@JUDGMENTTAG-ORDER
Cyriac Joseph, J.@mdashThis is an unusual petition filed under extraordinary circumstances. In this petition filed u/s 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as ''the Code'') the petitioner prays for quashing or deleting the name of a dead person from column No. 2 of a charge sheet filed by the Central Bureau of Investigation (CBI) in the Court of the Special Judge, CBI, Delhi.
2. The petitioner is the Rajiv Gandhi Ekta Samiti through its President Shri Ravindra Gupta. The respondents are the Union of India, through its Secretary (Home) and the Central Bureau of Investigation through its Director. Even though this Court did not issue any formal notice to the respondents, the learned Additional Solicitor General Shri S.B. Jaisinghani volunteered to assist the Court on behalf of the respondents. Hence in deciding this case this Court had the assistance of Shri V.K. Shukla, learned counsel for the petitioner and Shri S.B. Jaisinghani, the learned Additional Solicitor General.
3. It is necessary to state the background of this case. The name of the late Shri Rajiv Gandhi, a former Prime Minister of India, was included in the charge sheet dated 22.10.1999 filed by the CBI in the Court of the Special Judge, CBI, Delhi in connection with FIR No. R.O.1 [A]/90-ACU-IV which had been registered by the CBI on 22.10.1990. According to the said charge sheet, information received by the CBI had revealed that between 1982 and 1987 certain public servants entered into a criminal conspiracy with W.N. Chadha, Martin Ardbo, G.P. Hinduja and others in India and abroad, and in pursuance thereof, committed offences of criminal conspiracy, bribery, criminal misconduct by public servant, cheating, criminal breach of trust, forgery for the purpose of cheating and using as genuine a forged document in respect of the contract dated March 24, 1986 entered into between the Government of India and M/s. A.B. Bofors of Sweden for a value of Swedish Kroners 8410.66 million (Rs. 1437.72 crores) for the supply of four hundred 155 mm FH 77-B guns (towed), vehicles and ammunition etc., by M/s. A.B. Bofors. Investigation conducted in India and abroad revealed that the accused S.K. Bhatnagar, W.N. Chadha @ Win Chadha, Ottavio Quattrocchi, Martin Ardbo, M/s. A.B. Bofors and the late Shri Rajiv Gandhi entered into/were parties to a criminal conspiracy with some other persons at New Delhi, Sweden, Switzerland and other places during the period 1985 - 87 and thereafter, with an object to award a contract by Government of India in favor of M/s. A.B. Bofors for the purchase of 400 numbers of 155 mm FH 77-B gun systems by abuse of official position by the above said public servants and for causing wrongful gain to private persons/others and corresponding wrongful lose to the Government of India in the said gun deal. Investigation also revealed that the accused S.K. Bhatnagar and others, in pursuance of the said criminal conspiracy, committed various acts of omission and commission in the award of contract to M/s. A.B. Bofors. It is also stated in the charge sheet that the late Shri Rajiv Gandhi was the Prime Minister during the relevant period and was holding the portfolio of Ministry of defense also from September 1985 to January 1987. According to the charge sheet, in tune with the policy of the Government of India not to allow middlemen/agents in the deal, no commissions were to be paid by M/s. A.B. Borfors in connection with the contract. But the accused persons dishonestly led the Government of India to believe that there were no agents and induced the Government to part with an amount of SEK 242.6 million which eventually was passed on by M/s. A.B. Bofors to its agents as commission. It is further stated that the late Shri Rajiv Gandhi, S.K. Bhatnagar, Ottavio Quattrocchi, W.N. Chadha, Martin Ardbo, former President of M/s. A.B. Bofors with M/s. A.B. Bofors of Sweden, in pursuance of the aforesaid criminal conspiracy, showed undue favor to M/s. A.B. Bofors in the award of the above said contract dated March 24, 1986 causing wrongful gain to M/s. A.B. Bofors, Ottavio Quattrocchi and W.N. Chadha and corresponding loss to the Government of India and that the Government of India was cheated to the tune of the commission amount (SEK 242.62 million) paid by M/s. A.B. Bofors to its agents in the said deal. It is also stated in the charge sheet that the facts revealed during the Investigation constitute commission of offences punishable u/s 120B read with Section 420 of the Indian Penal Code and Section 5 read with Section 5(2)(d) of the Prevention of Corruption Act, 1947 by late Shri Rajiv Gandhi, S.K. Bhatnagar, Ottavio Quattrocchi, W.N. Chadha, Martin Arbdo, former President of M/s. A.B. Bofors and M/s. A.B. Bofors, Sweden. As per the charge sheet, the late Shri Rajiv Gandhi committed substantive offences punishable u/s 5(2) r/w 5 of the Prevention of Corruption Act, 1947. It is also stated that sufficient oral and documentary evidence is available against the accused persons to prove the said offences. The prayer at the end of the charge sheet is that cognizance of the offences may be taken against S.K. Bhatnagar, Ottavio Quattrocchi, W.N. Chadha, Martin Ardbo and M/s. A.B. Bofors of Sweden and that may be tried in accordance with law. It is also stated that none of the said accused persons was arrested during the investigation.
