Case: Union of India (UOI) and Ors.  Vs. W.N. Chadha

the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment. 114. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product. 115. Be that as it may, after having gone through the orders of the Special Court dated 5th February 1990 and 21st August 1990 and all the connected records placed before the Court, the Special Judges cannot be found with to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that the FIR constitutes a cognizable offence or offences and that a competent officer under the CrPC has made a request for issuance of letter rogatory. 116. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non-application of mind by the Special Judge. 117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed: Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law. 118. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus: This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petition cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the CrPC as has been done in this case.... That is why, even assuming that the provisions of Section 91 Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters; therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds.... The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]31. The above observation shows that the High Court did not favour the contention that the report of the JPC constitutes a legal bar for the registration of the FIR and continuation of the investigation.38. The facts and the sequence of events of this case which we have chronologically narrated more in a summary way than in describing the galaxy of facts in detail in order to avoid prolixity clearly show that while Shri Harinder Singh Chaudhary was seaking quashing of the letter rogatory, FIR and all other proceedings arising thereon as a public interest litigant on behalf of the accused named and unnamed inclusive of this respondent in the FIR, the respondent (W.N. Chadha) was inexplicably silent but only after Harinder Singh Chaudhary had miserably become unsuccessful in his attempt of thwarting the criminal proceedings even at the door step on the ground that he had no locus standi, the respondent (W.N. Chadha) has come out of his shell - that too - through his Paiorkar and challenged the criminal proceedings raising various questions which, of course , are available to him de hors the questions which have already-been decided and concluded by this Court during the first round of litigation. In fact, we ourselves in our earlier order dated 27th August 1991 have expressed the view that it is only for the aggrieved parties inclusive of this respondent to agitate and challenge the criminal proceedings at the appropriate time before the proper forum.50. The above conclusions clearly spell out that this Court did not share the view that the First Information Report does not disclose any offence but however the other questions which might be available for the accused persons to attack the First Information could be availed of.60. It is clear from the above meaning of the said expression that Letter Rogatory is a formal communication in writing sent by a Court in which action is pending to a foreign Court or Judge requesting the testimony of a witness residing within the jurisdiction of that foreign Court may be formally taken thereon under its direction and transmitted to the issuing Court making such request for use in a pending legal contest or action. This request entirely depends upon the comity of Courts towards each other, that is to say, on the friendly recognition accorded by the Court of one nation to the laws and usages of the Court of another nation.61. It appears from the records that the First Information Report was laid before the Special Court on 22nd January, 1990. On 23rd January, the request was made by the Director of CBI followed by another letter of request dated 26th January, 1990 to the concerned authorities in Switzerland for freezing/blocking certain bank accounts, relevant to this case. The Federal Department of Justice and Police, Switzerland moved the Judge of Geneva and the concerned Judge of Zurich who on being prima facie convinced of dual criminality and the need for investigation in Switzerland froze the relevant bank accounts in this regard on 26th January, 1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland. As per the intimation, the relevant accounts in the bank has been blocked upon 28th February, 1990. therefore, it had become necessary for freezing the accounts beyond 28th February, 1990 and to make a request for judicial assistance to Switzerland failing which the Swiss law obliges the withdrawal of the instructions to block the accounts. It is further disclosed from the records that the Federal Department of Justice and Police at Berne which corresponds to the Ministry of Law and Home of the Government of India have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20th February, 1989 subject to the condition of the receipt of letter rogatory from the competent judicial authority in India. This necessitated to send letter rogatory to Switzerland urgently for getting the necessary assistance for the investigation to be conducted in Switzerland lest very valuable and relevant evidence would remain uncollected and the cause of justice would suffer.Section 166-A which was introduced after the issue of letter rogatory on 5/7th February, 1990 confers jurisdiction on the Special Judge to issue such letters. The result is that there is no specific discussion with regard to the authority of the Court in issuing the first letter rogatory.67. In would be significant, in this connection, to refer to the