A bench headed by Chief Justice Dipak Misra how a private person could file an appeal in the Bofors case
The Supreme Court on Tuesday asked BJP leader Ajay Agrawal to explain his locus in filing an appeal in the politically-sensitive Rs 64 crore Bofors pay-offs case and asked how the matter could be entertained at the instance of a third party.
Mr Agrawal, who had contested the Lok Sabha elections in 2014 from Rai Bareli against then Congress president Sonia Gandhi, has filed an appeal in the top court against the 2005 verdict of the high court, quashing all charges against three Hinduja brothers, UK-based business magnates, and the Bofors company.
A bench headed by Chief Justice Dipak Misra on Tuesday said when the CBI has not filed any appeal in the top court challenging the May 31, 2005 Delhi High Court judgement, how could a private person file an appeal in the matter.
"When the prosecutor has remained silent, why should we go into it? The occurrence took place in 1986. 31 years have passed, nobody challenged it. You are a third party and you have to satisfy us on this issue," the bench, also comprising Justices AM Khanwilkar and DY Chandrachud, observed.
The top court also asked Additional Solicitor General (ASG) Maninder Singh, who appeared for the CBI, "you have not filed an appeal in the last 12-13 years. What do you propose to do now?"
The ASG replied that though the CBI did not file the appeal, a special leave petition was filed by private parties who were involved in the case, which was withdrawn later.
He said after the High Court quashed all charges in the case, that there were deliberations whether to challenge the decision of the HC or not.
However, after Mr Agrawal filed the appeal, CBI has been appearing in the matter as one of the respondents, he said.
In October last year, the CBI had indicated that it was mulling appealing against the High Court decision quashing charges against the Europe-based industrialists, the Hinduja brothers after the claims by American private detective Michael Hershman, who has alleged that the then Rajiv Gandhi-led Congress government had sabotaged his investigation.
Mr Agrawal had questioned the move of the CBI saying this would delay the matter.
The top court posted the matter for hearing on February 2 saying, "we expect the petitioner (Agrawal) to argue the matter on the next date of hearing and argue the parameters on grant of leave".
In law, locus standi means the right to bring an action, to be heard in court or to address it on a matter before it.
At the outset, senior advocate Kapil Sibal, who was present in the courtroom, objected to the plea and said this was a 31-year-old case. He also questioned the locus of the petitioner and said the appeal was filed by a third party who is not connected with the case.
Mr Agrawal, strongly objected to his submission and asked "for whom he is appearing in the matter".
"Is Mr Sibal appearing for Hindujas or the Bofors company, he should clarify," Mr Agrawal said.
Mr Sibal told the bench that earlier he had appeared for late Prime Minister Rajiv Gandhi in the case.
The senior lawyer was present in the courtroom and sitting in front along with advocate Ujjwal Rana, who appeared for Hinduja brothers in the Bofors case since beginning.
Explaining his locus, the BJP leader said a crime against society has been committed in the Bofors matter and this was a case where huge public money was involved.
"This is the case where the security of the country is involved. He said if government would have purchased the French Sofma gun, as recommended by the then Army General, the casualties of our soldiers would have been much less in Kargil war. So every citizen of this country is affected in this particular case. If the corruption is allowed to go on in defence deals, the security of the country would be threatened," Mr Agrawal said while referring to the recent Augusta Westland scam case.
The bench, however, remained unimpressed and asked the petitioner to satisfy it on the point of locus standi.
Justice RS Sodhi of Delhi High Court, since retired, had on May 31, 2005 quashed all charges against the three Hinduja brothers -- Srichand, Gopichand and Prakashchand -- and the Bofors company, castigating the CBI for its handling of the case, saying it had cost the exchequer about Rs 250 crore.
Before the 2005 verdict of Justice Sodhi, another judge of the Delhi High Court, retired Justice JD Kapoor, had on February 4, 2004, exonerated the late prime minister in the case and directed the framing of charge of forgery under section 465 of the IPC against Bofors company.
The Rs 1,437-crore deal between India and Swedish arms manufacturer AB Bofors for the supply of 400 155mm Howitzer guns for the Indian Army was entered into on March 24, 1986.
Swedish Radio on April 16, 1987, had claimed that the company had paid bribes to top Indian politicians and defence personnel.
The CBI on January 22, 1990 had registered the FIR for alleged offences of criminal conspiracy, cheating and forgery under the Indian Penal Code and other sections of the Prevention of Corruption Act against Martin Ardbo, the then president of AB Bofors, alleged middleman Win Chadda and the Hinduja brothers.
It had alleged that certain public servants and private persons in India and abroad had entered into a criminal conspiracy between 1982 and 1987 in pursuance of which the offences of bribery, corruption, cheating and forgery were committed.
The first charge sheet in the case was filed on October 22, 1999, against Chadda, Ottavio Quattrocchi, the then defence secretary S K Bhatnagar, Ardbo and the Bofors company.
A supplementary charge sheet was filed against the Hinduja brothers on October 9, 2000.
A special CBI court in Delhi on March 4, 2011, had discharged Mr Quattrocchi from the case saying the country could not afford to spend hard-earned money on his extradition which had already cost Rs 250 crore.
Mr Quattrocchi, who had fled from here on July 29-30, 1993, never appeared before any court in India to face prosecution.
He passed away on July 13, 2013. The other accused persons who died are Bhatnagar, Chadda and Ardbo.