stockholm for
their onward transmission to CBI in execution of Letters
Rogatory (letter of request) have been duly initialed and
stamped by him in token of authentication and that the
original documents were returned to the concerned
parties in Sweden as per provision of Swedish law”.

This fact is further corroborated by the correspondence from

the Swedish authorities, which expressly refer to the request for

legal assistance made in 1998. Furthermore, the Hon’ble High

Court misinterprets the reference to the subsequent communications

from the CBI officers, which were merely addressed to the

concerned authorities in Sweden to follow up on the Letter Rogatory

of 1998, as being proof of the fact that the documents in question

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were supplied by the Swedish authorities independent of the said

Letter Rogatory of 1998. Thus, the High Court holds Section 166A

of the Code to be inapplicable in this case on a wholly faulty

premise.

It may also be reiterated that the High Court has wrongly

undertaken the exercise of weighing and assessing evidence at this

stage of the case, and should have left these matters to be decided

by the trial court in course of the trial in accordance with law.

(iv) In any event, the High Court has fallen in error in holding that the

requirements of Section 78 (6) of the Indian Evidence Act are not,

and cannot be, satisfied in this case (paragraph 36 of the impugned

order). The High Court, in this regard, apart from exceeding the

scope of the enquiry at this stage of the case, as already pointed out

earlier, has failed to appreciate the purport and legal effect of the

aforementioned joint statement of the Prosecutor’s office in Sweden.

(v) Without prejudice and in the alternative, it is submitted that the

Hon’ble High Court has erred in proceeding on the basis that the

documents obtained from the Swedish authorities are ‘public

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documents’ to which Section 78 of the Indian Evidence Act would

apply. The documents in question, which are records of banking

transactions with private foreign banks as well as other documents

pertaining to the private company M/s Bofors, are not in the nature

of public documents at all, as defined in Section 74 of the Indian

Evidence Act. Section 78 would, therefore, have no application to

these documents. This being so, the very foundation of the

impugned judgment of the High Court would stand removed.

(vi) The impugned order also wrongly proceeds on the basis that no

case can be made out against the respondent herein without relying

on the documents obtained from the Swedish authorities, and that

the said documents cannot be proved even during trial. The

admissibility or otherwise, and the relevance, of the documents in

question is a matter to be decided at the stage of trial, alongwith the

other material and evidence produced by the petitioner herein. The

other materials include documents obtained from India itself, such as

those obtained from the ‘Hindu’, as well as documents obtained,

pursuant to Letters Rogatory, from the authorities in Switzerland.

These documents are specifically referred to in the Supplementary

chargesheet filed in this case. It is also noteworthy that the

documents obtained from the Swedish authorities, which are

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referred to in the impugned order and which constitute the entire

basis for the impugned order, were received by the CBI after the

filing of the supplementary chargesheet. Thus, even assuming for

the sake of argument that the Hon’ble High Court is correct in regard

to its analysis of the Swedish documents, the petitioner-CBI was in a

position to establish its case against the respondents herein on the

basis of other independent material and documents. This aspect of

the matter has not been adverted to at all by the Hon’ble High Court,

which has mistakenly proceeded on the basis that apart from the

documents received in 2001 from the Swedish authorities no other

material exists which would establish the guilt of the accused.

Further, all of these materials and documents would have to be

weighed by the trial court, in the course of the trial, to arrive at a

finding of guilt or innocence of the accused persons. This process

cannot be short-circuited, as it were, as has been done by the

impugned order of the High Court.

LIST OF DATES

24.03.1986 A contract number 6(9)/84/D(GS.IV) was entered into between

the Government of India and M/s. AB Bofors for supplying four

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hundred FH 77-B gun systems along with vehicles, ammunitions

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

(equivalent approximately to Rs. 1437.72 crores as per exchange

rate on March 21, 1986, 1 SEK=1.7094 Rs.).

As per the terms of payments stipulated in the contrast, 20% of

the total amount of the contrast (with the exclusion of any amount

related to services) was to be paid by the buyer, i.e., Government

of India, in advance, within 30 days from presentation by the

seller, i.e. M/s Bofors, of an advance payment guarantee.

07.04.1986 Advance payment guarantee was received from M/s. Bofors.

02.05.1986 The advance payment of SEK 1,682,132,196.80 (Rs. 296.15

crore), equivalent to 20% of the contract value, was paid to M/s

Bofors.

16.04.1987 On April 16, 1987, i.e. over a year after the said contract, when

the advance money had been paid by the Government of India as

per the terms of the contract and after delivery of the gun

systems had started, a programme ‘Dagens Eko’ of the Swedish

Radio, came out with a story on the subject. According to it,

Bofors had managed to obtain the contract from the Government

of India, among other things, due to the fact that local agents had

been paid large amounts in “bribes”. It stated that the agent had

helped Bofors with local contacts and support within the Indian

Military authorities, within the bureaucracy and within “Prime

Minister Gandhi’s Congress Party”. It also mentioned that the

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“payments to the agents were carried through by transaction to

secret bank accounts in Switzerland”. The national as well as

international media, thereafter, picked up the story and followed it

up with several news items. Following the media exposures, the

Government of India contacted B.M. Oza, Ambassador of India to

Sweden, who was on vacation in the U.K., and directed him to

return to his headquarters in Stockholm. The Ambassador was

further directed to contact the Swedish Government to demand a

statement denying the allegations, and to the effect that there

was no provision for any pay-off of any kind in the contract. The

Swedish Government responded, stating that they could not

issue such a statement without conducting some investigation

into the allegations.

21.04.1987 The Government of India, on April 21, 1987, made a formal

request to the Government of Sweden for an investigation into

the allegations.

24.04.1987 Bofors officials gave a detailed letter to the Ambassador, which

was forwarded by him to the Ministry of External Affairs (MEA). In

the said letter, M/s. Bofors, inter alia, denied having made any

payments of the kind as alleged in the media.

The Swedish Government thereafter ordered an enquiry by the

Swedish National Audit Bureau (SNAB).

01.06.1987 The SNAB submitted its report to the Swedish Government on

June 01, 1987, which was forwarded to the India Embassy,

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Sweden on June 04, 1987 which, in turn, sent it to Government of

India at New Delhi. The SNAB, inter alia, had observed 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”.

The report confirmed that payments to the tune of SEK 170-250

million were made by M/s. Bofors as “winding up costs”.

10.06.1987 This SNAB report was examined in the Ministry of Defence. The

then Hon’ble Raksha Rajya Mantri also recorded a detailed note

dated June 10, 1987 on the matter. He mentioned that the

Government of India must pursue this matter to its logical

conclusion and recommended that the Swedish Government and

M/s. Bofors be informed that unless they give the complete

information about the payments, if any, to the Government of

India, there will be no alternative but to cancel the contract. He

also suggested that the PM might reconfirm with the Chief of the

Army Staff (COAS) as to whether the Army could afford the

negative impact of a cancellation of the contract.

04.07.1987 The advice of the then Learned Attorney General for India was

also obtained on the options available to the Government of India

in view of the payments made by M/s. Bofors in contravention of

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the assurance given by the company. The Learned Attorney

General for India opined that M/s. Bofors had clearly breached

the contract.

28.08.1987 That on 28.08.1987 the Joint Parliamentary Committee was

constituted to probe into the issues arising from the report of the

Swedish National Audit Bureau relating to the Bofors’s contract of

supply of 155 mm howitzer guns to India and to ascertain the

identity of the person who received, and for the purpose for which

they received, payments of the amounts referred to in the said

report.

26.04.1988 That on 26.04.1988, the Joint Parliamentary Committee

submitted its report stating that no irregularities had been

committed as alleged by the Swedish Government.

22.01.1990 That on 22.01.1990 the CBI registered a case being RC1(A)/90-

ACU-IV and carried out a detailed investigation.

1990 – 2006 Ten ‘Letters Rogatory’ were issued to various countries,

including the U.K., Switzerland, Sweden, Austria and the

Bahamas. These include two Letters Rogatory issued to the

authorities in Sweden, in the years 1990 and 1998.

22.10.1999 That on the basis of the material collected in course of the

investigation, CBI filed a charge sheet on 22nd October, 1999 in

the Court of Special Judge, Delhi, against Shri S.K. Bhatnagar,

the then Defence Secretary, Shri Win Chadha, President of M/s.

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Anatronic General Company, Mr. Ottavio Quattrocchi, Mr. Martin

Ardbo, former President of M/s. AB Bofors and M/s. AB Bofors.

Late Shri Rajiv Gandhi’s name was placed in column (2) under

the heading name and addresses of accused not sent up for trial,

whether arrested or not arrested.

Para 62 of the said charge sheet clearly stated that investigation

into the transfer of funds routed through various countries was

still continuing in order to find out the details of other beneficiaries

and that the Letters Rogatory issued by the Court of Learned

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 were still pending execution. It was also mentioned that

the investigations concerning the role of Hersh Chadha, Maria

Quattrocchi, G. P. Hinduja, Prakash Hinduja and Srichand

Hinduja and other persons, including companies were also

continuing.

18.12.1999 That in connection with the Letters Rogatory already pending with

the Swiss authorities, on 18.12.1999 the C.B.I. received another

set of documents from the Swiss Government which comprised of

71 pages relating to the commission received by the Hinduja

brothers in the said deals of the Bofors. The said papers revealed

that, besides payments made by M/s. Bofors to M/s. Svenska Inc.

/W.N. Chadha and M/s. AE Services Ltd./Ottavio Quattrocchi,

payments were also made by M/s. AB Bofors to M/s. Mc Intyre

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Corporation to the tune of SEK 80,797,709.92 during the period

May 1986 to December 1986. The said company was a

Panamanian company registered in Panama on February 14,

1986. The said amount was credited to three different accounts in

three different banks in Switzerland as under:-

(1) Account No. 229 Arab/Tulip with M/s. Manufactures

Hanover Trust, New York, Ganeva Branch-opened on
May 30, 1986 by one Dr. Jurg W. Vogel Holding power of
Attorney on behalf of the Company M/s. Mc Intyre
Corporation;

Date Amount
May 22, 1986 - SEK 13,457,058.00
July 2, 1986 - SEK 8,410,661.00
July 9, 1986 - SEK 12,615,992.00
December 22, 1986 - SEK 2,550,879.96
Total SEK 37,034,590.96

(2) Account No. 87595 in the name of M/s. Mc Intyre Corp.,

Panama Ref. LOTUS, with Swiss Bank Corporation,
Geneva opened on May 30, 1986 by Dr. Jurg W. Vogel,
power of attorney-holder on behalf of the company;

Date Amount

May 23, 1986 - SEK 8,410,661.00

July 4, 1986 - SEK 8,410,661.00
July 9, 1986 - SEK 12,615,992.00
December 22, 1986 - SEK 2,550,879.96
Total SEK 31,988,193.96
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In this account opening form, Mr. Vogel had mentioned

the name of P.P. Hinduja as their client.

(3) Account No. 416036-32 p 72 in the name of M/s. Mc

Intyre Corporation Ref. Mont Blanc with credit Suisse,
Geneva, opened at the instructions of P.P. HInduja:-

Date Amount

May 23, 1986 - SEK 11,774,925.00

Grand Total SEK 80,797,709.92

The documents revealed that account No. 229 ARAB was

initially opened by Srichand and Gopichand Hinduja, then

Indian Nationals, with the Manufactures Hanover Trust

Company, New York, Geneva branch, Switzerland on May 27,

1986 in their joint names. The account-opening documents of

this account bear a stamp “Cancelled”. However, another

account was opened in the same bank by Mr. Jurg W. Vogel on

May 30, 1986, in the name of M/s. Mc Intyre Corporation, with

the account number as 229 ARAB/Tulip.