remark of the High Court reading thus:We may point out here that in reply to written submissions filed by the petitioner, CBI had filed additional written submissions and had stated therein that besides three contentions mentioned in the preceding paragraphs, the learned Counsel for the petitioner, during the course of oral arguments, had not pressed the contention that the Special Judge had no jurisdiction to issue the first letter rogatory on 5/7th-2-1990.68. There is no challenge before us to the above additional written submission of the CBI.69. The High Court coming to the legal aspect has observed thus:Similarly once the power has been conferred on the criminal court to issue the letter rogatory, it follows that the court will have to apply its mind and give an opportunity of hearing to the person whose property or rights are sought to be affected by letter rogatory.70. After observing so, the High Court proceeded only on the ground that the Special Judge has not complied with the principle of audi alteram partem and also has not applied his mind to the facts and circumstances of the case before issuing letters rogatory, as aforementioned.71. therefore, we are not called upon to go into the question of the jurisdiction of the Special Judge in issuing the letter rogatory but have to deal only with the other two grounds on the basis of which the High Court quashed the letters rogatory.72. It would not be out of place to mention here that as rightly pointed out by the Additional Solicitor General that the amended letter rogatory issued on 22nd August, 1990 has got legal sanction under Section 166-A of the Criminal Procedure Code (for short Code) notwithstanding the fact that this provision was not in the statute on 5th February, 1990.74. No doubt it is true that a seven-Judges Bench of this Court in Smt. Maneka Gandhi has opened a new vista in the area of personal liberty as enshrined under Article 21 of the Constitution and emphasised the audi alteram partem rule which emphasis is of affording a fair opportunity of being heard on prior notice to a party to whose prejudice an order is intended to be passed by the Government or its officials. Further, it is stated by the High Court that all the safeguards in favour of an accused contained in the Criminal Procedure Code have now become a part of the constitutional provisions and they are governed by Articles 14, 19, 20, 21 and 22 and that the procedure contemplated under Article 21 requires that it should not be arbitrary, fanciful, oppressive or discriminatory. therefore, the failure on the part of the Special Judge in issuing notice to the respondent and affording him a reasonable opportunity of being heard vitiates the letters rogatory.76. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact by preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.77. In fact the Special Judge in Delhi is not possessed with any power or authority to deprive the liberty of the respondent residing out of the jurisdiction of Indian Courts and having his property in question in a foreign country. Only in case where a public officer has got such a power, the question of fair play in action will be attracted.80. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.87. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.88. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise.94. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.95. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the CrPC - such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the CrPC.96. Incidentally, it may be stated that there is no question of attachment of money of the respondent or any of the accused, named or unnamed, standing to the credit of the account holders in Swiss banks linked with Bofors mystery but it was only freezing of the accounts as per the request made by the Director, CBI by Ms letter dated 23rd January, 1990 and followed by another letter dated 26th January, 1990 and thereafter pursuant to the request through letters rogatory for judicial assistance in Switzerland, But for the request made by the letter rogatory, the Swiss law obliges withdrawal of all the instructions to block the account. therefore, we are of the view that the detailed discussion of the High Court with reference to the Criminal Law Amendment Ordinance of 1944 though is not warranted in this regard.97. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.98. Reverting to the facts, it is not the case of the respondent that he is having any account in Swiss banks connected with Bofors mystery and that that account is frozen to his prejudice. When the respondent himself has not come forward with any specific case stating as to what was the quantum of the amount standing to his credit in Swiss banks and in what manner he is now aggrieved by the letter rogatory and in what way he is deprived of his properties, it is incomprehensible as to how the High Court has come to the conclusion that the respondent is deprived of his property. Similarly, any one of the other named or unnamed accused or any third party, not named in the FIR, has not come forward with a complaint of grievance on account of the freezing of the accounts.101. We are unable to see any force in the above submission of Shri Rajinder Singh because, firstly there is no request for production of the documents; secondly there is no prayer in the letter rogatory for production of the entire account books and; thirdly till date no objection is taken by the Swiss banks. It is pertinent to note that the High Court has not found fault with the validity of the letter rogatory on the ground of alleged production of bank accounts or the failure of any notice to the Swiss banks.103. