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Delhi High Court

Srichand P. Hinduja
State Through C.B.I. [Along With … on 31 May, 2005

Equivalent citations: 121 (2005) DLT 1, 2005 (82) DRJ 494

Bench: R Sodhi

1. This judgment shall dispose of Crl. M.A. 169/2005 and 170/2005 in Crl. Rev. 271/2004, Crl. M.A. 171/2005 and 172/2005 in Crl. Rev. 272/2004, Crl. M.A. 173/2005 and 174/2005 in Crl.Rev. 273/2004, preferred by Mr. Srichand P. Hinduja, Mr. Prakash P. Hinduja and Mr. Gopichand P. Hinduja (for short collectively called ‘Hinduja Brothers’) and Crl. M.C. 763/2005, filed by M/s Krtongen Kemi Och Forvaltning AB (for short ‘the Bofors Company’) for intervention. The aforesaid matters have been specially directed and planed before me for adjudication by order of Hon’ble the Chief Justice.

2. I do not propose to give a detailed history of this case, but, brief facts of the case, as put by the Hinduja Brothers, are that pursuant to an FIR registered on 22.1.1990, a long and tortious investigation was undertaken which ultimately resulted in filing of a charge-sheet dated 22.10.1999. In this charge-sheet, the Hinduja Brothers were not cited as accused although the Bofors Company was made accused. In other words even though the CBI had received documents showing nine payments to a company called ‘Mclntyre Corporation, owned by one of the Hinduja Brothers, namely, Prakash P. Hinduja. The Hinduja Brothers were not included in the charge-sheet since there was no evidence that the payments made to Mclntyre Corporation constituted the so-called kickback in the Bofors contract dated 24.3.1986. My attention was drawn to letter dated 9.6.2000 addressed by the Indian Embassy in Berne to the Swiss Investigating Agency enclosing a note by the CBI, paragraph 3(viii) of which reads as under:

“Documents received till date did not indicate that the amount paid into the bank account of the petitioner and his brothers were in respect of the gun contract, as was the case in respect of payment made to A.E. Services and M/s Svenska Inc.”

3. The Swiss authorities were requested to secure further documents and also to examine the three Hinduja Brothers, which request was acceded to. However, without waiting for the receipt of the evidence from the Swiss Authorities, the CBI filed a second charge-sheet on 9.10.2000 implicating the Hinduja Brothers.

4. Proceedings on this charge-sheet commenced before the Special Judge where, after supply of documents, the accused moved a petition claiming violation of rights under Article 21 of the Constitution terming the exercise as ‘a persecution’. The Special Judge by his order dated 29.08.2002 rejected the Hinduja Brothers’ contention and vide his order dated 15.11.2002 proceeded to frame charges against them and late Shri Rajiv Gandhi and others for conspiracy to commit offence of cheating and bribery punishable under Section 120 read with Section 420 IPC and Sections 5 and 5 of the Prevention of Corruption Act, 1947. Further charges against Hinduja Brothers for receiving nine payments as bribes punishable under Sections 161 and 165 read with Section 34 IPC as also a charge of cheating the Government of India and abetment of cheating in respect of representation in letter dated 10.3.198.

5. Charges framed against the Hinduja Brothers were challenged by way of a petition under Section 482 Cr.P.C. before the High Court which came up for hearing before my brother, J.D. Kapoor, J., who by his judgment dated 4.2.2004, quashed all charges under the Prevention of Corruption Act and bribery under the Indian penal Code, completely exonerating the late Shri Rajiv Gandhi and Shri S.K. Bhatnagar but directing that a charge under Section 120B read with Section 420 IPC need be framed against the Hinduja Brothers. Since the only surviving charge was friable by a Magistrate, the case was placed before the Chief Metropolitan Magistrate (for short ‘the Magistrate’), Delhi, for trial.

6. The matter was then argued before the Magistrate on the elements of charge which had been directed need be framed by Kapoor, J. The learned Magistrate, however, framed not only a charge of 120B read with Section 420 IPC but also a substantive charge under Section 420 IPC against the Hinduja Brothers. The aforesaid order was once again challenged in the High Court and, in due course, the matter was heard by me. By order dated 20.5.2004 I set aside the extra charge framed and made the following order :

“I direct the learned Magistrate to frame charges strictly in accordance with direction given by the court in para 141(2) and in accordance with Chapter XVII of the Code of Criminal Procedure after hearing the parties on the procedural aspect of it.”