4. It has to be pointed out that the above mentioned charge sheet does not contain any prayer or request to take cognizance of any offence against the late Shri Rajiv Gandhi. The name of the late Shri Rajiv Gandhi is not shown in column No. 1 of the charge sheet which is meant for "names and addresses of accused persons sent up for trial, whether in custody or on bail or recognizance". His name appears only in column No. 2 which is meant for "names and addresses of accused persons not sent up for trial whether arrested or not arrested, including absconders". The name is shown in Column No. 2 as "Late Shri Rajiv Gandhi s/o Shri Firoze Gandhi, former Prime Minister of India". Thus, from the charge sheet it is clear that, notwithstanding the alleged involvement of the late Shri Rajiv Gandhi in the commission of the offences, he is not sent up for trial and there is no prayer to the Court to take cognizance of any offence against him or to try him. The learned Additional Solicitor General also stated that the charge sheet was filed only against the persons whose names were mentioned in column No. 1 and not against the late Shri Rajiv Gandhi and that the late Shri Rajiv Gandhi would not be tried in the case he was not among the accused sent up for trial. He also clarified that though it was not specifically stated in the charge sheet, it was obvious that the late Shri Rajiv Gandhi was not sent up for trial as he was not alive.
5. The petitioner, Rajiv Gandhi Ekta Samiti, claims to be is a social service organisation engaged in social work. It was established in the memory of Shri Rajiv Gandhi. According to the petitioner of the inclusion of the name of the late Shri Rajiv Gandhi in the above mentioned charge sheet submitted by the CBI is illegal and an abuse of the process of the court and by including his name in the charge sheet injustice has been caused to him. It is contended that there is no provision of law to file a charge sheet against a dead person. It is also contended that Column No. 2 in the charge sheet is meant for names and addresses of the accused persons not sent up for trial, whether arrested or not arrested, including the absconders. It is not meant for dead persons and, Therefore, the name of Shri Rajiv Gandhi who was assassinated on 21.5.1991 and is not alive, cannot be included in Column No. 2 of the charge sheet. It is also contended that the late Shri Rajiv Gandhi cannot be tried by the Court as there is no provision in the Code for posthumous trial of a person. According to the petitioner the names of only those persons who can be either acquitted or convicted after trial by the court can be included in the charge sheet. Since no order of acquittal or conviction can be passed by a Court in respect of a dead person the name of the late Shri Rajiv Gandhi could not have been included in the charge sheet. It is further contended that a dead person who cannot defend himself cannot be called an accused or arrayed as an accused in a charge sheet. The petitioner has also pointed out that the late Shri Rajiv Gandhi was not named in the FIR in the case and that he was never interrogated by the CBI during his life time. The late Shri Rajiv Gandhi had no occasion or opportunity to admit or deny the allegations based on which he has been arrayed as an accused. He will not get such an opportunity now since he is not alive. Even his statement cannot be recorded u/s 313 of the Code as he is not alive. Another contention of the petitioner is that on the basis of the evidence so far collected by the CBI on charge can be framed against the late Shri Rajiv Gandhi even if he is alive. According to the petitioner, even a prima facie case is not made out against Shri Rajiv Gandhi and there is absolutely no evidence to show that any part of the alleged commission amount was received by the late Shri Rajiv Gandhi. He has been made an accused on the basis of his approval of the decision to award the contract to M/s. A.B. Bofors. The said approval was given by late Shri Rajiv Gandhi on