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09.10.2000 That based on the materials collected during further

investigations, including documents obtained from the authorities

in Switzerland pursuant to Letters Rogatory, the C.B.I. filed

further report under section 173(8) of the Cr.P.C. before the

learned Special Judge, Delhi on 9th October, 2000 against Shri

Srichand P. Hinduja, Shri Gopichand Hinduja and Shri Prakash

P. Hinduja to be included as accused persons for the offences

under sections 120-B IPC read with Section 420 IPC and Section

5(2) read with 5(1)(d) of the Prevention of Corruption Act and be

tried in CC No. 39/1999 in accordance with law.

12.12.2000 The learned Special Judge took cognizance of the matter and

issued summons to the Hinduja brothers and they all appeared

before the Special Judge on 19th January, 2001.

2001 Correspondence exchanged between the officers of the CBI, the

Indian embassy in Sweden and the Swedish authorities, to follow

up on the Letter Rogatory issued in 1998.

27.06.2001 Certain documents were forwarded by the Ministry of Justice,

Sweden, to the Indian embassy at Stockholm, with a covering

letter stating that the documents are being sent “with reference to

previous communication concerning a request of legal assistance

regarding Bofors case”

16.08.2001 Further documents were forwarded by the Ministry of Justice,

Sweden, to the Indian embassy at Stockholm, “as partial account

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of the Indian request for legal assistance of 20 October, 1998.”

Clearly, these documents were forwarded to the Indian

authorities in pursuance of the Letter Rogatory issued to the

Swedish authorities in the year 1998.

18.04.2002 Applications filed by the respondent Nos. 1-3 herein, before the

Learned Special Judge, for recall of the order dated 12.12.2000,

were dismissed.

10.06.2002 The Respondent Nos. 1-3 herein challenged the proceedings

before the Delhi High Court, which set aside the order of the

Special Judge issuing summons, by its order dated 10.06.2002.

The High Court left it open for the CBI to file a fresh chargesheet

after following the procedure laid down in Vineet Narain v Union

of India – (1998) 1 SCC 226.

July 2002 The order of the High Court was challenged by the CBI before

this Hon’ble Court This Hon’ble Court issued notice in the case,

and also stayed the order of the High Court.

14.11.2002 &
15.11.2002 In view of the stay order passed by this Hon’ble Court, the Ld.

Special judge proceeded to frame charges against the accused

persons. The Ld. Special Judge ordered framing of charge

against M/s AB Bofors (Kartongen Kemi Och Forvaltning), G.P.

Hinduja, P.P. Hinduja and S.P. Hinduja under section 120-B r/w

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

1947. The Special Judge also held vide the aforesaid order that
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AB Bofors was prima facie liable under section 420 IPC and

section 161 r/w section 165-A IPC and section 464 and 465 IPC.

S.P. Hinduja, G. P. Hinduja and P.P. Hinduja were also held

liable under section 161 r/w section 165-A/34 IPC.

28.11.2002 Crl. Misc. (Main) Application No. 3938/2002 was filed by M/s.

Kartongen Kemi Och Forvaltning AB (formerly M/s. AB Bofors)

under section 482 Cr.P.C., before the Delhi High Court, for

quashing the charges framed by the Special Judge, New Delhi

referred above.

29.01.2003 Crl. Misc. (Main) Application No. 500/2003 was filed by Srichand

P. Hinduja under section 482 Cr.P.C., before the Delhi High

Court, for quashing the charges framed by the Special Judge,

New Delhi referred above.

30.01.2003 Crl. Misc. (Main) Application No. 492/2003 was filed by Prakash

P. Hinduja under section 482 Cr.P.C., before the Delhi High

Court, for quashing the charges framed by the Special Judge,

New Delhi referred above.

30.01.2003 Crl. Misc. (Main) Application No. 501/2003 was filed by

Gopichand P. Hinduja under section 482 Cr.P.C. for quashing

the charges framed by the Special Judge, New Delhi referred

above.
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07.07.2003 This Hon’ble Court delivered its judgment in the appeals of the

CBI challenging the aforementioned order dated 10.06.2002

passed by the high Court. It set aside the order dated

10.06.2002 of the High Court, and allowed the appeals of the

CBI. However, it appears that the fact that the Ld. Special Judge

had, meanwhile, framed charges against the accused persons

was not brought to the notice of this Hon’ble Court as this Hon’ble

Court stated in its order that while framing the charge the Ld.

Special Judge shall carefully scrutinize the material on record and

other circumstances of the case in accordance with law.

30.09.2003 The High Court heard arguments in the aforementioned petitions

filed by the accused persons for quashing of the charges framed

by the Ld. Special judge, and reserved judgment.

04.02.2004 The Hon’ble High Court quashed the charges under section 120-

B/420 IPC against M/s AB Bofors and section 5(1)(d) r/w section

5(2) of the Prevention of Corruption Act, 1947 and section 165-A

r/w 161 IPC against M/s. AB Bofors, G.P. Hinduja, S.P. Hinduja

and P.P. Hinduja. The Hon’ble court sent the matter back to the

trial court, with a direction that charges under section 120-B/420

IPC were to be framed against S.P. Hinduja, G.P. Hinduja and

P.P. Hinduja and under section 465 IPC against M/s. AB Bofors.

03.03.2004 Criminal Misc. Applications No. 1970/2004 in Crl. M. (M) No.

492/2003; Crl. M. No. 1971/2004 in Crl. M. (M) No. 500/2003 and

Crl. M. No. 1969/2004 in Crl. M.M. No. 501/2003 were filed by

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Respondent No. 1 to 3 in the Hon’ble High Court for modification

of the aforesaid order dated 4th February, 2004 of the High Court.

09.03.2004 The Hon’ble High Court dismissed the said applications being not

maintainable and misconceived. The Hon’ble High Court also

held that the aforesaid applications of Respondent No. 1 to 3

were misconceived as the order for framing of charges was

passed by the Special Judge (on14/15th November, 2002) before

the aforesaid order of the Supreme Court (dated 07.07.2003) and

the petitions before the High Court challenging the said order

were disposed off after hearing extensive arguments advanced

by both the parties. The Hon’ble Court also observed in the

above order that the appropriate remedy available to the

petitioners was by way of filing petitions before the Supreme

Court of India. This remedy was not availed of by the

Respondents No. 1 to 4.

26.03.2004 The Court of CMM, Delhi considered the matter for framing of

charge and also framed charge under section 120-B IPC and 420

IPC r/w Section 120-B IPC against Respondent No. 1 to 3 and

the Court framed charge under section 465 IPC against

Respondent No. 4.

30.04.2004 Respondent No. 1 to 3 filed petitions in the High Court of Delhi to

call for the records of the case pending in the court of CMM, Delhi

and to quash and set aside the Order dated 26 th March, 2004 of

the Ld. CMM, Delhi framing charges on the ground that only
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charge that the Hon’ble High Court directed to be framed against

Respondent No. 1 to 3 was for alleged offence under section

120-B r/w section 420 IPC and the charges framed by Ld. Trial

court were contrary to the order dated 04.02.2004.

20.05.2004 Hon’ble High Court set aside the order dated 26th March, 2004

and the charges framed by the Ld. CMM, Delhi and directed that

the charges be framed strictly in accordance with the directions

given by the High Court in its earlier order of 04.02.2004, and in

accordance with Chapter-XVII of the Code of Criminal Procedure

after hearing the parties.

25.11.2004 The Court of CMM, Delhi dismissed the petition dated 26.07.2004

of Respondent No. 1 to 3 and petition dated 09.03.2004 of

Respondents no. 1 to 3 and petition dated 09.03.2004 of

Respondent No. 4 for direction to CBI to produce the original

documents contained in Vol. No. XXII.

07.01.2005 Respondents No. 1 to 3 filed petitions Criminal M.A. No. 169 &

170 of 2005, 171 & 172 of 2005 and 173 & 174 of 2005 in Crl.

Rev. No. 271 of 2004 in the High Court, wherein they had made a

prayer for review/recall and/or for clarification/modification of the

order dated 20.05.2004 of the High court to the effect that in view

of the fact that there are no documents connecting them with the

affair which are capable of being proved in the course of trial, the

case against them be dropped.

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02.02.2005 Respondent No. 4 filed petition in the High Court for intervention

in the Applications filed by Respondent No. 1 and the quashing

the proceedings pending in the court of CMM, Delhi (CC No. 1 of

2002 titled C.B.I. Vs. S.K. Bhatnagar & others).

13.05.2005 Arguments were heard by the High Court and judgment was

reserved.

31.05.2005 Impugned order passed by the High Court allowing the

applications filed by the respondents, and quashing all

proceedings against Respondent Nos. 1 to 4 and discharged

them from the case.

2005 Special Leave Petitions were filed by private parties challenging

the impugned judgment of the High Court. These petitions, in

which leave was granted by this Hon’ble Court, are currently

pending in this Hon’ble Court as Criminal Appeal Nos. 1369-

1375/2005.

Oct. 2017 Interview given by one Mr. Michael Hershman to an Indian Tv

channel. In the said interview, Mr. Hershman has stated, inter

alia, that he is in possession of material which would show the

payment of bribes in the Bofors deal, and that the involvement of

powerful persons may be the reason for the checkered history of

this case. The statements made by Mr. Hershman go to the very

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root of the matter. The petitioner-CBI, taking cognizance of this

interview, a copy of the transcript whereof is also being placed

before this Hon’ble Court alongwith this SLP, has decided to

conduct a further investigation in the matter. Accordingly, an

application under Section 173 (8) of the Code has also been

moved before the trial court. However, since any further

investigation by the petitioner-CBI could be hampered by the

impugned order of the High Court which has set aside all

proceedings against the respondents herein emanating from the

FIR in question, it has become necessary for the petitioner-CBI to

also challenge the impugned order of the High Court before this

Hon’ble Court.

_____ 2018 Present Special Leave Petition filed in this Hon’ble Court.
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IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CRL) NO. OF 2018
IN THE MATTER OF :
A PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA FOR
SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER
DATED 31.05.2005 OF THE HIGH COURT OF DELHI AT NEW DELHI IN CRL.
M.A. NO. 169 & 170, 171 & 172, 173 & 174 AND CRL. M.C. NO. 763 OF 2005 IN
CRL. REV. NOS. 271, 272 AND 273 OF 2004)

AND IN THE MATTER OF:

Central Bureau of Investigation (C.B.I.)

Block No. 3, C.G.O. Complex,
Lodhi Road,
New Delhi-110003. -------- Petitioner
Versus

1. Srichand P. Hinduja,

A U.K. Citizen of
24, Carlton House Terrace, London (U.K.)
And temporarily residing at
Parama Jamuna, Mhatre Road,
Juhu, Mumbai.

2. Gopichand P. Hinduja

A U.K. Citizen of
24, Carlton House Terrace, London (U.K.)
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And temporarily residing at

Parama Jamuna, Mhatre Road,
Juhu, Mumbai.