7. Brother, Kapoor, J., had directed the charge of 120B read with Section 420 IPC need be framed against the petitioners which was obvious to me by reading his order that the substantive offence of cheating could only be committed by Bofors who made the alleged representation contained in letter dated 10.3.1986. Brother, Kapoor, J., in his judgment has recorded that the representation by Bofors must have been made with the knowledge of the Hinduja Brothers and, therefore, a prima facie case of conspiracy made against them.

8. For a lawful charge to be framed, particulars as to the time and place of the alleged offence and the person against whom or the thing in respect of which it was committed have to be mentioned in the charge so that reasonable/sufficient notice of the matter with which he is charged is provided to the accused. This is the requirement of Section 212 of the Code of Criminal Procedure. Moreover, illustration (b) to Section 213 of the Code of Criminal Procedure makes it clear that in charges of heating, apart from time and place, the charge must set out the manner in which cheating was committed. I had these provisions in mind when I had directed compliance of Chapter 17 of the Code of Criminal Procedure.

9. Obviously, for this purpose, reference to documents would be necessary to discover the material particulars. This was undertaken before the trial court. The documents which were necessary for this purpose were two documents forming part of Volume 22, in respect of which documents, Kapoor, J., did not rule out their admissibility or proof because he did not find it necessary to rely on them for the order which he was making. Kapoor, J., considered the charge of cheating in para 124 of his judgment. He first found that it is Bofors who made a misrepresentation. Then in paragraph 125 of his judgment, he held that obviously to say that the Hinduja Brothers were not aware about the aforesaid representation given by Bofors, is beyond apprehension a the Hinduja Brothers had been working as agents of M/s A.B. Bofors since 1979. I am informed that up to April, 1985, having agents was legitimate as the Government itself used to pay them commissions. But after May, 1985, it would be difficult at this stage to accept want of knowledge. Reference to the year 1979 in paragraph 125 of the judgment of brother Kapoor, J., is based on the documents in Volume 22. For framing any charge and even for the limited purpose of gathering the particulars to be included in the charge, reference to the documents in Volume 22 is essential.

10. In the trial court it was discovered that these documents were photo copies of some originals which no one has seen. The aforesaid documents were supplied to the CBI by the Editor of the newspaper ‘Hindu’. In his statement under Section 161 of the Code of Criminal Procedure he says that he got them from some source which he is not willing to disclose. The Editor of Hindu is not a person who can testify that the documents given by him are true copies of some original documents.

11. It was contended on behalf of the Hinduja Brothers before the learned Magistrate that it was impossible for the Magistrate either to frame a charge or even to incorporate material particulars in the said charge, therefore, requested the Magistrate to make a reference to the High Court under Section 395 of the Code of Criminal Procedure. For reasons, which may or may not be correct, the learned Magistrate declined to make the reference. I do not propose to go into these reasons. It is in these circumstances that petitions by the Hinduja Brothers for recall of my order have been filed in this court which, as already noted above, have been referred to me specially by order of Hon’ble the Chief Justice for final disposal.

12. It was argued that the petitioners have suffered in business, reputation and property over the last twenty years. Counsel for the petitioners submitted that the charge levelled against them in the FIR as well as in the charge-sheet were serious charges of corruption, bribery and conspiracy with no less a person than the Prime Minister of India. This has gravely damaged their reputation throughout the commercial world. They have suffered a setback costing them hundreds of crores. They have had to appear before the High Court, the Supreme Court, the Special Judge’s court and the Magistrate’s court. Fortunately, they have been vindicated and charges of corruption have been quashed by the High Court. All this could have and should have been avoided had the CBI pursued a fair investigation and sought to prosecute where a crime was committed instead of launching a persecution based on a political agenda.