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by CBI is only for process of judicial assistance from the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition.104. For the aforementioned discussion, we hold that the facts and circumstances of the case do not attract the audi alteram partem rule requiring a prior notice and an opportunity of being heard to the respondent and that the respondent has never been prejudiced and deprived of his right to property due to the alleged non-compliance of the principle of audi alteram partem.107. From the judgment, it is seen that certain documents which are said to have been claimed as secret and confidential documents by the ASG are taken into consideration for reaching to the conclusion that there was non-application of mind.113. During the argument before this Court, the Additional Solicitor General reaffirms that certain secret and confidential documents at the instance of the court - namely the letters of the CBI to the Federal Department of Justice and Police, Berne, Switzerland dated 23rd and 26th January, 1990, the order dated 3rd July, 1990 of the Cantonal Court, the note of compliance of the CBI, the letters of the Chief of Army Staff, the minutes of the meeting of the Negotiating Committee etc. etc. were handed over in a sealed cover with an oral request not to reveal the document to the other side or to refer them in the judgment since otherwise the Government would be claiming privilege on the said documents. In other words, oral privilege was claimed under Section 124 of the Evidence Act. The Additional Solicitor General continues to state that the High Court unfortunately despite the oral request made on behalf of the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment.114. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product.115. Be that as it may, after having gone through the orders of the Special Court dated 5th February 1990 and 21st August 1990 and all the connected records placed before the Court, the Special Judges cannot be found with to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that the FIR constitutes a cognizable offence or offences and that a competent officer under the CrPC has made a request for issuance of letter rogatory.116. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from non-application of mind by the Special Judge.117. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed:Now, assuming for a moment that the order of the learned magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency.... Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law.118. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus:This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petition cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Article 227 of the Constitution or under Section 397 or 482 of the CrPC as has been done in this case....That is why, even assuming that the provisions of Section 91 Cr.P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters; therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds.... The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner.The fact that original documents were made use of and relied upon by the High Court is strengthened by the following observation made in the impugned judgment itself:The urgency of acquisition of 155 mm gun is evident from the letter dated 29th November, 1985 written by the then Chief of Army Staff to the then Raksha Rajya Mantri (A), which we have perused from the original record.123. A scrutiny of the judgment demonstrably shows that the High Court has gone through some original records which in the very nature of them could not have been made available by the respondent. As indicated above, the Additional Solicitor General states that the original documents were produced by the Government in a sealed cover for the Courts perusal with an oral request not to reveal the documents to the other side and to make use of them in the judgment, besides orally claiming privilege. However, the High Court has not only referred to those documents but also very much relied upon them. In fact, the High Court has reproduced a relevant portion of the letter dated 29.11.1985 of the then Chief of Army Staff and also a portion of the minutes of the meeting of the Negotiating Committee recorded on the 4th March 1986. It was only on the basis of the above documents the High Court drew its final conclusion regarding the procedure followed from the very proposal of the contract till its finalisation.137. At the outset we are constrained to observe that we are terribly shocked on seeing that the High Court has gone out of its authority and overstepped its province by making use of certain original records and then on the basis of the said records proceeded to examine the entire procedure followed right from the proposal up to the finalisation of the contract between Bofors and Government of India and its genuineness and bona fide and ultimately affixed its seal of judicial approval holding that the contract is perfect and bona fide.138. It is to be noted that the High Court appears to have waded through the entire original records produced before it by the Government for its perusal and on the strength of those documents, the Court has raised the two questions, namely, whether the proper procedure in the execution of the contract was followed and whether the contract finalised is perfect and bona fide and answered both the questions in affirmative, that is in favour of the respondent and prejudicial to the appellants.139. The perusal of the impugned judgment clearly discloses that the learned Judges of the High Court have freely used