3. Prakash P. Hinduja

A Swiss Citizen of 13-B Chemin Privote,

1223 Cologny,
Geneva, Switzerland
And temporarily residing at
Parama Jamuna, Mhatre Road,
Juhu Mumbai.

4. M/s. Kartongen Kemi Och Forvaltning ------------------

Respondents

AB (formerly M/s. AB Bofors)

To
The Hon’ble the Chief Justice of India and
His companion Justices of the Hon’ble Supreme
Court of India at New Delhi.

The humble petition of the petitioner above named most respectfully

SHOWETH:
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1. The petitioner herein is filing the present petition under Article 136 of the

Constitution of India seeking Special Leave to appeal against the judgment and

order of the High Court of Delhi at New Delhi dated 31.05.2005 in Crl. M.A No.

169 & 170, 171 & 172, 173 & 174 And Crl. M.C. No. 763 of 2005 in Crl. Rev.

Nos. 271, 272 and 273 of 2004 whereby a Learned Judge of the High court

quashed all proceedings against S.P. Hinduja, G.P. Hinduja and P.P. Hinduja

emanating from FIR/case No. RC.1(A)/90-ACU-IV/SIG, New Delhi and

discharged them from the case and also quashed order dated 26.03.2004 of the

Chief Metropolitan Magistrate, Delhi framing charges against M/s. Kartongen

Kemi Och Forvaltning AB (formerly M/s. AB Bofors) and discharged the company

from the case which were framed in terms of the judgment dated 4 th February,

2004 of the High Court of Delhi.

2. The Special Leave Petition raises substantial questions of law of general

public importance as to:-

(i) Whether the High Court had the jurisdiction to recall the earlier

Orders dated 04.02.2004 and 20.05.2004 passed by the High Court

itself?

(ii) Whether the High Court can assess and examine the evidence and

documents in depth at the stage of framing of charges?

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(iii) Whether or not it was for trial court to decide the admissibility of

documents at the appropriate stage, i.e. during the course of the

trial?

(iv) Whether the provisions of Sections 76 and/or 78(6) the Indian

Evidence Act would be applicable to copies of documents received

in execution of a Letter Rogatory from a foreign country?

(v) What are the criteria for a document obtained from the competent

authorities in a foreign country to constitute a ‘certified copy’?

(vi) Whether the provisions of Section 166A of the Code of Criminal

Procedure, 1973, are applicable to the documents in question in this

case?

(vii) If so, what would be the effect of Section 166A (3) of the Code

insofar as the copies of documents obtained from the Swedish

authorities in this case are concerned?

3. The facts leading to the filing of the present Special Leave Petition are as

briefly stated hereinafter.

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4. On 22.01.1990 the C.B.I. registered a case being RC. 1(A)/90-ACU-IV and

carried out a detailed investigations. This related to allegations of payment

of commissions and illegal gratification in relation to acquisition of the

“Bofors” guns by the Government of India. The investigation has resulted

in the unearthing of a considerable amount of material which shows the

commission of offences under various provisions of the IPC and the

Prevention of Corruption Act, 1947, for which two charge sheets have

been filed. The gist of the allegations in the charge sheets, in relation to

this matter, is, only as a background, indicated briefly hereinafter.

(i) In order to meet the requirement of the Defence forces, the

Indian Army after extensive field trials and on the basis of

comparative evaluation, had, vide General Staff

Recommendation dated December 30, 1982, inter alia,

recommended the following 155 mm (towed) gun systems, for

buy and licence production in the given order of priority:

(a) TR of M/s. Sofma, France,

(b) FH 77B of M/s. Bofors, Sweden and
(c) FH 70 of M/s. International Military Services Limited U.K.
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(ii) For only a one-time buy, the following 155 mm (towed) guns

were recommended in the given order of priority:

(a) TR of M/s. Sofma, France,

(b) FH 77B of M/s. Bofors, Sweden and
(c) FH 70 of M/s. International Military Services Limited

U.K.

(d) GN 45 of M/s. Voest Alpine, Austria.

(iii) On 20th February, 1984 the Ministry of Defence moved a

paper for the consideration of the Cabinet Committee on

Political Affairs for the procurement and licence for

manufacture of 155 mm guns (towed) and 155 ammunition for

the Indian Army. This paper sought the approval of the

Cabinet Committee on Political Affairs for the following:

(a) Procurement of 400 (four hundred) Nos. of the 155 mm

Gun (Towed), along with accessories/spares/vehicle and
ammunition at a total estimated cost of Rs. 1600 crores
(approx.) and subsequent licence manufacture in India of
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520 (five hundred and twenty), guns in the Seventh Plan

and thereafter.
(b) Entering into a licence agreement with selected
manufacturer for the production of 155 mm ammunition in
India.
(c) Constitution of two committees, a Negotiating Committee
and a Guidelines Committee for the purpose of carrying out
negotiations.

(iv) The Cabinet Committee on Political Affairs, at its meeting held

on April 25, 1984, considered the said proposal and approved

the same except that, instead of two committees, it approved

the constitution of a single Negotiating Committee with its

composition set out as below:-

Defence Secretary-Chairman
Secretary (Defence Production)-Member
Scientific Advisor to Defence Minister-Member
Addl. Secretary (EAD) – Member
Financial Advisor (DS)-Member
Dy. Chief of Army Staff-Member

(v) That as a follow-up, the Negotiating Committee was formally

set up by the Ministry of Defence note dated May 3, 1984. The

Joint Secretary (Ordnance), Ministry of Defence was

appointed as the Secretary of the Negotiating Committee.

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(vi) That on May 7, 1984, Joint Secretary (O) requested the Army

Headquarters to obtain an undertaking from all the four firms

namely, M/s Sofma, M/s. Bofors, M/s. International Military

Services and M/s. Voest Alpine, in the prescribed proforma

about their agents in India. The same was furnished by M/s.

Bofors of Sweden and also by all the other three firms. M/s.

Bofors of Sweden, in its declaration dated May, 19, 1984,

under the signature of Hans Ekblom Vice-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, Brig. B.B. Bhatnagar (retired)

and Brig. A.L. Verma (retired) were designated to liaise with

the Government of India.

(vii) That Shri S.K. Bhatnagar, the Defence Secretary, held

discussions with the representatives of all the four gun

manufactures separately on May 3, 1985 and informed them

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that “the present Government did not approve of the

appointment of India agent acting for foreign suppliers”. He

requested them to make a reduction in their offers, in case

they had kept any commission for the Indian agents. He, inter

alia, also told Martin Ardbo, President of M/s. Bofors that the

Government of India would disqualify a firm, in case it came to

notice that an agent had been appointed by a foreign firm. As

regards this, Martin Ardbo stated before S.K. Bhatnagar that

W.N. Chadha of Anatronic General Corporation had been

acting as their agent for several years and was still acting as

such. He stated that they would consider the advice of the

Defence Secretary on the policy of the Government of India

and take necessary action. Martin Ardbo did not disclose that

M/s. Bofors had any other agent besides Anatronic General

Corporation.

(viii) That on May 7, 1985, M/s. Sofma of France confirmed to the

Government of India that they had not kept any agent or

middleman in the deal and that their agreement with their

agent HEI Company could be treated as null and void.

However, no similar communication was received from M/s.

Bofors. Also, despite a telex message dated July 22, 1985

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from the Military Attache to Indian High Commission, London

which mentioned W.N. Chadha as a Bofors representative in

India, S.K. Bhatnagar did not choose to obtain a clarification

from M/s. Bofors in this regard.

(ix) That on the advice of the Army Head Quarters and after

discussing the advantages and disadvantages of the various

gun systems, the Negotiating Committee, at its meeting held

on October 29, 1985, recommended the short listing of two

firms, namely, M/s. BOFORS, for detailed negotiations. Late

Shri Rajiv Gandhi, Prime Minister (as Defence Minister),

approved the same on November 25, 1985.

(x) That the Army Headquarters, vide their technical evaluation

report of 155 mm Towed Gun Systems dated February 17,

1986, mentioned that, though both the guns met the minimum

acceptable parameters and the paramount requirement of

mobility, technical operational features and range, the

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Swedish Bofors 77-B gun enjoyed a clear edge over the

French Sofma TR-155 in view of current and future

operational requirements.

(xi) Though Martin Ardbo, President of M/s. Bofors, had been

asked as early as on May 3, 1985 to dispense with the

services of agents, he responded only on March 10, 1986

when he confirmed to the Defence Secretary that, they “do not

have any Representative/Agent especially employed in India

for this project”. His letter mentioned that for administrative

services, such as hotel bookings, transportation, forwarding of

letters, telexes, etc., they were using a local firm, Anatronic

General Corporation, C-4, Main Market, Vasant Vihar, New

Delhi.

(xii) At the Negotiating Committee meeting held on March 12,

1986, considering the technical, contractual and financial

aspects, it was felt that the offer of M/s. Bofors was better than
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that of M/s. Sofma. Since the Army too preferred the Bofors

FH 77-B gun systems, the committee recommended the

issuance of a Letter of Intent (LoI) to M/s. Bofors, subject to

the latter satisfying the Government on all aspects of

purchase, licence production, credit and other arrangements.

The matter regarding issuance of the Letter of Intent was got

approved from the different Secretaries and Ministers

concerned on March 13, 1986 and March 14, 1986. The file in

fact was approved by five officials and three ministers on a

single day, i.e. March 13, 1986 and was finally approved by

the P.M. Shri Rajiv Gandhi as Raksha Mantri (RM) on March

14, 1986. The Letter of Intent was also issued to M/s. Bofors

on March 14, 1986.

(xiii) That S.K. Bhatnagar, on March 22, 1986, submitted a note to

the Prime Minister late Shri Rajiv Gandhi, inter alia, referring

to a discussion with the latter and, seeking permission for

awarding the contract to M/s. Bofors. He recorded that he had

discussed the matter with Raksha Rajya Mantri, Arun Singh,

at the airport before the latter left for Bhutan on the 21 st

morning and that Shri Arun Singh had given his “blessings” to

go ahead and clinch the deal after Bofors “blessings” to go

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ahead and clinch the deal after Bofors “eventually” agreed to

give 10 guns free of cost.

(xiv) On March 24, 1986 a contract number 6(9)/84/D(GS.IV) was

entered into between Government of India and M/s. AB Bofors

after approval by the then Prime Minister, the late Shri Rajiv

Gandhi, who was also the Defence Minister, for supplying four

hundred FH 77-B gun 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 exchange rate on March 21, 1986, 1 SEK=

1.7094 Rs.). The aforesaid contract was signed by S.K.

Bhatnagar for and on behalf of the President of India and by

Martin Ardbo, President AB Bofors and also by Anders G.

Carlberg, President and Chief Executive Officer of Nobel

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

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(xv) As per the terms of payments stipulated in the 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.,

Government 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 M/s. Bofors on April 7, 1986, the advance

payment of SEK 1,682,132,196.80 (Rs. 296.15 crore),

equivalent to 20% of the contract value, was paid to M/s.

Bofors on May 2, 1986.

(xvi) On April 16, 1987, i.e., over a year after the said contract,

when the advance money had been paid by the Government

of India as per the terms of the contract and after delivery of

the gun systems had started, a programme Dagens Eko of the

Swedish Radio, came out with a story on the subject.

According to it, the Bofors had managed to obtain the contract

from the Government of India, among other things, due to the

fact that local agents had been paid large amounts in “bribes”.