13. Counsel for Hinduja Brothers further submitted that even if it is assumed for the sake of argument that the Hinduja Brothers were aware of the representation made by Bofors in their letter dated 10.3.1986, they would have no reason to stop it because it was not false to their knowledge. Even Kapoor, J., has not so found. The prosecution itself has maintained all along that the Hinduja Brothers have played no part in the securing of the contract. They did not at any time represent Bofors in the negotiations with the Government of India. They were thus, in law, nor in fact agents. All the available evidence only points to one fact that they were consultants in respect of the counter trade obligations of Bofors, which obligations are created by the contract of 24.3.1986 itself. It was submitted, how could this be construed as having conspired to cheat by making a misrepresentation? Bofors had their agent named, Win Chadha. He was openly working as agent up to 3.5.1985. There is no evidence that after Mr. Bhatnagar expressed his disapproval with the Government of India, that Win Chadha continued to act in that capacity. In fact, there is evidence that after that it is Bofors’ Managing Director, Martin Ardbo, who stayed in India until the contract was finalised in March, 1986. It was submitted that charge under Section 420 IPC, even if justified against the Bofors, cannot justify a conspiracy against the Hinduja Brothers.

14. It was argued that conspiracy by its very definition involves the two conspirators agreeing to commit an offence. Mere knowledge by one conspirator that the other would commit an offence is not enough, which proposition cannot be denied. Scores of authorities can be cited to support this contention. One such being State of Maharashtra v. Som Nath Thapa, 1996 (4) SCC 659. The relevant portion reads as under :

”The thrust of Shri Ram Jethmalani’s argument is that to find a person guilty of conspiracy, there has to be knowledge of either commission of any illegal act by a co-conspirator or taking recourse to illegal means by the co-conspirator along with the intent to further the illegal act or facilitate the illegal means. Though at one stage the learned Additional Solicitor General sought to contend that knowledge by itself would be enough, he, on deeper thought, accepted that this would not be.”

15. It was submitted that Kapoor, J., has found only knowledge but neither an intent nor any act of assistance or facilitation by the Hinduja Brothers, from which intention can be inferred to sustain a charge, could be gathered. The Hinduja Brothers have personally not made any representation, true or false, to the Government of India or the Negotiating Committee. They do not answer the description of Indian agents ‘specially employed’ for the Bofors contract. Prosecution itself alleged that they never took any part in the award of the contract. Counsel for the petitioners submitted that the charge of conspiracy cannot, even on the finding of brother Kapoor, J, be framed.

16. I must at once record that these arguments in the earlier two paragraphs are very attractive and forcefully advanced and might even carry conviction but I have to politely remind the learned senior counsel for the petitioners that these arguments can only be addressed to the Hon’ble Supreme Court of India and not before me. As a Judge of coordinate jurisdiction I cannot possibly come to the conclusion that brother, Kapoor, J, should not have directed this charge to be framed. In fact it is on his assumption that I acted when I earlier ordered that the Magistrate cannot frame any charge other than the one ordered by Kapoor, J.

See also  498A Quash on Jurisdiction by Lucknow Bench

17. In the present petitions, I am faced with a totally different situation which is somewhat unusual and is almost the first of its kind which I am dealing with in my judicial experience. This situation was neither presented to brother, Kapoor, J., nor to me when I dealt with the earlier applications. The situation has arisen out of the statement made by the prosecution in the trial court which was recorded by the learned Magistrate vide his order declining reference to the following effect :

”That the relevant and material documents are not available in original and no copies duly authenticated in accordance with the Indian Evidence Act are available.”

18. 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.

19. The learned Additional Solicitor General, Mr. Datta, appearing on behalf of the CBI has put down his submissions in the form of an affidavit of Shri Keshav Mishra, Additional Superintendent of Police, CBI, SPE, Economic Offences Unit. The submissions in the affidavit may be summarised as follows :

(i) That the photo copies which form Volume-22 of the record have been received in India in execution of Letters Rogatory issued by the Special Judge.

(ii) That when the framing of the charges was being considered by the Special Judge it was not argued that these documents in Volume-22 are the documents supplied by ‘The Hindu’ without indicating from where they were obtained and the CBI has managed to obtain some kind of authentication by the Ministry of Justice in Sweden.

(iii) That this objection was not raised before Mr. Justice Kapoor and the only argument raised is dealt with by Hon’ble Mr. Justice Kapoor in paragraph 129 of his order dated 4.2.2004

(iv) That when objection was raised before the learned Chief Metropolitan Magistrate that the original documents were not available, the following order was passed on 25.11.2004 by the learned Magistrate :-

”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.K. Kapoor only at the trial stage when CBI may cause to produce the originals also albeit copies are there on record but objection of defense is that the same are not authenticated as required by law.