the basis of the recommendation made by the officers and the Ministers concerned. It was part of his official duty as defense Minister/Prime Minister. It cannot be questioned in a court of law even if Shri Rajiv Gandhi was alive. It is further contended that the name of Shri Rajiv Gandhi is included in the charge sheet as an accused without obtaining the sanction required u/s 197 of the Code. According to the petitioner the inclusion of the name of Shri Rajiv Gandhi in column No. 2 of the charge sheet is unlawful and unnecessary and it is an abuse of the process of the court and a deliberate act of injustice against the late Shri Rajiv Gandhi. The petitioner apprehends that if the name of the late Shri Rajiv Gandhi is not deleted from the charge sheet he would be branded as an accused in this case for ever. According to the petitioner the name of Shri Rajiv Gandhi has been tarnished by the inclusion of his name in the charge sheet and his prestige has suffered a major set back. The petitioner and crores of admirers and well wishers of the late Shri Rajiv Gandhi have been hurt by the treatment meted out to their beloved leader who was also a recipient of ''Bharat Ratna'' the highest award of the country. The petitioner expected that the respondents would order deletion of the name of Shri Rajiv Gandhi from the charge sheet keeping in view the sentiments of his admirers and well wishers. Since the Prime Minister has ruled out the possibility of deleting the name of the late Shri Rajiv Gandhi from the impugned charge sheet, the petitioner has filed this petition u/s 482 of the Code for preventing the abuse of the process of court and to secure the ends of justice. During his oral submissions the learned counsel for the petitioner reiterated the above contentions. He also argued that an accused has to be a living person and that a dead person cannot be described as an accused. The petitioner has made the following prayers in this petition :-
"(i) Quash or delete the name/entry of words "Late Shri Rajiv Gandhi S/o Late Shri Feroze Gandhi, former Prime Minister of India", from Column No. 2 of the Charge Sheet No. 01 [Annexure P 1] in the F.I.R. No. R.O.1 [A] 90-ACU-IV submitted and forwarded by the Special Investigation Cell, C.B.I. on 22.10.1999 in the Court of Special Judge, [C.B.I. Cases], Delhi presided over presently by Mr. Ajit Bharihoke be quashed under inherent powers of this Hon''ble Court as provided u/s 482 of the Cr.P.C.;
(ii) Pass such other or further orders as may deem fit and proper in the interests of Justice."
6. The learned Additional Solicitor General questioned the very locus standi of the petitioner to file this petition. He contended that a third party had no locus standi to file a petition to delete the name of an accused from the charge sheet and that, at any rate, the petitioner was not aggrieved by the inclusion of the name of the late Shri Rajiv Gandhi in the charge sheet. He also contended that even assuming (and not conceding) that the inclusion of the name of the late Shri Rajiv Gandhi in the charge sheet was wrong or illegal, only his legal representatives could be allowed to challenge it. When the widow and the children of Shri Rajiv Gandhi have not chosen to approach the Court, why should a third party like the petitioner be entertained by the Court, asked the learned Additional Solicitor General. It was also submitted that many of the contentions raised by the petitioner were misconceived and irrelevant because they were based on a wrong assumption that the charge sheet was filed against the late Shri Rajiv Gandhi and that he also would be tried in the case. It was pointed out that the charge sheet did not contain any prayer to the Court to take cognizance of any offence against the late Shri Rajiv Gandhi or to try him for any offence. The prayer in the charge sheet was to take cognizance of the offences against Shri S.K. Bhatnagar, Ottavio Quattrocchi, W.N. Chadha, Martin Ardbo and M/s. A.B. Bofors of Sweden and to try them in accordance with law. The