It stated that the agent had helped Bofors with local contacts

and support within the Indian Military authorities, within the

bureaucracy and within the “Prime Minister Gandhi’s

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Congress Party”. It also mentioned that the “payments to the

agents were carried through by transaction to secret bank

accounts in Switzerland”. The national as well as international

media, thereafter, picked up the story and followed it up with

several news items. Following the media exposure, the

Government of India contacted B.M. Oza, Ambassador of

India to Sweden, who was on vacation in the U.K., and

directed him to return to his headquarters in Stockholm. The

Ambassador was further directed to contact the Swedish

Government to demand a statement denying the allegations,

and to the effect that there was no provision for any pay-off of

any kind in the contract. The Swedish Government responded

stating that they could not issue such a statement without

conducting some investigation into the allegations. The

Government of India, on April 21, 1987, made a formal

request to the Government of Sweden for an investigation into

the allegations.

(xvii) In the meantime, Ambassador Oza at Stockholm was also in

touch with the Bofors officials. On April 24, 1987, Bofors

officials gave a detailed letter to the Ambassador, which was

forwarded by him to the Ministry of External Affairs (MEA). In

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the said letter, M/s. Bofors, inter alia, denied having made any

payments of the kind alleged in the media. Ambassador Oza

advised the Government of India not to pronounce any

judgment on the basis of this Bofors report. He added that, for

the purpose of making any judgment, the Government should

await a report from the Swedish Government for which the

latter had since been requested. The Ambassador reiterated

his views on April 28, 1987 in favour of persisting with the

Swedish Government for their investigation report.

(xviii) After receiving the said report of M/s. Bofors dated April 24,

1987 and the views of the Indian Ambassador at Stockholm,

the late Shri Rajiv Gandhi, the PM, had a telephonic

conversation with the Swedish PM, Mr. Carlsson. He told Mr.

Carlsson that he had received the report of Bofors, which

mentioned that there were no middlemen, and, therefore,

there was no need for any further investigation by the Swedish

Government. It may be mentioned that what late Sh. Rajiv

Gandhi told the Swedish Prime Minister Carlsson was just the

contrary to what the Government of India had requested

through official channels. All this took place despite the

specific advice of the Indian Ambassador in Sweden. In fact

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Ambassador Oza was kept in the dark with regard to this

development.

(xix) The Swedish Government, accordingly, made a public

announcement that there would not be any investigation by

the Swedish Government as against the earlier announcement

that they would conduct an official investigation. However,

Ambassador Oza persisted with the original stand till the

Swedish Prime Minister Mr. Carlsson told him about the

developments. The late Shri Rajiv Gandhi, however, had to

relent later on and he sent a message to the Swedish PM on

April 28, 1987 to the effect that “though facts furnished by

Bofors tend to confirm the position that there were no

middlemen, clarifications are necessary to set the controversy

at rest”. The message added “In this context, the enquiry

promised by the Swedish Government is of great importance”.

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(xx) The Swedish Government thereafter ordered an enquiry by

the Swedish National Audit Bureau (SNAB). The SNAB

submitted its report to the Swedish Government on June 01,

1987, which was forwarded to the Indian Embassy, Sweden

on June 04,1987 who, in turn, sent it to Government of India at

New Delhi. The SNAB, inter alia, had observed 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”.

The report confirmed that payments to the tune of SEK

170-250 million were made by M/s. Bofors as “winding
up costs”.

(xxi) The SNAB thus confirmed that payments had indeed been

made by M/s. Bofors in connection with the contract with the

Government of India inter alia to its previous agent in India but

the names of the recipients were withheld from the

Government of India. This SNAB report was examined in the

Ministry of Defence. The then Raksha Rajya Mantri, Shri Arun

Singh, also recorded a detailed note dated June 10, 1987 on

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the matter. He mentioned that the Government of India must

pursue the matter to its logical conclusion and recommended

that the Swedish Government and M/s. Borfors be informed

that unless they gave Government of India the complete

information about the payments, if any, there will be no

alternative but to cancel the contract. He also suggested that

the PM might reconfirm with the Chief of the Army Staff

(COAS) as to whether the Army could afford the negative

impact of a cancellation of the contract.

(xxii) In their effort to get M/s. Bofors to furnish the details of

payments, etc., on July 3, 1987, the Ministry of Defence called

Mr. Bredin, Vice-President of Bofors who was located in Delhi,

to the Ministry. The Additional Secretary, Ministry of Defence,

Shri N.N. Vohra and Joint Secretary (O), Shri T.K. Bannerji

made it clear to Mr. Bredin that if they did no furnish the

details, Bofors would lose the contract. The Chairman of the

Novel Group of Industries, Mr. Anders Carberg, along with two

others, was ready to come to India on the following Monday

i.e., July 06, 1987. This is also apparent from the fact that

visas were issued by the Indian Embassy, Stockholm for the

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three-member delegation headed by Mr. Anders Carlberg, in

post-haste and during a weekend (holiday).

(xxiii) However, the late Shri Rajiv Gandhi, the then Prime Minister

of India, intervened at this stage on July 04, 1987. At a

meeting of the Cabinet Committee on Political Affairs (CCPA)

held at PM’s residence, he directed that officials of M/s. Bofors

should be asked to cancel their trip to Delhi as a decision had

been taken to constitute a Joint Parliamentary Committee

(JPC) to look into the entire Bofors affairs. At the same

meeting, he also directed the Ministry of Defence not to

pursue Bofors any longer.

(xxiv) The advice of the then Learned Attorney General for India was

also obtained on the options available to the Government of

India in view of the payments made by M/s. Bofors in

contravention of the assurance by the company. The Learned

Attorney General for India, in his advice received in MOD on

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July, 04, 1987, had opined that M/s. Bofors had clearly

breached its contract.

(xxv) That on 28.08.1987 the Joint parliamentary Committee was

constituted to probe into the issues arising from the report of

the Swedish National Audit Bureau relating to the Bofors’

contract of supply of 155 mm howitzer guns to India and to

ascertain the identity of the person who received, and for the

persons for which they received, payments of the amount

referred to in the said report.

(xxvi) That on 26.04.1988, the Joint Parliamentary Committee

submitted its report to the Parliamentary concluding, inter alia,

that there was no evidence to substantiate the allegation of

commissions or bribes having been paid to anyone.

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(xxvii) That on 22.01.1990 the C.B.I. registered a case being

RC.1(A)/90-ACU-IV and carried out a detailed investigation.

(xxviii) As many as ten ‘Letters Rogatory’ were issued to

various countries, including the U.K., Switzerland, Sweden,

Austria and the Bahamas. These include two Letters

Rogatory issued to the authorities in Sweden, in the years

1990 and 1998. A copy of the relevant Letter Rogatory issued

to the Swedish authorities in the year 1998 is annexed

herewith as Annexure P-1.

(xxix) That on 22nd October, 1999 the C.B.I. on the basis of the

investigation and material collected in the course of the same

filed a charge sheet in the Court of the Special Judge, Delhi,

against Shri S.K. Bhatnagar, the then Defence Secretary, Shri

Win Chadha, President of M/s. Anatronic General Company,

Mr. Ottavio Quattrocchi, Mr. Martin Ardbo, former President of

M/s. AB Bofors, Late Shri Rajiv Gandhi’s name was placed in

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column (2) under the heading name and addresses of

accused not sent up for trial, whether arrested or not arrested.

A true copy of the said charge sheet is being filed herewith

and marked as Annexure-P-2.

5. The petitioner submits that para 62 of the said charge sheet clearly stated

that investigation into the transfer of funds mentioned in the earlier

paragraph routed through various countries was still continuing in order to

find out the details of other beneficiaries. The Letters Rogatory issued by

the Court of Learned 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 were still

pending execution. The investigations concerning the role of Hersh

Chadha, Maria Quattrocchi, G.P. Hinduja, Prakash Hinduja and Srichand

Hinduja and other persons, including companies were also continuing in

terms of the said Letters Rogatory.

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6. That in execution of the Letters Rogatory already pending with the Swiss

authorities, the C.B.I. received another set of documents from the Swiss

Government on 18.12.1999, which comprised of 71 pages relating to the

Commission received by the Hinduja brothers in the said deals of the

Bofors. The said papers revealed that, besides payments made by M/s.

Bofors to M/s. Svenska Inc./W.N. Chadha and M/s. AE Services

Ltd./Ottavio Quattrocchi, payments were also made by M/s. AB Bofors to

M/s. Mc Intyre Corporation to the tune of SEK 80,797,709.92 during the

period May, 1986 to December 1986. The said company was a

Panamanian company registered in Panama on February 14, 1986. The

said amount was credited to three different accounts in three different

banks in Switzerland. The petitioner submits that there is ample material to

suggest that the Hinduja Brothers were the beneficiaries of the accounts in

question.

7. That based on the material collected during further investigation, the C.B.I.

filed further report under section 173(8) of the Cr.P.C. on 9th October, 2000

before the Learned Special Judge, Delhi against Shri Srichand P. Hinduja,

Shri Gopichand Hinduja and Shri Prakash P. Hinduja who were included

as accused persons in CC No. 39/1999 for trial for the offences under

Sections 120-B IPC read with Section 420 IPC and Section 5(2) read with

5(1) (d) of the Prevention of Corruption Act, 1947 and for the purpose for
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their trial in CC No. 39/1999 in accordance with law. A true copy of the

supplementary charge sheet dated 9th October, 2000, is being filed

herewith and marked as Annexure-P-3.

8. That on 12th December, 2000 the learned Special Judge issued summons

to the said three Hinduja brothers and they all appeared before the Special

Judge on 19th January, 2001.

9. Respondent No. 4 also appeared before the Special Judge through his

authorized respresentative.

10. That before the proceedings could commence in the case, the

accused persons raised various objections on the issue of supply of copies

of documents which were duly met. Subsequently, the accused persons

wanted to inspect the original documents available in the court’s records

and the same were inspected by counsels of accused AB Bofors and by

the counsel of accused Hinduja brothers for a number of days. Besides

inspecting relied upon documents in the case, they also requested the

court to allow the inspection of various Letter Rogatory issued by the court
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to different countries in response to which documents were received in the

court and such request was also accepted by the trial court and they

inspected all such Letters Rogatory. After the completion of aforesaid

exercise to the satisfaction of the accused, the court heard prolonged

arguments for consideration of framing of charges.

11. In the year 2001, certain documents were received from the

Swedish authorities, through the Indian embassy in Sweden. These

documents were supplied by the Swedish authorities in pursuance of the

aforementioned Letter Rogatory issued in the year 1998, which had been

followed up by subsequent communications from the CBI. A copy of these

documents, which are referred to as ‘Volume XXII’ in the impugned

judgment and order of the High Court, and which constitute the entire basis

for the impugned order, are annexed herewith as Annexure P-4.

12. That on 14th November, 2002, the Ld. Special Judge, after hearing

arguments on charge, ordered for framing of charges against the

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Respondents. A true copy of the order of the Ld. Special Judge dated

14.11.2002 is being filled herewith and marked as Annexure-P-5.

13. That on 15.11.2002, the Ld. Special Judge framed charges against

the respondents. A true copy of the charges framed by the Ld. Special

Judge on 15.11.2002 against respondent No. 1 to 4 are being filed

herewith and marked as Annexure P-6.

14. That aggrieved by the orders of the Special Judge dated 14th and

15th November, 2002, the respondents herein filed Crl. Misc. Main No.