(v) That this court has no jurisdiction to grant the relief which is now prayed for by the Hinduja Brothers namely recall of the earlier orders dated 4.2.2004 passed by Hon’ble Mr. Justice Kapoor and the order dated 20.5.2004 passed by Hon’ble Mr. Justice Sodhi.

Reliance has been placed in support of this argument on the following authorities :

(i) Rajinder Prasad v. Bashir and Ors. (2001) 8 SCC 522.

(ii) Krishnaveni, (1997) 4 SCC 241 : 1997 SCC (Crl.) 544.

(iii) Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr. (1990) 2 SCC 437.

(iv) Sooraj Devi v. Pyare Lal (1981) 1 SCC 500 : 1981 SCC (Crl.) 188.

(iv) Rajan Kumar Manchanda v. State of Karnataka, 1990 (Supp.) SCC 132.

(v) Rajathi v. C. Ganesan, (1999) 6 SCC 326.

(vi)In paragraph 12 of their affidavit it is alleged that when the newspaper ‘The Hindu’ published some documents in June 1988 these documents, were analysed and photographed and given to the Swedish Prosecutor with a request to confirm their authenticity. Mr. Lars Ringberg, Chief District Prosecutor, had told the CBI that he would compare those documents with the original and let them know. Subsequently he informed them through Interpol that he had checked the documents and they were the same as the documents in their files. The relevant correspondence and the documents are D-172 Vol-13, D-201 to D-203, Vol-16 and statement of PW-46. All this was done before the FIR was lodged in the case in the year 1990.

(vii) The CBI had collected many documents from N. Ram (PW-43), the Editor of ‘The Hindu’.

(viii) In paragraph 14 of the affidavit it is stated that Letter Rogatory was sent to Sweden in the year 1990. The same was not executed by the Swedish Authorities. A second Letter Rogatory was sent to Sweden in 1998 and it is claimed that it is in execute on of this that 652 documents in Vol-22 were forwarded along with communication, D-249 dated 16.8.2001.

(ix) In paragraph 15 in respect of these Swedish documents, Mr. Justice Kapoor has directed the trial court to consider the admissibility of the documents at the appropriate stage and the appropriate stage is only after charge is framed and the evidence comes to be recorded.

(x) The CBI relied upon a joint statement dated 22.2.2005 from Mr. Sten Lindstrom and Mr. Thomas Lindstrand currently in the Prosecutor’s office in Sweden which reads as under :-

”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.”

20. I now proceed to deal with the arguments put forth on behalf of the prosecution. The first point to consider is whether this court is competent to grant relief which is prayed for.

21. The Petitioners in support of their prayer have relied strongly on the judgment of the Supreme Court in A.R. Antuley v. R.S. Nayak and Anr. A.I.R. 1988 S.C. Page 1531. The judgment does lend considerable support to the Petitioners’ abstract proposition that the Court can act in the interests of justice unless its jurisdiction to do so is taken away by some express or implied statutory provision.

22. The majority judgment delivered in that case by His Lordship Mr. Justice Sabyasachi Mukherjee recalled the directions for a retrial earlier issued by the Constitution Bench of five judges. In paragraph 49 the learned Judges said : ”In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal”. It is true that the earlier directions which were recalled had overlooked some constitutional limitations and the resulting directions were violation of Articles 14 and 21 of the Constitution. But the Court in paragraph 52 had cited with approval the following proposition.

”An order which this Court could make in order to complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.

23. In paragraph 63 of the Judgment the learned Judge held that the court has power to review either under Section 137 or suo moto the directions given by the Court itself.

24. In paragraph 78 His Lordship approved the Privy Council decision laying down that ”an irregular order of a Court can be set aside by the Court that made it on application being made to that court ex debito justitiae”.

25. His Lordship Mr. Justice Ranganath Misra in a separate but concurring judgment in paragraph 100 approved of the following proposition :

”One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression act of the court is used, it does not mean merely the act of the primary court, of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case”.

26. It is true that Section 362 of the Criminal Procedure Code provides that no Court when it has signed its judgment or order finally disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. But the restriction imposed by this Section must be understood in the light of the Antuley’s judgment. In that case the Hon’ble Supreme Court recalled an order made by a Constitution Bench of that Court. This puts the Section in proper perspective. A mere procedural restriction cannot annul the power and the duty of the Court to prevent a miscarriage of justice.