those documents which are said to be secret and confidential and not only referred but also quoted certain portion of those documents in extenso as stated supra.In our view, the documents (the copies of which are produced before us claiming to be secret documents) from their very nature could have never been in possession of any third party much less with the respondent and in such a case, the High Court was not at all justified in making use of those documents for its findings especially in a case of this nature where there are serious and outrageous allegations. In these circumstances, one would be constrained to observe that the High Court has prejudged the issue and thereby laid down the foundation for its subsequent findings for quashing the entire proceedings. No doubt every court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind one way or the other.140. We feel that it is not necessary to go deep into the matter any further except saying that the High Court is not justified in affixing its seal of approval to the contract by holding it to be bona fide, on being executed following the proper procedure.141. For all the reasons stated above we without any hesitation quash those finding with regard to the nature of the contract and the procedure followed.145. One should not lose sight of the fact that the oral understanding has not been incorporated in the written agreement about which there is no dispute. What is stated at the bar is that the oral understanding has been confirmed by subsequent correspondence between the parties.. The High Court hasextensively quoted the opinion of the then learned Attorney General and very much relied on it for its observation, reading thus:After the Government of Indias policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence.146. Be that as it may, we feel that it is not necessary to go deep into the matter in the light of our earlier finding given in Criminal Appeal No. 304/91 etc. etc. the judgment of which is reported in 1991CriLJ838 under the caption Janata Dal v. H.S. Chowdhary wherein we have stated that we were unable to share the assertion of Mr. Justice M.K. Chawla holding that the FIR on the face of it does not disclose any offence. Further this Court has also expressed its feeling on the statement of Justice Chawla in the following terms:While so, it shocks our judicial conscience that Mr. Justice M.K. Chawla before whom no aggrieved or affected party had come challenging the FIR, has taken suo moto action and recorded such a categorical assertion that no offence thereby meaning much less a cognizable offence is made out in the FIR.147. In fact, the High Court in its impugned judgment itself has recorded its finding that they are also of the same view as that of this Court that it may not be correct that the FIR does not disclose any offence against anyone named or unnamed accused which definitely includes the respondent also. In the background of the finding of this Court and that of the High Court it is not necessary to go deep into the matter by referring to various documents such as report of the JPC, the opinion of the then learned Attorney General, report of the Comptroller and Auditor General of India etc. lest it may affect either of the parties if the investigation ends up with the trial of the case. Though we refrain from giving any positive finding with regard to the alleged payment of the bribe amount to the respondent, the allegations made in the FIR under Section 154 of the CrPC prima facie constitute the offence alleged therein. Hence we set aside the finding of the High Court that no offence is made out against the respondent under various provisions of the different Statutes.149. The above argument cannot be countenanced. As observed in Bhajan Lal, when the entire matter is only at a preliminary stage and when the investigation has yet to go a long way to gather the requisite evidence the Court cannot come to a conclusion one way or the other on the plea of mala fide at such a stage. Further in case the investigation discloses that the entire proceeding has been initiated only with mala fides, probably the prosecution itself may throw the case overboard. Answering a similar contention, Bhagwati, CJ in Sheonandan Paswan v. State of Bihar 1987CriLJ793 has observed as follows:It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.150. The said observations made in Bhajan Lal and Sheonandan Paswan in this regard apply with all force to the case on hand.151. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceeding to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.152. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, Whatever explanation for this may be, we disapprove the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records.151. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceeding to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.152. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, Whatever explanation for this may be, we disapprove the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records.154. Though initially, Mr. Rajinder Singh took a serious objection to the conduct of the CBI in pasting this piece of paper to the letter rogatory without the permission of the Court, when confronted by the subsequent approval of Shri V.S. Aggarwal, Special Judge he had no answer to sustain the remark of the High Court. We are now fully convinced that there was no tempering of judicial letter rogatory but only additional particulars were furnished for ready reference of the names of the account holders as contained in the letter dated 26th January, 1990. Even if it is to be held that the piece of paper should not have been pasted, leave apart the explanation offered since Shri V.S. Aggarwal has approved the letter rogatory with the pasted piece of paper on being satisfied the circumstances under which it was pasted, the CBI cannot be ostracised. It must be noted by pasting that slip Shri Madhavan has not added any additional information on his own. therefore, we expunge the remark of the High Court, as prayed for in the Cr.M.P. In view of this finding, we hold that the High Court was not correct in holding that this has amounted to tampering of judicial records.. The High Court hastaken into consideration two factors alongwith the conclusions arrived at by the JPC in its report for granting the relief to the respondent despite its finding that the allegations in the First Information Report discloses an offence against all the accused about which we will deal in the later part of this judgment.156. Of the two, first relates to the alleged failure on the part of the CBI to name any one of the public servants as an accused even after the 31 months from the registration of the case and the second relates to the impounding of the passport of the respondent.157. In dealing with the first question of the two, the High Court said:...even after the expiry of more than 31 months from the registration of the FIR, CBI has failed to name any public servant as an accused.158. The above reasoning of the High Court is neither legally nor factually sustainable. As rightly pointed out by the Additional Solicitor General whose submissions we have already summarised in the earlier part of this judgment, it is not due to any indolence or procrastination on the part of the investigation but it is due to the obstructions put on the track of investigation for scuttling the same by approaching the judiciary firstly by Shri H.S. Chowdhary as public interest litigant and secondly by the respondent through his pairokar. However, the CBI all through is maintaining stoic silence unmindful of all the scornful criticism and vilification levelled against it, and is relentlessly and tirelessly fighting all the litigations so that it can successfully proceed with the investigation and collect all the materials to espouse the cause of justice. To say that the prosecution has failed to name any one of the public servants as an accused even after 31 months from the registration of the case, is a very uncharitable criticism. A survey of the various proceedings of this litigation reveals that the investigating agency, namely the CBI was fettered at every stage and made to spare its energy more in Court proceedings than in proceeding with the investigation. Only if the investigation is freely allowed without any hindrance, the investigating agency can collect all the requisite particulars and bring the names of those public servants on record, the secrecy of which, it is said, is deeply buried in various places and under various Departments. Hence this reasoning is devoid of any merit.159. In the penultimate paragraph of the impugned judgment, the High Court has observed:...It may be noted here that pursuant to the registration of the FIR against the petitioner his passport has been impounded. Non-bailable warrants for his arrest were issued and the same have been quashed by a learned Single Judge of this Court and the matter is now pending before the Supreme Court. In these circumstances, it is a fit case where investigation cannot be allowed to continue against the petitioner.160. We are not able to see any logic in the above reasoning. When we asked the counsel for the respondent as to whether this material of the impounding of passport was placed before the High Court, he hesitatingly stated that the order of the High Court in Crl. Misc. (Main) No. 1318 of 1990 titled Washeshwar Nath Chadha v. State, has been reported in (1991) 1 DLr 394, and thereby requested the Court to infer that the High Court might have taken note of that reported judgment, though the judgment spells out nothing about the source of information in this regard. At the instance of this Court, a copy of the reported judgment in Crl. Misc. case has been placed before this Court by the respondent.161. Be that as it may, the respondent who was the petitioner in the above case filed a petition before the High Court under Section 482 Cr.P.C. read with Article 227 of the Constitution seeking certain reliefs, namely, to permit him to inspect the FIR which is the impugned FIR in this case, and to quash the non-bailable warrants issued against him relating to a case registered under the provisions of the Passport Act, 1967.162. We are surprised that the High Court has taken a serious view of the impounding of the passport as being a supportive reason for its finding of annulling the proceedings. In fact that proceeding under the Passport Act cannot have any bearing in this proceeding initiated for quashing the FIR even though the impounding of the passport is to secure the presence of the respondent for the investigation purposes in connection with the case on hand. However, in passing we would like to quote a sentence from the order of that case, whatever purpose it may serve. The sentence reads ...petitioner does not want the quashing of the FIR nor is he making a request to this Court to interfere in the investigation of the case.