500/2003, Crl. Misc. Main No. 501/2003, Crl. Misc. Main No. 492/2003 and

Crl. Misc. Main No. 3938/2002 respectively under section 482 of the

Cr.P.C. in the High Court of Delhi at New Delhi.

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15. That on 30.09.2003, the Ld. Judge of the High Court heard the

matter and the judgment was reserved.

16. That on 04.02.2004, the Hon’ble High Court delivered its judgment,
holding, , inter alia, that:

(i) “Charges for the offences punishable under sections

120-B/420 IPC and section 5(2) r/w section 5(1)(d) of the
prevention of Corruption Act, 1947 and section 165-A read
with section 161 IPC against the petitioners (i.e. P.P. Hinduja,
G.P. Hinduja and S. P. Hinduja) 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 the 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 under Sections 120-B/ 420 IPC for having entered
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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 the 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 the amount they would
have paid as commission to the agents viz. Hindujas, Win
Chadha and Quattrocchi.

(iii) Charge for the offence punishable under Section 465 IPC for
having made false documents as referred in the impugned
order shall be framed against M/s. AB Bofors.”

A copy of the judgment and order passed by the Delhi High

Court on 04.02.2004 is annexed herewith as Annexure P-7.

17. That Criminal Misc. Applications No. 1970/2004 in Crl. M. (M) No.

492/2003; Crl. M. No. 1971/2004 in Crl. M. (M) No. 500/2003 and Crl. M.

No. 1969/2004 in Crl. M.M. No. 501/2003 were subsequently filed on

behalf of Hinduja brothers in the High Court for modification of the

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aforesaid order dated 4th February, 2004 and it was contended by the

petitioners that the Supreme Court in its order dated 7th July, 2003 in

Criminal Appeal No. 666/2002 on the issue of framing of charges by the

trial court had observed that “The Ld. Special Judge shall proceed with the

trial of the case. While framing the charges, he shall carefully scrutinize the

material on record and other circumstances of the case in accordance with

law.” The High Court vide its order dated 9 th March, 2004 dismissed the

said applications being not maintainable and misconceived. The High

Court also held that the aforesaid applications were misconceived as the

order for framing of charges was passed by the Special Judge (on 14/15 th

November, 2002) before the aforesaid order of the Supreme Court (dated

07.07.2003) and the petitions before the High Court challenging the said

order were disposed off after hearing extensive arguments advanced by

both the parties. The High Court also observed in the above order that the

appropriate remedy available to the petitioners was by way of filing the

petitions before the Supreme Court of India. This remedy was not availed

of by the petitioners. A copy of the Order dated 09.03.2004 passed by the

Delhi High Court is annexed herewith as Annexure P-8.

18. That after the above order of the High Court, the Court of CMM

considered the matter for framing of charges and also framed charge on

26th March, 2004 against accused S.P. Hinduja, P.P. Hinduja and G.P.
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Hinduja under section 120-B and 420 r/w Section 120-B IPC. The Court

also framed charge under section 465 IPC against M/s. Kartongen Kemi

Och Forvaltning AB (formerly M/s. AB Bofors).

19. Pursuant to the framing of charges, petitions were filed on behalf of

Respondent Nos. 1-3 herein in the High Court, to call for the records for

the case pending in the Court of CMM, Delhi and to quash and set aside

the Order dated 26th March, 2004 of the Ld. CMM, Delhi framing charges.

The Delhi High Court, vide order dated 20.05.2004, disposed off the

aforesaid petitions, setting aside the order dated 26th March, 2004 and the

charges framed by the Ld. CMM, Delhi and directed that the charges be

framed strictly in accordance with the directions given by the High Court in

its earlier order of 04.02.2004. A copy of the order passed by the Delhi

High Court on 20.05.2004 is annexed herewith as Annexure P-9.

20. That when the matter was finally decided by the High Court with the

direction to frame charges, the counsel of accused AB Bofors filed a

petition for inspection of original documents. This request was not opposed
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b the CBI. At this stage, the counsel of the accused took a plea that

original documents were not available. The fact that the documents

received in execution of Letter Rogatory from Sweden and available in

court’s record were Photostat copies of the documents duly authenticated

by the Swedish Ministry of Justice was well within the knowledge of the

counsel for the accused, apart from the fact that the documents received

from Switzerland in execution of the LR were also Photostat copies of

documents authenticated by the Swiss authorities. The objection of M/s.

AB Bofors that the originals of the documents whose Photostat copies had

been received in execution of Letter Rogatory were not available, was

suitably replied to by the prosecution. A similar objection was also raised

by the respondent Nos. 1-3 herein. The above said objections were

disposed off by the Ld. CMM, Delhi vide order dated 25.11.2004 wherein it

was observed inter alia:-

“So at this stage, it can be said that these documents

came here through the responsible Government. The
question at this stage whether these documents are
legally admissible or not, can be looked into in terms of
order of Hon’ble Mr. Justice J.D. Kapoor only at the trial
stage when CBI may cause to produce the originals
also albeit copies are there on record but objection of
defence is that the same are not authenticated as
required by law.”
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A copy of the Order dated 25.11.2004 passed by the Ld. Trial Court

is annexed herewith as Annexure P-10.

21. That thereafter the Criminal M.A. No. 169 & 170 of 2005, 171 & 172

of 2005 and 173 & 174 of 2005 in Crl. Rev. No. 271, 272 and 273 of 2004

were filed on behalf of Respondent Nos. 1-3 herein and Crl. M.C. No. 763

of 2005 for intervention was filed by M/s. Kartongen Kemi Och Forvalting

AB (formerly M/s. AB Bofors) in the High Court, wherein they had made a

prayer for review/recall and/or for clarification/medication of the earlier

order dated 20.05.2004 of the High Court to the effect that in view of the

fact that there were no documents connecting them with the affair which

were capable of being proved in the course of trial, the case against them

be dropped. M/s. Kartongen Kemi Och Forvaltning AB (formerly M/s. AB

Bofors) also filed a similar petition in the court.

22. That in order to prove the authenticity of the documents, it was

suggested on behalf of CBI that the examination of the two witnesses Mr.

Sten Lindstrom, Superintendent and Mr. Tomas Lindstrand, Chief District

Prosecutor, Prosecutor’s Office, Sweden in the court at initial stage could

be considered, as their joint statement dated 22 nd February, 2005 to the

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effect “ The Photostat copies of the said original document have been sent

by the Prosecutor’s Office to the Ministry of Justisce, Sweden for their

onward transmission to the Embassy of India, Stockholm for their onward

transmission to CBI in execution of Letter Rogatory (Letter of Request)

have been duly initiated and stamped by him in token of authentication and

that the original documents were returned to the concerned parties in

Sweden as per provision of Swedish Law” had been received and a copy

of the said statement had been submitted before the Learned Judge under

the affidavit dated 7th April, 2005 filed on behalf of CBI.

23. That the arguments before the High Court were concluded on

13.05.2005. On conclusion of arguments by the prosecution and defence,

the High Court passed the following order:-

“Arguments were concluded by Mr. Datta as also by Mr. Ram

Jethmalani and Mr. Sengupta. Towards the end it transpired
that time be given to the CBI to tell this court whether it is
possible to have the documents authenticated from the keeper
of the original and/or whether the CBI is capable of producing
the originals as and when called for. For this, Mr. Datta, ASG,
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wants time to seek instructions. Two weeks time is granted for

the same.

Renotify on 27th May, 2005. This Order pertains only to the

Swedish documents which are under challenge before me

A copy of this order be given dasti to counsel for the parties

under the signatures of Court Master.”

A copy of the order dated 13.05.2005 passed by the High Court is

annexed herewith as Annexure P- 11.

24. That the matter was immediately taken up with the concerned

Swedish authorities through MEA/Embassy of India, Stockholm and the

Hon’ble High Court was informed on 27.05.2005 about the steps taken up

by CBI and that a reply from the Swedish authority was likely to take

sometime. However, the Hon’ble High Court did not take cognizance of

same and has recorded in its final judgment that:

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“After two weeks, when the matter came up for hearing Mr. Datta read out

a letter he had received, but under instructions from the CBI officers

present in court, the reply I got was as follows:-

“As stated in our affidavit what we have

submitted to this Hon’ble Court is all that
we have. Inquiries have been made from
the concerned quarters regarding the
authentication of documents from the
keeper and the production of the originals.
We do not have any information in whose custody
original documents are at present. As such, it is
not possible for the CBI at this stage to produce the
authenticated copies from the keeper of the
originals or produce the originals as and when
called for.”

25. That on 31.05.2005, the Hon’ble High Court pronounced the

impugned judgment and final order, taking an erroneous view of the law

and not correctly appreciating the facts of the case. The impugned order

holds that “from what has been noted and discussed above and on the

basis of the statements made by the prosecution, no case can 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.A. 171/2005 & 172/2005 in Crl. Rev. 272/2004, Crl. M.A. 173/2005
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& 174/2005 in Crl. Rev. 273/2004 and Crl. M.C. 763/2005. I quash all

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.”

26. The matter was examined by the CBI, in the year 2005 itself, with

regard to the feasibility of challenging the impugned order of the High

Court. While the petitioner-CBI was of the view that the impugned order is

legally unsustainable and should be challenged before this Hon’ble Court,

ultimately a decision was taken not to challenge the impugned order on the

basis of the views expressed by the Government of India and the law

officers who dealt with the matter at that stage, as the Government denied

permission to the CBI to approach this Hon’ble Court. The matter has

been reexamined now, in view of a most significant development in the

form of an interview given by one Mr. Michael Hershman to an Indian Tv

channel. In the said interview, Mr, Hershman has stated, inter alia, that he

is in possession of material which would show the payment of bribes in the

Bofors deal, and that the involvement of powerful persons may be the

reason for the checkered history of this case. The statements made by Mr.
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Hershman go to the very root of the matter. The petitioner-CBI, taking

cognizance of this interview, a copy of the transcript whereof is also being

filed herewith as Annexure P-12, has decided to conduct a further

investigation in the matter. Accordingly, an application under Section 173

(8) of the Code has also been moved before the trial court, which has been

directed by the trial Court, vide order dated 01.02.2018, to be taken up for

consideration on 17.02.2018. However, since any further investigation by

the petitioner-CBI could be hampered by the impugned order of the High

Court which has set aside all proceedings against the respondents herein

emanating from the FIR in question, it has become necessary for the

petitioner-CBI to challenge the impugned order of the High Court before

this Hon’ble Court.

27. It should also be pointed out that the petitioner CBI is, in any event,

a respondent in the pending Criminal Appeal (Nos.1369-1375/2005) filed

by a private person which challenge the same impugned judgment of the

High Court. The CBI reserves its right to place its entire case, regarding

the illegality and untenability of the impugned order, before this Hon’ble

Court as a respondent in the said appeal, and the present SLP is filed

without prejudice to its rights in the said appeals.