27. A Division Bench of the Bombay High Court in Bombay Cycle and Motor Agency Ltd. v. Bhagwanprasad Ramragubir Pandey (1974) 76 Bom. Law Reporter 612 : (1975 Criminal Law Journal 820) clearly held that under Section 561A of the Criminal Procedure Code (present Section 482) the High court has inherent power to make an order that an Appeal may be reheard in a proper case where a party, who is entitled to be heard has not been heard without there being any fault on his part or on the part of his counsel.

28. Earlier the same High Court in State of Bombay v. Geoffrey Manners and Co., (1951) 53 Bom LR 117 1951-52 Cr L J 441) held that the High Court had inherent power to review or alter its judgment, where there is an error apparent on the face of the record or an obvious mistake about the facts which, if not corrected, would lead to miscarriage of justice. This view is also affirmed by a Full Bench of the Rajasthan High Court in Habu v. State of Rajasthan, AIR 1987 (Rajasthan) 83.

29. In my opinion in view of the 1988 Antuley’s judgment of a larger bench, earlier judgments like Sooraj Devi v. Pyare Lal and Anr. 1981 (1) SCC 500: AIR 1981 SC 736 stand modified. The other judgments cited by the Additional Solicitor General mentioned in paragraph 26 above are not relevant to the present controversy.

30. Now the next and still more important question is of the new situation, I am dealing with, which was not present to the mind of Mr. Justice Kapoor or to me when the earlier orders were made by this Court.

31. The prosecution themselves have now placed before me by way of an affidavit of Shri Mishra, as indeed before the Learned Magistrate, the joint statement dated 22.2.2005 of the two officers from the Prosecutor’s office in Sweden, which is reproduced below:

”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”.

Careful analysis of this statement shows that the Prosecutor’s office had in its possession Photostat copies and that the Prosecutor’s office sent them to the Ministry of Justice, Sweden. The photo copies which now constitute Vol-XXII did not therefore, emanate form the Ministry of Justice but from the Prosecutor’s office which sent them to the Ministry of Justice. Further analysis of the statement shows that the Public Prosecutor’s office sent these documents to the Ministry of Justice, Sweden, for on card transmission to India. In other words, it is the photo copies provided by the Prosecutor’s office that have reached India but the only change that has taken place during the course of transmission is that an initial and seal of the Ministry of Justice has been put thereon but no date. Now under the Evidence Act I cannot take judicial notice either of the seal or of the initial. These too have to be proved by evidence aliunde. Moreover what becomes crystal clear is that the Ministry of justice has not issued any certified copy of documents in their possession. There is no such certificate appended to the photo copies nor is there anything to show that the authority which has put its seal and initials had the originals in its possession and made the photo copies there from.

See also  Whether accused can be given benefit of error in framing of charge?

32. Another glaring aspect in the above joint statement is the assertion that the photo copies have been duly initialed and stamped by `him’. It is difficult to understand what ”him” means? It can neither refer to the Ministry of Justice nor any of the two officers whose statement it purports to be. To make a copy a certified copy it must comply with the provisions of Section 76 of the Indian Evidence Act. This Section requires that a certified copy can only be issued by a public officer who has the custody of the public document and it must contain a certificate written at the foot of such copy that it is the true copy of the original and this certificate must be titled and shall be sealed. I cannot accept the argument of the learned Solicitor General that certified copy issued in Sweden need not comply with Section 76 of the Indian Evidence Act. It is well known that the law of the Forum settles the rules of the evidence applicable to pending matters in its Courts. I am quoting a passage fro Cheshire and North’s Private International Law, Twelfth edition at pages 81-82:-

”Every system of law has its own principles for deciding the way in which the truth of facts, acts and documents shall be ascertained, and it is obvious that whether the question at issue is domestic or foreign in original those principles must usually apply. If another system of evidence were admissible it would be equally reasonable to permit another mode of trial. Whether a witness is competent or not (said Lord Brougham), whether a certain matter requires to be proved by writing or not, whether certain evidence proves a certain fact or not, that is to be determined by the law of the country where the question arises.

