Harinder Singh Chaudhary vs U.O.I. And Ors.
1990 Latest Caselaw 563 Del

JUDGMENT

M.K. Chawla, J.

1. By this order, I propose to dispose of the following applications seeking impalement/intervention in the present proceedings. The applicants are :

(1) Crl. M. 1824/90--By Shri Prashant Bhushan;

(2) Cr. M. 2356/90-By C.P.I. (M)

(3) Cr. M. 2356-A/90--By Janata Dal

(4) Cr. M. 2356-B/90--By BJ.P.

(5) Cr. M. 2564/90-By Shri N. Ram

(6) Cr. M. 2620/90--By C.P.I.

(7) Cr. M. 2631/90--By Congress (S)

2. The submissions of the learned counsel for the applicants in brief are that the petitioner has no locus standi to challenge the criminal law investigation by way of public interest litigation. He in fact has been set up by the accused/possible prospective accused persons. The public interest litigation is in fact a social action litigation which is intended for the protection of socially and economically deprived sections of the society who are otherwise unable to petition themselves before the court on account of their deprivation. The holders/beneficiaries of foreign bank accounts and also the recipients of the money abroad, against whom the present investigation is directed can never be regarded as socially and economically deprived persons unable to approach the court.

3. The further submission is that if the petitioner is a citizen of India, the applicants are also sailing in, the same boat. If he is a practicing lawyer, they are also in the same profession and have a better standing. If he claims to be the Joint Secretary of an Organisation, named "Rashtriya Jan Parishad", which is devoted to uphold the rule of law and fight against injustices, the applicants are the recognised political parties of India and interested in the dispensation of justice in the manner envisaged by the founding fathers of the Constitution. In nutshell, their contention is that the applicants are in a better position to assist the court being better equipped with the material relevant to the point in issue. They should thus be imp leaded as parties, with permission to address arguments.

4. Learned counsel for the petitioner, however, referred to and relied upon the provisions of Sections 24(1) and (8), 25(3), 302 and 321 of the Code of Criminal Procedure, to emphasise that the political parties who are the applicants before this court cannot be allowed to assume the role of public prosecutors, wherein the State and the CBI are fully represented.

5. There are two aspects on which this question of locus standi can be looked into. The first being that the public interest litigation is primarily meant for the persons whose fundamental rights are being violated but they are not in a position to approach the court to defend their rights being poor or members of a backward class. This aspect has been lucidly and vividly dealt with in the Judgment reported as Bandhua Mukti Morcha v. Union of India, , holding.

"It is clear on the plain language of Clause (1) of Article 32 that whenever there is a violation of a fundamental right, any one can move the Supreme Court for enforcement of such fundamental right. Of course, the Court would not, in exercise of its discretion, intervene

at the instance of a meddlesome inter-lopper or busy body and would ordinarily insist that only a person whose fundamental right is violated should be allowed to activise the Court. Where, however, the fundamental right of a person or class of persons is violated but who cannot have resort to the Court on account of their poverty or disability or socially or economically disadvantaged position the Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons and move the Court for judicial enforcement of the fundamental right of such person or class of persons. This does not violate in the slightest measure, the language of the constitutional provision enacted in Clause (1) of Article 32."

6. There is no quarrel on this proposition and I do not propose to refer to other judgments on this aspect. Certainly, the present petitioner does not fall in this category even though he may not be a person set up by the so-called holders/beneficiaries of foreign bank accounts.

7. During the course of arguments, Shri Ram Jethmalani, Senior Advocate, appearing for Janata Dal and Shri Prashant Bhushan frankly conceded that in case Shri Win Chadha who has been named as one of the accused in the F.I.R. had filed the petition in place of the present petitioner, they could not have been imp leaded and their intervention would not have been necessary. However, he added that in case the representation of the Government was inadedquate, the applicants could still have sought permission to intervene. On the same parity, in my opinion, there can be no quarrel with the proposition that in case the petitioner is held to be having no locus standi, to file the present petition, the applicants will have no right to be imp leaded as parties.

8. The only question that now survives for determination is as to whether, the petitioner has a locus standi to maintain the present petition.

9. In my opinion, the case of the petitioner does not fall within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha (supra). So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf. The same is hereby dismissed.

10. As a consequence of the dismissal of the present petition, holding that the petitioner has no locus standi, the applicants have no right to be imp leaded and their impalement/intervention applications are also rejected.