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28. Aggrieved by the impugned Judgment dated 31.5.2005 the petitioner

herein is filing the present Special Leave Petition on the following amongst

other:-

GROUNDS

A. FOR THAT the impugned judgment of the Delhi High Court quashes all

proceedings emanating out of the FIR in question against the respondents

herein, without permitting the mater to go even to trial. The effect is that

persons involved in a grave and serious a crime, which jeopardized

national and public interest, are allowed to scot free, without facing trial or

any punishment. The present case arises out of what is commonly

referred to as the ‘Bofors Scam’, which involved the purchase for the

Indian Army of four hundred 155mm FH 77-B guns, equipment,

ammunition etc., from M/s AB Bofors (a Swedish company), for a

consideration of Rs. 1473.72 crores. It is the petitioner’s case, based on

the material collected by it during the course of the investigation, that in

1986-1987, an enormous sum (approximately Rs. 64 crores) was paid to

the Respondent Nos. 1-3 herein by M/s AB Bofors, as ‘commission’ in

order to aid the transaction. This was over and above commission
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amounts paid to other individuals, who have passed away since then. In

the process, the procurement process was sullied and its sanctity vitiated,

the country’s reputation tarnished, and the Government was cheated of

legitimate monies payable to it. Unfortunately, despite the best efforts of

the petitioner, and the passage of the long period of time since then, the

perpetrators are yet to be brought to book.

B. FOR THAT the impugned judgment and order of the High Court is

premised on the finding that certain documents on which the petitioner

relies to make out its case against the respondents, which were duly

obtained from the concerned authorities in Sweden, are neither available in

original nor as duly authenticated copies. Based on this finding, the

Hon’ble High Court observes, in paragraph 18 of the impugned judgment,

that “it seems to me that if these documents are not proved by satisfactory

secondary evidence and will not be ever proved at the trial, it will be a cruel

joke on the accused to expose them to a long and arduous trial and waste

public time and money which will be totally out of proportion to the results

to be achieved. In fact, nothing will be achieved.” The impugned judgment

is wholly untenable and contrary to settled legal principles, and is liable to

be set aside.
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C. FOR THAT the impugned order is without jurisdiction. The impugned

order has been passed on applications filed by the accused seeking recall

of earlier orders (dated 04.02.2004 and 20.05.2004) of the High Court. By

way of the first of these orders, the Hon’ble High Court had set aside the

charges originally framed by the trial court against all the accused persons,

including under the Prevention of Corruption Act, and directed the trial

court to frame charges against the respondents herein under provisions of

the Indian Penal Code (Sections 420 and 120B). When the trial Court

framed charges pursuant to this order of the High Court, the matter was

again taken up to the High Court by the accused, and the second order of

20.05.2004 was passed, holding that the charges as framed do not

conform to the directions given by the High Court in its order of

04.02.2004, and remanding the matter again to the trial court. Thereafter,

applications for recall/modification of these orders were filed before the

High Court, which have been allowed by the impugned order.

It is well settled that the High Court has no jurisdiction to review or

recall its final orders in a criminal case, on account of the bar under

Section 362 of the Code of Criminal Procedure, 1973 (hereinafter the

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Code). The only exception permitted by this Hon’ble Court, where a High

Court exercising its inherent can recall an order passed by it in a criminal

case, is where the order of the High Court is vitiated on account of want of

jurisdiction or was passed in violation of natural justice [See, for instance,

State of Punjab v Davinder Pal Singh Bhullar – (2011) 14 SCC 770, Hari

Singh Mann v Harbhajan Singh Bajwa – (2001) 1 SCC 169, Mohd. Yaseen

v State of U.P. – (2007) 7 SCC 49, Sunita Jain v Pawan Kumar Jain –

(2008) 2 SCC 705, Moti Lal v State of M.P. – (2012) 11 SCC 427, Nazma

v Javed @ Anjum – (2013) 1 SCC 376 and Abdul Basit v Abdul Kadit

Choudhary – (2014) 10 SCC 754]. The present case admittedly does not

involve either any question of lack of jurisdiction of the High Court, insofar

as the earlier orders (dated 04.02.2004 and 20.05.2004) of the High Court

are concerned, nor any question of violation of natural justice in the

passing of the said orders. On the other hand, as a perusal of paragraphs

18, 54 and 58 of the impugned order shows, the High Court has recalled

the earlier orders only on the basis that charges cannot be framed in this

case as certain documents obtained from the Swedish authorities “are not

capable of being proved”. The impugned order is, therefore, wholly without

jurisdiction and is liable to be set aside on this short ground alone.

D. FOR THAT the impugned order wrongly relies, in this regard, on the

decision of this Hon’ble Court in A.R. Antulay v R.S. Nayak – (1988) 2

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SCC 602, and terms Section 362 of the Code as a “mere procedural

restriction” (paragraph 26 & 29 of the impugned order). This is in clear

disregard of the decisions cited earlier, which settle the issue. The

judgment in Antulay’s case has no bearing whatsoever on the issue at

hand, as it does not deal with the question of the jurisdiction of the High

Court to review/recall its orders. On the other hand, that was a case where

a larger Bench of 7 Judges of this Hon’ble Court overruled directions

issued by a smaller Bench of 5 Hon’ble Judges of this Hon’ble Court on the

basis that the said directions resulted in a denial of the guaranteed

fundamental rights of one of the parties. The present case is not such a

case at all. Furthermore, this Hon’ble Court referred, inter alia, to Article

137 of the Constitution, which confers on this Hon’ble Court the power to

review any of its orders. The said provision has no application to the High

Court.

E. FOR THAT the High Court also wrongly holds that the decisions relied on

by the petitioner herein, in support of this proposition, including Sooraj Devi

v Pyare Lal & Anr. (1981) 1 SCC 500, “stand modified by the judgment in

Antulay’s case. Interestingly, the judgment I Sooraj Devi has been relied

on and affirmed by this Hon’ble Court as recently as in Ajay Singh v. State

of Chhattisgarh, (2017) 3 SCC 330, where this Hon’ble Court held thus: 
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“15. Interpreting the said provision in the context of

exercise of inherent power of the High Court under
Section 482 CrPC this Court in Sooraj Devi v. Pyare
Lal[Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 : 1981
SCC (Cri) 188] held thus: (SCC p. 502, para 5)
“5. The appellant points out that he invoked the inherent
power of the High Court saved by Section 482 of the
Code and that notwithstanding the prohibition imposed
by Section 362, the High Court had power to grant
relief. Now it is well settled that the inherent power of
the court cannot be exercised for doing that which is
specifically prohibited by the Code (Sankatha
Singh v. State of U.P.[Sankatha Singh v. State of U.P.,
AIR 1962 SC 1208 : (1962) 2 Cri LJ 288] ). It is true that
the prohibition in Section 362 against the court altering
or reviewing its judgment is subject to what is “otherwise
provided by this Court or by any other law for the time
being in force”. Those words, however, refer to those
provisions only where the court has been expressly
authorised by the Code or other law to alter or review its
judgment. The inherent power of the court is not
contemplated by the saving provision contained in
Section 362 and, therefore, the attempt to invoke that
power can be of no avail.”

We have referred to the aforesaid decision to illustrate

that CrPC confers absolute sanctity to the judgment
once it is pronounced. It does not conceive of any kind
of alteration.”

F. FOR THAT the impugned order is contrary to the law laid down by this

Hon’ble court regarding the nature of the enquiry to be undertaken at the

stage of framing of charge. In the impugned order, in substance and

effect, the High Court has examined and assessed the evidence and

materials produced by the prosecution, and concluded that the material

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would be insufficient for a conviction. This approach is in the teeth of the

catena of decisions of this Hon’ble Court which hold that at the stage of

framing of charge, the Court is required only to examine the materials with

a view to be satisfied that a prima facie case of commission of the offence

is made out against the accused. The Court is not to weigh the evidence

at this stage, as the assessment of the evidence is to be undertaken only

at the stage of trial [ See State of Delhi v Gyan Devi – (2000) 8 SCC 239,

Hem Chand v State of Jharkhand – (2008) 5 SCC 113, State of Madhya

Pradesh v Mohanlal Soni – (2000) 6 SCC 338, Amit Kapoor v Ramesh

Chander & Anr. – (2012) 9 SCC 460]. In the present case, the Hon’ble

High Court has prejudged the matter at the stage of framing of charges,

and not allowed the matter to even proceed to trial, resulting in a complete

miscarriage of justice.

G. FOR THAT the High Court has erred in placing reliance on the decision of

this Hon’ble Court in CBI v. V.C. Shukla, (1998) 3 SCC 410. In paragraph

35 of the impugned judgment and order, the High Court refers to

paragraph 15 of this decision as laying down the law that “at the time of

framing charges, the Court has to decide whether the material collected

during investigation can be converted into admissible evidence at the

ensuing trial”. It is submitted that this Hon’ble Court did not lay down any

such legal principle in the said case, and paragraph 15 of the decision of
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this Hon’ble Court only records one portion of the High Court judgment in

that case. Paragraph 15 of the judgment of this Hon’ble Court in V.C.

Shukla’s case merely reads thus:

“15. After having held that the documents were neither books

of account nor kept in the regular course of business the High
Court observed that even if they were admissible under
Section 34, they were not, in view of the plain language of the
section, sufficient enough to fasten the liability on the head of
a person, against whom they were sought to be used. As,
according to the High Court, the prosecution conceded that
besides the alleged entries in the diaries and the loose sheets
there was no other evidence it observed that the entries would
not further the case of the prosecution. As regards the
admissibility of the documents under Section 10 the High
Court held that the materials collected during investigation did
not raise a reasonable ground to believe that a conspiracy
existed, far less, that the respondents were parties thereto
and, therefore, these documents would not be admissible
under Section 10 also. The High Court next took up the
question as to whether those documents could be admitted
under Section 17 and observed that the admissions, if any,
therein could be used against the Jains only and not against
Shri Advani and Shri Shukla. The High Court, however,
observed that the production and proof of the documents by
themselves would not furnish evidence of the truth of their
contents and that during investigation CBI did not examine
any witness or collect materials to prove the same. With the
above findings and observations, the High Court arrived at the
following conclusion:

“In the present case there is no evidence against the

petitioners except the diaries, notebooks and the loose sheet
with regard to the alleged payments (vide MRs 68/91, 72/91
and 73/91). The said evidence is of such a nature which
cannot be converted into a legal evidence against the
petitioners, in view of my above discussion.

There is no evidence in the instant case with regard to the

monies which are alleged to have been, received by the Jains
for the purpose of disbursement. There is no evidence with
regard to the disbursement of the amount. Then there is no
evidence with regard to the fact to prove prima facie that the
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petitioners i.e. Shri L.K. Advani and Shri V.C. Shukla accepted
the alleged amounts as a motive or reward for showing favour
or disfavour to any person and that the said favours and
disfavours were shown in the discharge of their duties as
public servants as contemplated by Section 7 of the Act
(Prevention of Corruption Act, 1988). Thus the Court will have
to presume all the above facts in the absence of any evidence
in connection therewith to frame charges against the
petitioners.”