Leroux v. Brown is an outstanding example of the rule that the law of the forum determines whether written evidence is required.”

33. The disputed photo copies do not qualify as certified copies for the following reasons :-

(a) That the Ministry of Justice does not claim to have original in its possession;

(b) The officer who has initialed them neither had nor even claims the custody of the originals.

(c) There is no certificate written at the foot of the copy that it is true copy of any other document.

(d) There is no date and there is no name and official title of the officer;

(e) There is, however, a seal of the Ministry of Justice of which I cannot take judicial notice;

34. That is why one has to travel to Section 78 clause (6) of the Indian Evidence Act which is referred to by Mr. Justice Kapoor himself in paragraph 58 of the judgment at page 56. It appears that the learned Judge overlooked the definition of the certified copy in Sections 76and Section 78 of the Indian Evidence Act though brought to his notice.

35. In paragraph 129 of the judgment brother Kapoor only held that the Trial Court will decide the admissibility of the documents at the appropriate stage. He did not indicate what that appropriate stage is. I cannot assume that Kapoor, J, did not intend to follow the judgment of the Supreme Court in the Hawala case titled, Central Bureau of Investigation v. V.C. Shukla and Ors., { 1998 (3) SCC 410 para 15 page 424} where the view of the Delhi High Court 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 ensuring trial. I do not believe that Brother Kapoor, J, wanted to take away the duty and the power of the Court to determine the future admissibility and possibility of proof of documents before framing charges. If he intended anything else it would be an error apparent on the face of the record justifying recall and rehearing.

36. It is important to mention that Section 78 clause (6) of the Indian Evidence Act requires not only that the foreign document should be a certified copy issued by the legal keeper thereof but must be accompanied by a certificate under the seal of a not vary public or an Indian Consul or diplomatic Agent that the copy is duly certified by the officer having the legal custody of the original. Both these conditions are not and can not be satisfied.

37. Before I part with the joint statement I must mention that the original documents have been returned to the concerned parties in Sweden. Obviously this was done when the Public Prosecutor closed his investigation as far back as the year 1988. It is difficult to understand the meaning of the expression `in token of authentication’ used by the joint statement.

38. Now this joint statement was neither available to Kapoor, J, nor to me at the time of the earlier orders. This is a totally new piece of evidence showing not only that the original documents cannot be procured but also that the present photo copies do not constitute certified copies or any kind of legitimate secondary evidence. Faced with this situation, I had by order dated 13.5.2005 required to be informed if the defects could be removed. Learned Additional Solicitor General sought time to seek instructions. After two weeks, when the matter came up for hearing, Mr. Dutta 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 Honourable 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.” Now, if the CBI is incapable of producing relevant material, the case has no legs to stand.

39. Brother Kapoor,J, in his judgment has referred to the nine payments received by Mcintyre 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 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.

44. I must now deal with the last argument of the learned Additional Solicitor General based on Section 166A of the Code of Criminal Procedure. Section 166A reads as under :-

”166A. Letter of request to competent authority for investigation in a country or place outside India – (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the Investigating Officer, that evidence may be available in a country or place outside India, any Criminal Court may issue letter of request to a court or an authority in that country or place competent to peal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce an document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the court issuing such letter.

(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.

(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.”

45. The submission of the prosecution is that all the papers constituting Vol-XXII have been received from Sweden in execution of the Letters Rogatory of 1998 and therefore, under sub-section (3) they will be deemed to be evidence collected during the course of investigation under this Chapter.

46. The fallacy of the argument is plain enough. The word `evidence’s is by itself much wider than evidence as defined in Section 3 of the Evidence Act. Unless a document is one of which either judicial notice can be taken or to which a statutory presumption of veracity and authenticity is attached, a document which is not a public document has to be proved in accordance with the methods indicated in the Evidence Act itself. I cannot do better than cite a judgment of Justice S.P. Barucha of the Bombay High Court, as he then was, and reported in Om Prakash Berlia and anr. v. Union of India and Ors., AIR 1983 Bombay page 1. This judgment has neither been modified nor overruled at any time. It lays down the following propositions :-

”(a) the contents of document may be proved by the evidence of a person who saw it being executed or was himself the executant,

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(b) the contents of a document is different from the truth of what the document states:

(c) the truth of its contents can be proved by one who has personal knowledge of the matter recorded. See AIR 1971 S.C. 1949; AIR 1954 Bombay 305 and AIR 1968 Bombay 112.