(emphasis supplied)163. It may be stated that the petitioner in that case is the respondent herein and the FIR referred to above is the impugned FIR in the present case.164. Now we shall pass on to a very important aspect of the case which renders the very conclusions of the High Court quashing the FIR as highly unsustainable.165. Coming to the close of the judgment, the High Court itself has expressed its view stating ...it may not be correct to say that the FIR on the face of it does not disclose any offence against any one, named or unnamed accusedwhich we have already extracted above. Having held so, the High Court thought that in exercise of its powers under Article 226, it could quash the FIR on its findings on the other issues. It surprises us as to how the High Court quashed the FIR after having positively found that the FIR discloses an offence/offences against named and unnamed accused which will include the respondent also. But in the next breath, it is held that no offence is made out.166. This Court, in its earlier proceedings, has rejected the contention that the FIR does not disclose any offence. This observation is binding on the High Court yet the High Court strangely by way of self-contradiction has held that no offence is made out against the petitioner and thereby stonewalled the CBI probe. This paradoxical finding perhaps by the High Court is sought to be justified by feebly relying on the fact that the investigating agency has failed to name any public servant as an accused, on the conclusions of the JPC and also on the circumstances of the impounding of the passport of the respondent. These aspects have been dealt by us and we have categorically held that these aspects do not in any way affect the contents of the validity of the FIR. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very FIR.167. We, therefore, are of the firm view that the self contradictory findings of the High Court itself gives a frontal attack to the impugned judgment, rendering it unsustainable both in law and fact. To put it ironically, the impugned judgment profusely bleeds due to its self inflicted injury.168. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the FIR discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous and untenable and attempting to sustain the other part as being well founded on sound reasonings.169. It cannot be said that the Report of the JPC has acquitted the respondent and others of all the charges levelled against them on appraisal of the entire evidence. On the other hand, the Report spells out that Bofors did not co-operate and the evidence relating to the recipients of the amount was not forthcoming.Though we are not inclined to make a detailed survey of the Report, it would suffice to refer to some of the conclusions of the JPC which would serve our purpose. For proper understanding, we shall reproduce hereunder the relevant portions of some of the conclusions, recorded, under Chapter IX of the Report of JPC.Conclusion (vi)...Despite persistent demands from the Government of India, Bofors declined to give details of these payments and the recipients thereof.Conclusion No. (vii)Bofors have expressed inability to furnish copies of their initial as well as the termination agreements with the tree companies to whom winding up costs were paid, on the plea of commercial secrecy. They have complained that such disclosure would be a breach of their confidentiality agreement with these companies.Conclusion No. (ix)On the ground of commercial confidentiality, Bofors have not furnished full details of the persons to whom winding up costs were paid. Nobody has come forward with any evidence in regard to the identity of recipients of payments made by Bofors.... It has not been possible for either our investigating agencies or any other sources to find any evidence regarding the identity of recipients. The Committee have, therefore, not been able to reach any conclusion in regard to the identity of recipients.Conclusion No. (xi)There is no evidence to show that any middleman was involved in the process of the acquisition of the Bofors gun. There is also no evidence to substantiate the allegations of commissions or bribes having been paid to anyone. therefore, the question of payments to any Indian or Indian company whether resident in India or not, does not arise, especially as no evidence to the contrary is forthcoming from any quarter.Conclusion No. (xii)Mere suspicion as regards existence of middleman and/or payments of commissions does not constitute sufficient ground for initiating action to terminate the contract with Bofors or to raise claims for the reimbursement to Government of payments made by Bofors to the three foreign companies.Conclusion No. (xiii)There is no evidence to establish that the Bofors payments totalling SEK 319.4 million involved a violation of any Indian Law.Conclusion No. (xiv)There is no evidence of any other payment having been made by Bofors for winning the Indian contract.170. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully cooperating with the enquiry furnishing the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney General of India.171. Now it is shown that the Swiss authorities are coming forward to give full co-operation and assistance in the collection of evidence at their end. therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact Shri Rajiv Gandhi, the then Prime Minister of India himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th April, 1987 which we have already extracted in our earlier part of this judgment. However, it may be recalled, in this connection also, his statement reading You show us evidence we do not want proof, we will bring the proof. This assurance was affirmed and reaffirmed on more than one occasion by the Minister for Defence during the course of the discussion in the Parliament. The JPC itself has felt some suspicion as regards the existence of middleman, but what the report says is that the mere suspicion does not constitute sufficient ground for initiating action.