A Delhi court on Friday reserved judgment on the locus standi of an advocate who has challenged the withdrawal of prosecution by the Central Bureau of Investigation (CBI) against Italian businessman Ottavio Quattrocchi in the multi-crore Bofors gun payoff case.
Chief Metropolitan Magistrate (CMM) Kaveri Baweja of the Tis Hazari district courts reserved the judgment after hearing arguments by Additional Solicitor-General, P.P. Malhotra, representing the investing agency, and the advocate petitioner, Ajay Aggarwal.
The thrust of the argument of Mr. Malhotra was that Mr. Aggarwal had no locus standi in the matter because “publicity and politics had no role to play in such matters and such a petition could not be entertained.”
Submitting that the petitioner had prayed that he be treated as a complainant in the matter of withdrawal of prosecution against Quattrocchi under Section 321 of the Criminal Procedure Code, Mr. Malhotra said even a complainant had no locus standi to interfere in the proceedings.
Mr. Malhotra said that if a third party had any remedy, it was that of filing a private complaint if he was aggrieved by the withdrawal of prosecution under provisions of the Code of Criminal Procedure, 1973. He stated that the petitioner had filed the petition without even knowing that the CBI’s application for withdrawal of the prosecution had been filed by the public prosecutor in the case under Section 321 of the Code.
What was to be considered by the court were the bona fides of the public prosecutor, Mr. Malhotra submitted, adding that while granting or refusing permission to withdraw prosecution against an accused, the trial court had to see only whether the executive function of the public prosecutor had been properly exercised or it was just an attempt on his part to interfere with the normal course of justice for illegitimate reasons or purposes.
Mr. Malhotra emphasised that the State was the master of litigation in criminal cases and it was the function and duty of the public prosecutor to examine the matter and to continue or not to continue with the prosecution keeping in view various facts and circumstances. In criminal cases it was the State which was in control of the proceedings, particularly where the prosecution was launched at the instance of the State.
In cases, therefore, in which a public prosecutor appeared it was for him to decide whether he would continue with prosecution or withdraw it, Mr. Malhotra submitted. If the public prosecutor decided to withdraw prosecution he had the powers to apply to the trial court under Section 321 of the Code seeking consent for the same. These powers could not be subjected to the wishes of a third person even though he might be interested directly in the case, Mr. Malhotra clarified. Opposing his contention, Mr. Aggarwal in his argument submitted that any member of society could intervene in the matter as it was a case where public interest was involved. The case was related to the defence deal in which a huge pecuniary loss was caused to the public exchequer. Both parties submitted copies of the Supreme Court judgments in support of their lines of argument to the CMM.
While seeking withdrawal of the prosecution against Quattrocchi last week, the CBI said the matter had been examined by a former and the present Attorney-General of India, the present Solicitor-General of India and also subsequently by the Government of India, and all of them had opined for withdrawal of the prosecution. The Government of India had given its approval for withdrawal of the case, the withdrawal application said.