(d) if the document is in the handwriting of some one, the handwriting itself must be proved under Section 67 of the Evidence Act.

(e) A public document can be proved by a certified copy.

(f) In such a case production of the original or accounting for non-production of the original is not essential but all other requirements must be complied with.

47. Accepting the above propositions as correct, I would only like to point out that Kapoor,J, in paragraph 125 of his judgment stated that Hindujas have been working as Agents of Bofors since 1979. He was obviously referring to the document D-294 in Vol.XXII and annexed to the present Affidavit of the prosecution. The Executant of this document is not examined by the Police or by the Swedish Judge nor is there any evidence to prove the truth of its contents. This applies to all documents in Vol.XXII

48. Evidence collected during the investigation must be capable of being converted into evidence as defined in the Evidence Act. No material exists on the record which will bring about this result. The word ‘evidence’ in Section 166 is used in the general sense of 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.

49. Section 166 is available only where some documents are collected from abroad during the course of the pending investigation. The investigation was over when the second charge-sheet was filed on 90.10.2000. These documents were received sometime after the 16.8.2001. This is clear from the letter, Exhibit D-249 at page 344 of Vol XXI and also from the affidavit of Shri Mishra of the CBI.

50. I will revert to this letter after dealing with three more letters the first of which is dated 6.6.2001 addressed to Mr. Tomas Lindstrand, Chief District Prosecutor, Stockholm by Mr. O.P. Galhotra of CBI, New Delhi. This letter reads as follows :

”I heartily thank you for the promptitude with which you have scrutinized the documents and forwarded them to the Prosecutor General for a decision.” It is clear from this letter that some documents which were sent to Sweden by the CBI were promptly scrutinized by the Chief District Prosecutor and the Prosecutor General was to decide on their onward transmission. These documents had no authentication of the Swedish authorities on that date.

51. The second letter is dated 27.6.2001 from the Ministry of Justice Stockholm, Sweden, to the Embassy of India. This letter reads as follows :-

”Request for Legal Assistance.

With reference to previous communication concerning a request for legal assistance regarding the ”Bofors case”, please find enclosed documentation from the Local Prosecution Authority of Stockholm. When additional documentation arrives from the prosecute on authority, it will be forwarded to the Embassy. The Prosecutor General’s Office has pointed out that the documents submitted is covered by articles in the Swedish Official Secrets Act.” This refers to a request for legal assistance by the Embassy of India. No execution of any Letters Rogatory of 1998 was taking place at that time.

52. The third letter is dated 6.7.2001 from Embassy of India to the Ministry of External Affairs in New Delhi. This document reads as under :-

”Please find enclosed a set of documents related to Bofors case received from the Local Prosecution Authority of Stockholm through the Swedish Ministry of Justice in response to a request from Shri O.P. Galhotra, Dy. Inspector General, CBI, SIG, New Delhi.”

53. These three documents make it clear that the whole of Volume-XXII which was received in India emanated from the Prosecution Authority of Stockholm through the Sweden Ministry of Justice in response to a request from Shri Galhotra of the CBI. This letter makes no sense of the claim that these documents were being dispatched in execution of Letters Rogatory issued by any Indian court. They are expressly sent in response to a request from the CBI contained in Galhotra’s enclosed letter of 6.6.2001. This is the same request for legal assistance as is referred to in the letter of 16.8.2000 mentioned above.

54.I am, therefore, not prepared to believe that these documents have been received in pursuance of the Letter Rogatory of 1998. The statement to that effect is clearly false and is an afterthought. The Letter Rogatory can only be issued to a judicial authority in Sweden and none seems to be involved in the dispatch of Volume-XXII.

55. In paragraph 129 of his judgment, Kapoor, J., stated at the stage of framing of charge, the documents which have been provided by the Swiss Authorities and Banks in response to the Letter Rogatory, have to be presumed to be worthy of reliance for the purpose of framing of charges.” Volume-XXII is not covered by this statement. It is neither supplied by the Swiss Authorities nor Banks. Nor are they in response to a Letter Rogatory. A deliberate misconception was created by the prosecution at every stage about the original of Volume XXII. This by itself justifies a recall of the previous orders.