name of the late Shri Rajiv Gandhi was shown only in Column No. 2 meant for the accused who were not sent up for trial whereas the names of the above mentioned persons were shown in Column No. 1 meant for the accused persons sent up for trial. According to the learned Additional Solicitor General when the late Shri Rajiv Gandhi is not being tried as an accused in the case, it is unnecessary for this Court to consider the merits of the allegations contained in the charge sheet against the late Shri Rajiv Gandhi or to examine whether a prima facie case was made out against him. The Additional Solicitor General defended the action of the CBI in mentioning the name of the late Shri Rajiv Gandhi in the charge sheet. He pointed out that the offences included conspiracy entered into by several persons and the unlawful acts done in pursuance of the said conspiracy. Since the late Shri Rajiv Gandhi was allegedly involved in the commission of the offences his name had to be mentioned and his role had to be stated in the charge sheet submitted in terms of Section 173(2) of the Code. There was nothing unusual or abnormal about it. The CBI was only discharging its statutory duty. At the same time, Realizing that Shri Rajiv Gandhi was not alive and could not be tried as an accused, his name was not included in Column No.1 meant for names of accused persons sent up for trial. Instead, his name was shown in Column No.2 meant for names of accused persons not sent up for trial. However, the learned Additional Solicitor General clarified that even though the late Shri Rajiv Gandhi would not be tried in this case, the alleged involvement of the late Shri Rajiv Gandhi in the commission of the offences would come under scrutiny as part of the trial of those accused who were sent up for trial. According to the learned Additional Solicitor General, because of the death of one of the accused persons the co-accused who are alive cannot escape the trial and the case against the co-accused cannot be given up on account of the death of one of the accused persons. Otherwise, in a case in which the offence was committed by several persons the co-accused could escape trial and conviction by ensuring the death of one of the accused persons. According to the learned Additional Solicitor General, when the co-accused sent up for trial in this case are tried and the evidence in the case is considered by the Court for the purpose of deciding whether they are guilty or not, the alleged involvement of the late Shri Rajiv Gandhi in the commission of the offences might incidentally come up for consideration despite the fact that he is not alive and is not being tried. This situation can be avoided only by deciding not to proceed against the co-accused who are alive. Such a decision cannot be taken as it will be wrong and against public interest. Even if this situation might cause some harm to the reputation and prestige of a person who is not alive and is not in a position to defend himself, it cannot be helped and it should be taken as unavoidable and necessary evil in the system of administration of Justice and it should be ignored in the larger public interest. The learned Additional Solicitor General further contended that if the references to the name of the late Shri Rajiv Gandhi were omitted from the charge sheet, such omission would weaken the prosecution case against the co-accused. Hence, according to the learned Additional Solicitor General, there is no justification for the prayer for deleting the name of the late Shri Rajiv Gandhi from the charge sheet. He also pointed out that the prayer in the petition is only for deleting the name of Shri Rajiv Gandhi from Column No. 2 of the charge sheet and that there is no prayer for deleting his name from wherever it appears in the charge sheet or for deleting all references to the late Shri Rajiv Gandhi in the charge sheet. He wondered what consolation the petitioner would get even if the name is deleted from Column No. 2 and all the references in Column No. 5 remain.