11. This is not the end of the matter. There is yet another process by which the court can take judicial notice of any illegality being committed by any court, with a view to prevent the injury being caused to the known or unknown aggrieved party. To illustrate the point, we may refer to some of the provisions of the Code.

12. The first provision is Section 190 under which a Magistrate can take cognisance of any offence:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed;

13. The next provision is Section 397 which empowers this court to call for and examine the records of any proceedings before any inferior court for the purposes of satisfying itself or himself, as to the correctness, illegality and propriety of any finding, sentence or order, recorded or passed by any such inferior court.

14. The next provision relevant to this aspect is Section 482 of the Code which inter alia provides, "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any order under this Code, or to prevent the abuse of the process of any court or otherwise to secure the ends of justice."

15. Similarly while exercising the power of revision under Section 401, the High Court suo moto or on coming to know of any illegality having been committed can call for the record and set it right. This provision reads as under :

"401. High Court's power of revision.--(1) In the case of any proceedings the record which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the. Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2)... ............"

16. This provision confers a kind of paternal and supervisory jurisdiction on the High Court over all other criminal courts established in the State in order to correct miscarriage of justice arising from a misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has on the one hand resulted in some injury to the due maintenance of law and order or, on the other hand, in some undeserved hardship to individuals. The revisional power conferred upon the High Court by this Section is discretionary power, which has to be exercised to the aid of justice in accordance with the principles of criminal jurisprudence and that subordinate courts do not exceed their jurisdiction, or abuse their power vested in them by the Code.

17. If the clear illegality or injustice comes to the notice of the High Court by whatsoever means it might be, the suo moto jurisdiction of the High Court is always available to correct such mistakes. A criminal revision can be instituted on knowledge from any source. In Rattan Singh v. State of Maharashtra, 1977 Crl.L.J. 673, the Division Bench while examining the scope of suo moto exercise of revision jurisdiction under Section 401, observed, "If undisputed illegality of conviction has been brought to the notice of the High Court, it cannot refuse to interfere merely because the accused concerned did not challenge the same by preferring an appeal. Prohibition contained in the provision of Section 401(4) of the Code against entertaining applications for revision against appellate orders does not prevent the court in taking the matter suo moto for exercising its revisional powers." To the same effect is the Judgment reported as Mohammad v. State of Kerala, 1982 Crl. L,J. 1120 and Range Forest Officer, Sirsa and Ors. v. Anand Venkataraman Hegde, 1978 Crl. L.J. 1374.

18. A bare perusal of these provisions leaves no doubt in my mind that this court by itself can call for the record of the lower court if it comes to or is brought to its knowledge that any illegality is being committed at the instance of the State or by the Investigating Agency in the garb of discharging their duties under any provision of law. Such an information could be gathered from any quarter i.e. through media reports or upon an information given to it by a stranger. In such matters, the question of locus standi does not come into play.

19. In the light of the settled legal proposition, I have carefully examined the record placed before me. Prima facie, I am of the opinion that the following illegalities have been committed by the trial court :

(1) That the FIR filed by the CBI in this case on the face of it does not disclose any offence. It is in violation of the provisions of Section 154, inasmuch as no investigation can be carried out for an offence alleged to have been committed outside India, and the court of the Special Judge should not have taken cognizance of the same.

(2) That the C.B.I. should have exhausted their remedies before the J.P.C. before launching proceedings in the court of the Special Judge inasmuch as the same investigating agency cannot be allowed to override the findings of the J.P.C. and this aspect has not been taken into consideration by the trial court.

(3) The court of the Special Judge who issued letter oratory had no jurisdiction to entertain such a request or to pass any order on it.

(4) The so-called memo of understanding relied upon by the trial court was contrary to the Municipal law of the land and is violative of Article 21 and 300-A of the Constitution of India.

(5) That the CBI is not a legally constituted force which can be entrusted with the investigation; and

(6) That the investigation on the face of it is biased and influenced by outside agencies.

20. So, I suo moto take cognizance while exercising my powers under Sections 397 and 401 read with Section 482 of the Code, and direct the office to register the case under the title, Court on its own motion v. State and CBI.

21. Consequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No. RCA (A)/90/ACU-IV dated 22.1.90, pending in the court of Shri V.S. Aggarwal, Special Judge, Delhi, be not quashed.