JANATA DAL / HARINDERSINGH CHOWDHARY / JANATA DAL COMMUNIST PARTY OF INDIA / MARXIST INDIAN CONGRESS SOCIALIST Vs. H.S.CHOWDHARY / THE HONBLE HIGH COURT OF DELHI:UNION OF INDIA

JUDGEMENT

(1.) A brief resume of the facts which have given rise to the above appeals and writ petition would be necessary to appreciate the unsavoury controversies created by way of public interest litigations, though we have decided to give only our conclusions now and the detailed reasons later in order to avoid any delay in this matter for the reasons, namely, (1 in the application for direction filed by the union of India through CBI on 11/07/1991 it is submitted that "the swiss authorities would remove the blocking order on 31/08/1991 and the account holders would withdraw the large funds, running into millions of dollars (equivalent to crores of rupees) " and prayed that lhe judgment may he pronounced by the end of August 1991 lest miscarriageof justice would be caused, and (2 that the learned Additional Solicitor general, Mr Altaf Ahmad appearing on behalf of the Union of India and cbi on 23/08/1991 reaffirmed the above statement of the Union of india and requested that the CBI should be allowed to proceed with the investigation without any interruption or hindrance so that the investigation may be speeded up thereby meaning that the wheels of investigation already started moving on, should be permitted to be proceeded with unfettered and untrammelled so that the valuable evidence may be obtained from the Swiss Bank through their authorities without further loss of time, otherwise the accounts in the Swiss Bank now frozen may be defrozen.

(2.) The central Bureau of Investigation/delhi Police Establishment/anti-Corruption Unit-IV, New Delhi registered the first information report dated 22/01/1990 relating to Crime No. RC/ (A) /90/acu-IV under S. 120-B read with S. 161, 162, 163, 164 and 165-A of the Indian Penal Code read with S. 5 (2, 5 (1 (d) and 5 (2/5 (1 (c) of the Prevention of Corruption Act 1947 (herein referred to as P. C. Act) read with S. 409, 420, 468 and 471 of the Indian Penal Code against 14 accused of whom 3 are named, they being (1 Shri Martin Ardho, former President of M/s A. B. Bolors, sweden (accused 1; (2 Shri Chadha alias Win Chadha, S/o Shri Assa nand, President of M/s Anatlronic General Corporation/anatronic General Companies Ltd. , C/4, Main Market, Vasant Vihar, New Delhi (accused 3 and Shri G. P. Hinduja, New Zealand House, Hay Market, london SW-1 (accused 7. The rest of the 11 accused are stated in general as directors/employees/holders/beneficiaries of account code and public servants of the government of India. The core of the allegations is that these accused, named and unnamed, entered into a criminal conspiracy, obtained illegal gratification in the form of money from bofors, a Swedish company through the agent firms/companies/ persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding contracts to BOFORS for the supply of guns to the government of India and in the transaction also committed the offences of criminal breach of trust, cheating of Union of India, forgory and using of forged documents etc. It appears that the CBI has commenced its investigation during the course of which it has recorded statements of witnesses and took into their custody various documents and files relating to this Bofors deal.

(3.) While it is so, the CBI moved an application before the Special Judge, namely, Shri R. C. Jain slating inter alia that the investigation ofthe case is to be conducted not only in India, but also in Switzerland, sweden and other countries, that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and oral evidence relating to all aspects of the accounts in banks in Switzerland to which remittances were made by M/s A. B. Bofors from sweden, that in particular, the authorised signatories and the beneficiaries of the said accounts have to be traced by such investigation as they are, in fact, the ultimate beneficiaries of the payments made by M/s a. B. Bofors and that under the procedure followed by banks in Switzerland, an authorised signatory can operate an account for the benefit of certain other persons regarding whom the authorised signatory has to submit certain declarations to the concerned bank and, therefore, it is very essential for the investigation of this case that the documentary and oral evidence should be collected regarding this as well as the other aspects of the bank accounts in Switzerland. In the said application after referring to the exchange of letters dated 20/02/1989 between the government of India and Switzerland for mutual assistance agreeing that the authorities of both the countries shall provide to each other the widest measure for assistance in the investigation of criminal matters, it has been stated that the competent authority to ask for assistance in india and abroad is the court/tribunal/judge or magistrate exercising jurisdiction. The Director of the CBI sent a request dated 23/01/1990 and supplemented by another request dated 26/01/1990 to the concerned authorities in Switzerland for freezing/blocking certain bank accounts relevant to this case and the Federal Department of Justice and police, Switzerland moved Shri Parraudin, 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 26/01/1990 as intimated by the Federal Department of Justice and Police through the Embassy of india in Switzerland and that as per this information, the relevant accounts in the bank have been blocked up to 28/02/1990 and that request for judicial assistance from Switzerland in this matter, therefore, should be made by 28/02/1990 failing which the Swiss law obliges the withdrawal of instructions to block the accounts and that the Federal department of Justice and Police at Berne which corresponds to the ministries of Law and Home, 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 20/02/1989 only on receipt of a Letter Rogatory from the competent judicial authorities in India.