7. Since the learned Additional Solicitor General questioned the locus standi of the petitioner to file this petition ,I shall first deal with the question of locus standi of the petitioner. The petitioner claims to be a social service organisation engaged in social work. It was established in the memory of the late Shri Rajiv Gandhi. Along with an affidavit dated 18.11.1999 of the petitioner, a copy of the Constitution of Rajiv Gandhi Ekta Samiti and photocopies of some correspondence between the petitioner and others were produced. As per its Constitution, the aims and objects of the organisation. The learned counsel for the petitioner admitted that it is not a Registered Association. As per its Constitution, the aims and objects of the organisation include: (i) to preach and propagate all over India the principles and ideologies cherished and expounded by Amar Shaheed Shri Rajiv Gandhi, (ii) to take up programmes for keeping the name of late Shri Rajiv Gandhi alive and to approach the concerned officials for implementation of such programmes or schemes, (iii) to organise Rajiv Gandhi''s martyrdom day, i.e. 21st May, as Anti Terrorism Day and to make efforts to get this day declared by Government as Anti Terrorist Day, (iv) to arrange functions for spreading goodwill on the birth day of Shri Rajiv Gandhi and (v) to take appropriate action wherever necessary in courts and other forums for questioning action or design to malign the name of the late Shri Rajiv Gandhi. The photocopies of the correspondence produced by the petitioner relate to the period from 1992 to 1999. They include letters received by the petitioner from the O.S.D. to the Chief Minister Delhi, the Minister Urban Development, Government of India; the Minister of Textiles India, General Secretary All India Congress Committee (I), Personal Assistant to the Minister of Railways; the Assistant Private Secretary to the Minister of State, Ministry of Mines, Government of India; the Minister, Surface Transport, India, the D.D.A., New Delhi; the Prima Minister''s Office; the Rajiv Gandhi Foundation; the General Manager, Delhi Transport Corporation; the Minister of State for Textiles, Government of India; the Minister of State Youth Affairs and Sports; Smt. Sonia Gandhi; the Minister for Health and Family Welfare, Government of India etc. The above documents indicate that the petitioner Organisation was founded in the name of the late Shri Rajiv Gandhi and it has been in existence since 1992 and that the President of the Organisation has been corresponding with responsible people and authorities. The petitioner''s interest in the late Shri Rajiv Gandhi and the petitioner''s commitment to him are evident from the documents produced.
8. Since this petition has been filed u/s 482 of the Code it is also necessary to refer to the provisions contained therein. Section 482 of the Code reads thus :-
"S. 482: Saving of inherent powers of High Court -
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The inherent power recognized in this Section can be exercised by the High Court : (i) to give effect to any order passed under the Code or (ii) to prevent abuse of process of any court or (iii) otherwise to secure the ends of justice. Section 482 does not say who is entitled to move the Court for invoking the jurisdiction of the Court under that Section. There is no reference to ''person aggrieved'' or ''person interested''. There is no mention of persons entitled to move the court or prohibited from invoking the jurisdiction under this Section. It is a provision devised to advance justice and not to frustrate it. Hence a liberal view has to be taken on the question of locus standi of a person to move the court under the said provision. The anxiety and endeavor of the court should be to prevent the abuse of the process of court and to secure the ends of Justice. The High Court should not be bogged down by hyper technical arguments on the locus standi of the person who brings any abuse of the process of the court or any injustice to the notice of the High Court. If there is any abuse of the process of the Court or any injustice ordinarily it should not be allowed to continue after it is brought to the notice of the High Court. At the same time the High Court must be prudent and careful to see that the person who approaches the Court is acting bona fide and not for personal gain or private profit or political motive or oblique considerations. The High Court must not allow its process to be abused by self-seeking and self serving persons under the garb of public interest litigants. Hence, it is difficult to lay down a hard and fast rule or a straight jacket formula for deciding the locus standi of persons who invoke the jurisdiction of the High Court u/s 482 of the Code. Each case has to be considered on the particular facts and circumstances of the case bearing in mind the scope and spirit of the statutory provision.
9. In
"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offences of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.______In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contraindicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See: Section 2(n), Cr. P.C. ) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception".
It is true that in the above case the Hon''ble Supreme Court was considering the locus standi to set or put the criminal law into motion against persons alleged to have committed an offence. In the case at hand the petitioner has approached the Court to protect the interest of a person who is an accused but is not alive to defend himself and to protect his interest. In my view, providing a fair opportunity to an accused to counter the allegations against him and to prove his innocence is equally important as punishing the offender. If the accused is disabled from defending himself and protecting his interest due to reasons beyond his control, there is no harm in permitting a third person, genuinely interested in the said accused, to move the Court for ensuring that no injustice is done to the said accused. Section 482 of the Code should come to the aid and protection of such accused persons.