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(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 direction 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 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.

59. In the case of the Bofors Company, it was submitted, they challenged the order framing charge under Sections 464 and 465 IPC along with other charges under Section 120B IPC read with Section 420 IPC, Section 5 read with Section 5 of Prevention of Corruption Act and Section 420 and Section 161 IPC read with Section 165A IPC by a petition under Section 482of the Code of Criminal Procedure which was disposed of by a common judgment dated 4.2.2004 by Kapoor, J, quashing several charges against the Bofors company while upholding charge under Section 465 IPC framed by the learned Special Judge on the assumption that the originals of the purported forged documents would be made available and produced as and when called for by the court during trial.

60. From the record it appears that an application dated 28.2.2004, moved by the Bofors Company for production of the original documents for inspection by its Advocate, was disposed of by the learned Magistrate, after hearing the Public Prosecutor for the CBI, by passing the following order :

”Learned CBI Prosecutor has no objection if the original documents sought to be inspected by the defense counsel is allowed to be inspected in presence of some CBI official. The learned Prosecutor has also informed that the originals are with the Ahlmed.

With these observations, the application stands disposed off. Aloke Sengupta or any advocate authorised by him can inspect the original documents in presence of CBI official on 8.3.2004”

61. The CBI failed to produce the original documents. The Bofors Company thereafter on 9.3.2004 moved another application for direction that the prosecution must produce the original documents for inspection to avoid any further delay in the trial. Another similar application was filed on 25.3.2004 During pendency of this application, the learned Magistrate on 26.3.2004 proceeded to frame charge against the Bofors Company for offence punishable under Section 465 IPC since the learned Magistrate was bund to do so by the directions in order dated 4.2.2004 of Kapoor,J. The Bofors Company moved yet another application on 7.6.2004 for production of the original documents for inspection and for preparation of its defense before the trial began, but no original documents were produced. However, on 14.10.2004, the learned Additional Solicitor General appearing on behalf of the prosecution, made a statement before the learned Magistrate to the effect ”that the original documents sought to be perused by the Bofors Company are not available with the CBI.” This statement was incorporated in the order dated 14.10.2004 of the learned Magistrate.

62. Faced with the aforesaid situation, the learned Magistrate directed the prosecution agency to ascertain whether the original documents were/are lying with the Swedish Authorities which were sought to be kept secured by an earlier order. The learned Additional Solicitor General submitted a fax communication dated 24.11.2004 from the Ministry of Justice, Sweden, which reads as under :

”I hereby certify that all original documents received from the prosecutor’s office were forwarded to the Embassy of India in Stockholm. These documents were subsequently stamped and signed at the request of Indian Authorities.”

63. An additional list of witnesses, particularly PW-94, PW-95, PW-96 and PW-97 with the note – ”Statements of aforesaid witnesses have not been recorded as they are formal witnesses for handing over of documents etc.” was filed.

64. On the basis of the aforementioned submissions, counsel submitted that it has been established that the CBI are not in a position to produce the original documents in question in court nor are they in a position to inform the whereabouts of the originals in which case forgery cannot be proved nor a charge under Section 465 IPC be sustained.

65. Counsel seeks to rely upon the arguments made in the Hinduja Brothers’ case as to the veracity of proceedings in the trial in the absence of certified copies or originals of the documents alleged to have been forged. The learned Additional Solicitor General has chosen not to address arguments in the case advanced by the Bofors Company since, according to him, question of law and admissibility of xerox copies is common and would govern both the cases.The question of law having been discussed in the preceding paragraphs of this judgment, the conclusion is but obvious.

66. Before parting, I must express my disapproval at the investigation that went on for 14 years and I was given to understand that it cost the Exchequer nearly rupees 250 crores. During the investigation a huge bubble was created with the aid of the media which, however, when tested by court, burst leaving behind a disastrous trail of suffering. The accused suffered emotionally. Careers – both political and professional – were ruined besides causing huge economic loss. Many an accused lived and die with a stigma. It is hoped that this elite Investigating Agency will be more responsible in future.

67. 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 and 170/2005 in Crl. Rev. 271/2004, Crl. M.A. 171/2005 and 172/2005 in Crl. Rev. 272/2004, Crl. M.A. 173/2005 and 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 26.3.2004 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.

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