As would be seen from a complete reading of the judgment of this Hon’ble

Court, what weighed with this Hon’ble Court in finally upholding the

decision of the High Court was the fact that no prima facie case was

made out against any of the accused in that case. This finding, which is

consistent with the law laid down by this Hon’ble Court regarding the scope

and nature of the enquiry at the stage of framing of charges, is evident

from paragraph 52 of the judgment of this Hon’ble Court, which reads thus:

“52. Before we conclude it need be mentioned that another

question of considerable importance that came up for
consideration in these appeals was whether Members of
Parliament come within the definition of “public servant” in the
Prevention of Corruption Act so as to make the respondents
liable for prosecution for alleged commission of offences
thereunder. We did not deem it necessary to go into that
question as we found, proceeding on the assumption that they
could be so prosecuted, that no prima facie case was made
out against any of the respondents to justify the charges that
were framed against the Jains and Shri Shukla (in one case);
and were to be framed against the Jains and Shri Advani (in
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the other) pursuant to the order of the trial court. Accordingly,

we dismiss these appeals keeping this question of law open.”
(emphasis supplied)

H. FOR THAT the Hon’ble High Court has erred in rendering findings of fact,

at this stage of the case, in favour of the accused persons. These findings,

which could only have been rendered by the trial court after a thorough

examination of the evidence and materials on record following a full trial,

include the following observations:

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“39. Brother Kapoor,J, in his judgment has referred to the

nine payments received by Meintyre Corporation. These
payments are established by the Swiss documents about
which there is no dispute. Even after receiving these from the
Swiss authorities, the CBI through the Indian Embassy told
the Swiss authorities that the documents sent do not connect
the payments with the Bofors contract. In the Swedish
documents, which form part of Vol. XXII, again the payments
do not refer to the Bofors Gun contract except in two, namely,
D 283 and D 291. Kapoor,J, records in the same paragraph
that Investigating Judge was not sure of the veracity of these
two documents These two documents are annexed to the
Affidavit filed by Shri Mishra of the CBI on behalf of the
prosecution. The words “6(9)/84/D(GS.IV) av 860324 and
6(9)/84/D(GS.IV) av 860324” are in the handwriting of
somebody. Unless the person who wrote those words is
identified and it is proved that his position is such that his
writing those words proves the truth of the contents, the
documents are utterly useless. Based on this dubious
material, to allow a prosecution to go on for many more years,
in respect of a transaction of more than 20 years vintage, is
sheer persecution, waste of public time and money. I cannot
foresee any chance of the successful termination of such a
useless prosecution. It was for this reason, I thought of giving
the CBI an opportunity to bring the case back on rails. As
already noted, the CBI has spurned the offer.
40. I have repeatedly asked the learned Additional Solicitor
General whether there is any other evidence to connect these
payments with the Bofors contract and whether there is any
evidence to show that the Hindujas were in fact Indian agents,
especially employed for this contract? No clear cut answer
has been furnished and if any evidence existed it would have
been mentioned in the judgment of Kapoor,J. I am, therefore,
inclined to accept the statement of the Petitioners that there is
no such evidence. On the other hand, two documents, Exhibit
D-292 and D-293, which are annexed to the Affidavit of Shri
Mishra for CBI, show that status of the Hindujas was of
consultants and not of agents. The document, D-293 of 29-6-
1984, shows that the remuneration payable to the Hindujas
was also for market expenses incurred by them. Obviously
this has nothing to do with the securing of the Bofors contract.
The petitioner’s case that they were merely consultants in the
counter trade obligations of Bofors is supported even by the
disputed documents.
41. It is not the case of the Petitioners that the photo copies
in Vol. XXII are the very photo copies which N.Ram of Hindu
supplied. It is likely that they are but the Petitioners have not
undertaken to prove this. It may be that the documents in
Vol. XXII are another set of photo copies either made from the
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Hindu document or procured from some other undisclosed

source.
42. When the matter was discussed in the Trial Court, the
learned Magistrate was made to believe that CBI may cause
to produce the originals. Now I find that this is just not
possible.
43. I am not impressed by paragraph 12 of the Affidavit as it
is plain hear-say and can not convert the photo copies into
certified copies as understood by law.”

I. FOR THAT grave injustice has been done in this case, as the Hon’ble High

Court has arrived at final conclusions in the matter on the basis of an

incomplete and selective analysis of the material available. The entire

record of the case is extremely voluminous, with documents running into

thousands of pages, apart from more than 60 witnesses who were to be

examined during the trial. It is apparent from the impugned order that all of

this material has not been examined by the High Court.

J. FOR THAT even otherwise, the impugned judgment wrongly holds that the

documents in question, which were obtained from the competent

authorities of Sweden, are not entitled to be treated as evidence in terms

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of Section 166A of the Code of Criminal Procedure, 1973. Section 166A

(3) of the Code expressly states that every document received pursuant to

a Letter of Request under Section 166A (1) “shall be deemed to be the

evidence collected during the course of investigation under this Chapter”.

A ‘Letter of Request’ under Section 166A (1) may be sent to “a court or an

authority” in a foreign country. The Hon’ble High Court wrongly holds, in

paragraph 54 of the impugned order that a ‘Letter Rogatory’ can only be

issued to a judicial authority in Sweden.

K. FOR THAT the Hon’ble High Court erroneously proceeds (in paragraphs

51 - 54 of the impugned order) on the basis that the documents in question

were obtained pursuant to a request made by the CBI directly to the Indian

Embassy and the Swedish authorities, and not pursuant to any Letter

Rogatory, despite the fact that a Letter Rogatory had, in fact been issued

to the Swedish authorities in 1998, and the document were made available

to the CBI, through the Indian embassy in Sweden, in 2001 pursuant to the

said Letter Rogatory. This fact is established beyond doubt, inter alia, by

the ‘joint statement’ of two officers from the Prosecutor’s Office in Sweden,

which is extracted in paragraphs 19 and 31 of the impugned order, and

reads thus:
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“The photostat copies of the said original documents have

been sent by the Prosecutor’s Office to the Ministry of Justice,
Sweden for their onward transmission to the Embassy of
India, Stockholm for their onward transmission to CBI in
execution of Letters Rogatory (letter of request) have been
duly initialed and stamped by him in token of authentication
and that the original documents were returned to the
concerned parties in Sweden as per provision of Swedish
law”.

This fact is further corroborated by the correspondence from the

Swedish authorities, which expressly refer to the request for legal

assistance made in 1998. Furthermore, the Hon’ble High Court

misinterprets the reference to the subsequent communications from the

CBI officers, which were merely addressed to the concerned authorities in

Sweden to follow up on the Letter Rogatory of 1998, as being proof of the

fact that the documents in question were supplied by the Swedish

authorities independent of the said Letter Rogatory of 1998. Thus, the

High Court holds Section 166A of the Code to be inapplicable on a wholly

faulty premise. It may also be reiterated that the High Court has wrongly

undertaken the exercise of weighing and assessing evidence at this stage

of the case, and should have left these matters to be decided by the trial

court in course of the trial in accordance with law.

L. FOR THAT the Hon’ble High Court also wrongly holds, in paragraph 48,

that “the word evidence in Section 166A is used in the general sense of
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something which may have some probative value if capable of being

converted into evidence as defined in the Evidence Act. It is fallacious to

treat it as evidence for the purpose of the eventful trial”.

M. FOR THAT in any event, the High Court has fallen in error in holding that

the requirements of Section 78 (6) of the Indian Evidence Act are not, and

cannot be, satisfied in this case (paragraph 36 of the impugned order).

The High Court, in this regard, apart from exceeding the scope of the

enquiry at this stage of the case, as already pointed out earlier, has failed

to appreciate the purport and legal effect of the aforementioned joint

statement of the Prosecutor’s office in Sweden.

N. FOR THAT, without prejudice and in the alternative to the other grounds

raised above, it is submitted that the Hon’ble High Court has erred in

proceeding on the basis that the documents obtained from the Swedish

authorities are ‘public documents’ to which Section 78 of the Indian

Evidence Act would apply. The documents in question, which are primarily

records of banking transactions with private foreign banks, as well as

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documents pertaining to the private company M/s Bofors, are not in the

nature of public documents at all, as defined in Section 74 of the Indian

Evidence Act. Section 78 would, therefore, have no application to these

documents. This being so, the very foundation of the impugned judgment

of the High Court would stand removed.

O. FOR THAT the Hon’ble High Court erred in holding that if the documents

are not treated as public documents, then no material exists to prove the

documents “as private documents”. It is again reiterated that the question

as to whether sufficient material exists to prove the documents in question

is a matter for trial, and the Hon’ble high Court has erred in undertaking

the exercise of weighing the evidence and the material on record. The

relevant portions of the impugned order read thus:

“56. Let me again summarise. If these documents have come

from the Department of Justice, these documents will be private
documents which form the record of public officers of a foreign
country in which event they are ‘public documents’ as defined in
Section 74(1)(iii) of the Indian Evidence Act. They can be
proved only under Section 78 clause (6) of the Indian Evidence
Act. It is not denied that no such authentication exists in
respect of these documents. Under the circumstances, these
documents can never be proved.

57. If I assume that these documents are not ‘public

documents’ at all as defined in the Evidence Act but private
‘documents’ then they have to be proved like any other
document. Not only their execution has to be proved but the
truth of the contents of the documents has to be proved. No
such material exits to prove these as ‘private documents’.

58. Putting myself in the position of brother Kapoor,J, I must

ask myself one question – would I have issued the directions to
frame conspiracy charge of cheating. If it had been brought to
my notice that these documents are not capable of being
proved? My answer is clear “No”. I must accordingly prevent
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serious injustice and court’s process and recall the order of this
court made by me on 2.5.2004 and of Kapoor,J, on 4.2.2004 to
the extent that it commands the trial court to frame charges
when none were capable of being framed.

P. FOR THAT the impugned order wrongly proceeds on the basis that no

case can be made out against the respondent herein without relying on the

documents obtained from the Swedish authorities, and that the said

documents cannot be proved even during trial. The admissibility or

otherwise, and the relevance, of the documents in question is a matter to

be decided at the stage of trial, alongwith the other material and evidence

produced by the petitioner herein. The other materials include documents

obtained from India itself, such as those obtained from the ‘Hindu’, as well

as documents obtained, pursuant to Letters Rogatory, from the authorities

in Switzerland. These documents are specifically referred to in the

Supplementary chargesheet filed in this case. It is also noteworthy that the

documents obtained from the Swedish authorities, which are referred to in

the impugned order and which constitute the entire basis for the impugned

order, were received by the CBI after the filing of the supplementary

chargesheet. Thus, even assuming for the sake of argument that the

Hon’ble High Court is correct in regard to its analysis of the Swedish

documents, the petitioner-CBI was in a position to establish its case

against the respondents herein on the basis of other independent material

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and documents. This aspect of the matter has not been adverted to at all

by the Hon’ble High Court. Further, all of these materials and documents

would have to be weighed by the trial court, in the course of the trial, to

arrive at a finding of guilt or innocence of the accused persons. This

process cannot be short-circuited, as it were, as has been done by the

impugned order of the High Court.

Q. FOR THAT the documents collected by the petitioner-CBI in pursuance of

Letters Rogatory are relevant/admissible under section 166-A (3) of

Cr.P.C. in as much as the same were collected by the competent authority

in Sweden i.e. Chief District Prosecutor, Stockholm in execution of the

Letters Rogatory sent by the Court of the Special Judge, Delhi. The copies

of documents collected by the said authorities were authenticated as per

Swedish law and forwarded to the CBI through proper channels of the

Ministry of Justice, Stockholm, Sweden, the Embassy of India, Stockholm

and the Ministry of External Affairs, Government of India.

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R. FOR THAT the aforesaid authenticated copies of documents bear the seal

of the Ministry of Justice, Stockholm and the signature of Mr. Per Hedvall,

the then Dy. Director, Ministry of Justice, Stockholm, Sweden. Mr. Per

Hedvall and Mr. Tomas Lindstrand, Chief District Prosecutor, Stockholm

who had collected the aforesaid evidence have been cited as Prosecution

Witness to prove the authenticity of the aforesaid documents.

S. FOR THAT the joint statement dated 22.02.2005 from Mr. Sten Lindstrom,

Superintendent and Mr. Tomas Lindstrand, Chief District Prosecutor,

Prosecutor’s Office, Sweden was filed in the Hon’ble High Court at the time

of hearing of arguments on the criminal revision petitions filed on behalf of

the respondents as referred above. It was specifically mentioned in the

aforesaid joint statement “The Photostat copies of the said original

documents have been sent by the Prosecutor’s Office to the Ministry of

Justice, Sweden for their onward transmission to the Embassy of India,

Stockholm for their onward transmission to CBI in execution of Letters

Rogatory (Letter of Request) have been duly initiated and stamped by him

in token of authentication and that the original documents were returned to

the concerned parties in Sweden as per provision of Swedish Law”. This

conclusively proves the authenticity of the documents.

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T. FOR THAT the counsel for the petitioner (CBI) had also suggested to the

Ld. Judge of the High Court at the time of hearing of arguments on the

aforesaid criminal revision petitions of the respondents that the

examination of the aforesaid two Swedish witnesses who had signed the

aforesaid joint statement in token of authentication of documents

forwarded to CBI in execution of the Letter Rogatory, could be considered

at initial stage which was not taken into account by the Ld. Judge of the

High Court.

U. FOR THAT the interpretation accorded by the High Court, to Section 166A

of the Code and Sections 76 and 78 of the Indian Evidence Act, has far

reaching consequences for all cases involving investigations abroad.

Hence, the matter deserves to be considered and examined by this

Hon’ble Court for an authoritative adjudication of these issues.

V. FOR THAT the Ld. Judge of the High Court has also erred in concluding

that the provisions of sections 78(6) of the Indian Evidence Act would

apply to the authentication of documents received from Sweden in the

present case. The copies of aforesaid documents have been initialed and
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stamped with the seal of the Ministry of Justice, Sweden by Mr. Per

Hedvall, the then Dy. Director in token of authentication of the said

documents and Mr. Hedvall has been cited as a Prosecution Witness.

Therefore, it would be erroneous to conclude that the documents

forwarded by the Swedish authorities had not been properly authenticated

and that the provisions of Indian Evidence Act would apply to the said

foreign documents. The said documents have been authenticated as per

the Swedish Law as mentioned in the joint statement dated 22.02.2005 of

Mr. Sten Lindstrom, Superintendent and Mr. Tomas Lindstrand, Chief

District Prosecutor, Prosecutor’s Office, Sweden.

W. FOR THAT the Hon’ble High Court was not justified in expressing

disapproval at the investigation carried out by the CBI. It is most

respectfully submitted that if the Hon’ble High Court had not exceeded its

jurisdiction and passed the impugned judgment and order, the case would

have gone to trial and the guilt or innocence of the accused persons would

have been established. The observations made by the High Court in

paragraph 66 of the impugned judgment are wholly unwarranted and

unjustified, and deserve to be expunged by this Hon’ble Court.

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PRAYER

In view of the facts stated and averments made hereinabove, the petitioner

most respectfully prays that this Hon’ble High Court be pleased:

(a) To grant special leave to appeal against judgment and order of the High

Court of Delhi at New delhi dated 31st May, 2005 in Crl. M.A. No. 169 &

170, 171 & 172, 173 & 174 and Crl. M.C. No. 763 of 2005 in Crl. Rev.

Nos. 271, 272 and 273 of 2004.

(b) to set aside the same, and

(c) to pass such other order or orders as this Hon’ble Court may deem fit

and proper in the facts and circumstances of the case.

AND FOR SUCH ACT OF KINDNESS THE PETITIONER SHALL

EVER REMAIN GRATEFUL AS IN DUTY BOND.

Drawn by:

Settled by:
Filed by:
Drawn on:
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Filed on:
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IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)
I.A. NO. OF 2018
IN
SPECIAL LEAVE PETITION (CRL) NO. OF 2018

Central Bureau of Investigation …. Petitioner

Versus

Shri Srichand P. Hinduja & Ors. ….Respondents

APPLICATION FOR CONDONATION OF DELAY IN FILING THE SPECIAL

LEAVE PETITION

1. The petitioner has filed the accompanying petition under Article 136 of the

Constitution of India seeking Special Leave to appeal against the judgment

and order of the High Court of Delhi at New Delhi dated 31.05.2005 in Crl.

M.A No. 169 & 170, 171 & 172, 173 & 174 And Crl. M.C. No. 763 of 2005

in Crl. Rev. Nos. 271, 272 and 273 of 2004 whereby a Learned Judge of

the High court quashed all proceedings against S.P. Hinduja, G.P. Hinduja

and P.P. Hinduja emanating from FIR/case No. RC.1(A)/90-ACU-IV/SIG,

New Delhi and discharged them from the case and also quashed order

dated 26.03.2004 of the Chief Metropolitan Magistrate, Delhi framing

charges against M/s. Kartongen Kemi Och Forvaltning AB (formerly M/s.

AB Bofors) and discharged the company from the case which were framed

in terms of the judgment dated 4th February, 2004 of the High Court of

Delhi. The facts which have led to the filing of the SLP have been stated in

detail therein, which may be read as part of this application. The same are

not repeated in this application for the sake of brevity.

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2. There has been some delay in the CBI approaching this Hon’ble Court, as

the impugned order was passed by the High Court on 31.05.2005. It may

be stated at the outset that this delay deserves to be condoned in view of

the facts of this case. It may also be stated that the matter was examined

by the CBI, in the year 2005 itself, with regard to the feasibility of

challenging the impugned order of the High Court. While the petitioner-

CBI was of the view that the impugned order is legally unsustainable and

should be challenged before this Hon’ble Court, ultimately a decision was

taken not to challenge the impugned order on the basis of the views

expressed by the Government of India and the law officers who dealt with

the matter at that stage, as the Government denied permission to the CBI

to approach this Hon’ble Court.

3. The matter has been reexamined now, in view of a most significant

development in the form of an interview given by one Mr. Michael

Hershman to an Indian Tv channel. In the said interview, Mr. Hershman

has stated, inter alia, that he is in possession of material which would show

the payment of bribes in the Bofors deal, and that the involvement of

powerful persons may be the reason for the checkered history of this case.

The statements made by Mr. Hershman go to the very root of the matter.
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The petitioner-CBI, taking cognizance of this interview, a copy of the

transcript whereof is also being placed before this Hon’ble Court alongwith

this SLP, has decided to conduct a further investigation in the matter.

Accordingly, an application under Section 173 (8) of the Code has also

been moved before the trial court. This application has been directed by

the trial Court, vide order dated 01.02.2018, to be taken up for

consideration on 17.02.2018. However, since any further investigation by

the petitioner-CBI could be hampered by the impugned order of the High

Court which has set aside all proceedings against the respondents herein

emanating from the FIR in question, it has become necessary for the

petitioner-CBI to challenge the impugned order of the High Court before

this Hon’ble Court.

4. It is submitted that this new development, which fundamentally alters the

landscape, as it were, of this case, would be sufficient to explain the filing

of the SLP at this juncture, and to condone the delay in approaching this

Hon’ble Court. The present, it is also respectfully submitted, is a fit case

for applying the settled principle of criminal jurisprudence that ‘a crime

never dies’. In Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC

394, this Hon’ble Court traced this principle of criminal justice to “the well

known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar

to Crown in proceeding against offenders)”. This Hon’ble Court also took

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the view that mere delay in approaching a Court of law “would not by itself

afford a ground for dismissing the case”. In the present case, given the

gravity of the offences and the weighty public interest involved, it is

submitted that this Hon’ble Court would decide this petition not on the

basis of the time that may have elapsed since the passing of the impugned

judgment, but on the touchstone of the necessity to ensure that the guilty

do not escape the long arm of the law and go unpunished.

5. It is reiterated that the delay in approaching this Hon’ble Court was

occasioned on account of the fact that the Government in power at the

relevant time denied permission to the CBI to move this Hon’ble Court. It

may also be stated that since the appeals filed by the private parties

remained pending before this Hon’ble Court since 2005, after the decision

by the then Government of India denying permission to the CBI to

approach this Hon’ble Court, the matter came to light in December 2016

when the said pending appeals were listed before this Hon’ble Court. Prior

to this, the matters had been listed before the Court in October 2008 and

February 2010. Thereafter, in January, 2017, it was decided that the since

the CBI is a respondent, in any case, in the appeals already pending

before this Hon’ble (filed by private parties), it would place its submissions

regarding the impugned judgment before this Hon’ble Court in that

capacity. However, as stated earlier, significant subsequent events have

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completely overtaken the matter, and have necessitated the filing of this

SLP at this vital juncture.

6. In this regard, the kind attention of this Hon’ble Court is invited to the

following sequence of events which shows the decision making process at

the relevant time:

DEVELOPMENTS DATE

Impugned order of Delhi High Court 31-05-2005

Certified copy applied 31-05-2005

Preparation of Certified copy 18-06-2005

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Certified copy obtained 20-06-2005

Examination of the impugned order by CBI:

Comments of IO 29-06-2005
Comments of DIG 25-07-2005
Comments of ALA 02-08-2005
Comments of JD 04-08-2005
Comments of AD 05-08-2005
Comments of DoP 02-09-2005
Comments of DCBI 07-09-2005

Letter sent by CBI to DoPT seeking permission for 08-09-2005

filing SLP

Letter of DoPT refusing permission to file SLP, inter 25-11-2005

alia, on the basis of the opinion rendered by the Ld.
Additional Solicitor General of India

7. It is respectfully submitted that the delay in approaching this Hon’ble Court

has been caused on account factors beyond the control of the petitioner-

CBI. The decision to approach this Hon’ble Court at this stage is based on

cogent and germane considerations, arising out of recent subsequent

events. Furthermore, grave injustice will be caused in the case if the

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impugned order is allowed to stand, and the accompanying SLP is not

entertained by this Hon’ble Court. It may not be out of place to mention

that the present case arises out of what is commonly referred to as the

‘Bofors Scam’, which involved the purchase for the Indian Army of four

hundred 155mm FH 77-B guns, equipment, ammunition etc., from M/s AB

Bofors (a Swedish company), for a consideration of Rs. 1473.72 crores. It

is the petitioner’s case, based on the material collected by it during the

course of the investigation, that in 1986-1987, a mind boggling sum

(approximately Rs. 64 crores) was paid to the accused persons including

Respondent Nos. 1-3 herein by M/s AB Bofors, as ‘commission’ in order to

aid the transaction. This was over and above commission amounts paid to

other individuals, who have passed away since then. In the process, the

procurement process was sullied and its sanctity vitiated, the country’s

reputation tarnished, and the Government was cheated of legitimate

monies payable to it. Unfortunately, despite the best efforts of the

petitioner, and the passage of the long period of time since then, the

perpetrators are yet to be brought to book. The impugned judgment of the

Delhi High Court quashes all proceedings emanating out of the FIR in

question against the respondents herein, without permitting the mater to go

even to trial. The effect is that persons involved in so grave and serious a

crime, which jeopardized national and public interest, have been allowed to

scot free, without facing trial or any punishment.

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8. In the circumstances the petitioner respectfully submits that an order by

this Hon’ble Court condoning the delay in the present case is essential for

justice being served in this case.

9. In view of the facts stated and averments made hereinabove, it is

respectfully prayed that this Hon’ble Court may be pleased to:

(i) Condone the delay of _____ days in the filing of the accompanying

SLP;

(ii) Pass such other and/or further orders that this Hon’ble Court deems

fit in the facts of the present case.