10. In the Janta Dal Vs. H.S. Chaudhary & Others, JT 1991 (3) 497 (vide paragraphs No. 26 and 27) the Hon''ble Supreme Court held that even if there are million questions of law to be deeply gone into and examined in a criminal case registered against specific accused persons, it is for them and they alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. It was further held that the petitioner in that case (H.S. Chaudhary) had no locus standi to invoke the extra ordinary jurisdiction of the High Court u/s 482 of the Code for quashing the FIR and all other proceedings arising there from on the plea of preventing the abuse of process of the court. In the above mentioned case the accused persons were alive and were capable of defending themselves and protecting their interests and it was also not shown that the petitioner Mr. H.S. Chaudhary had any particular or special interest in the accused persons. But in the present case the position is different. The accused, Shri Rajiv Gandhi is not alive and is disabled from moving the Court and the petitioner is a voluntary organisation named after Shri Rajiv Gandhi and founded in his memory to uphold the principles and ideology cherished and expounded by him.
11. In
12. The learned Additional Solicitor General referred to paragraph 137 of the judgment in
13. Even though the late Shri Rajiv Gandhi is not sent up for trial due to his death it cannot be disputed that by the inclusion of his name as an accused in the charge sheet a shadow of doubt has been cast on his integrity and reputation and to that extent his honour and prestige are at stake. But he is not alive and hence he cannot appear in the Court to prove his innocence or to save his honour and prestige. If the inclusion of the name of the late Shri Rajiv Gandhi in the charge sheet is illegal and unjustified, it is only just and necessary that any person who is genuinely interested in him is allowed to bring such illegality and injustice to the notice of the Court. Such person could be his relative or close associate or an admirer who has no oblique motive. As pointed out by the learned Additional Solicitor General no member of the family of the late Shri Rajiv Gandhi has approached the Court. That does not mean that a bona fide person who is genuinely interested in the late Shri Rajiv Gandhi should be pre- vented from approaching the Court. The late Shri Rajiv Gandhi was a prominent leader in public life who, according to the petitioner, still commands respect, reverence and admiration of millions of people in this country. Admittedly Shri Rajiv Gandhi is a former Prime Minister of India, a former leader of the Opposition in the Lok Sabha and former President of Congress (I) Party. Considering the particular facts and the peculiar circumstances of this case I am not inclined to throw out this petition on the ground that the petitioner has no locus standi to file the petition. It is necessary in the interest of justice to consider whether there is any merit in the contentions of the petitioner against the inclusion of the name of the late Shri Rajiv Gandhi in the charge sheet.
14. The charge sheet is nothing but the report forwarded to the Court by the Officer in charge of the Police Station u/s 173 of the Code. The provisions of Sections 173 (1) and (2) of the Code are extracted below :
"173. Report of Police Officer on completion of investigation." (1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a Police Report ,a report in the form prescribed by the State Government, stating :-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody u/s 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given."
The provisions contained in Section 173 of the Code show that a report forwarded to the Magistrate should contain the statement as to "whether any offence appears to have been committed and, if so, by whom". Naturally the names of the persons by whom the offence appears to have been committed should necessarily be mentioned in the charge sheet, whether they are alive or not and whether they have been arrested or not and whether they are absconding or not. Hence if the Officer in charge was of the opinion that the offences in this case appeared to have been committed by the late Shri Rajiv Gandhi also, the Officer in charge had no escape from the legal and statutory obligation to mention Shri Rajiv Gandhi''s name in the charge sheet even though he was not alive when the report was sent. When the accused is dead the only thing the Officer in charge can do is to indicate in the report that the accused is dead and that he is not sent up for trial.
15. According to Section 173(2) of the Code the report to be forwarded to the Court under that Section should be in the form prescribed by the Government. It is not disputed that the charge sheet sent by the CBI in this case was in the form prescribed u/s 173(2) of the code. The said form contains five Columns for furnishing the following details :-
(i) Names and addresses of the accused persons sent up for trial, whether in custody or on bail or recognizance.
(ii) Names and addresses of accused persons not sent up for trial whether arrested or not arrested, including absconders (show absconders in red ink).
(iii) Properly (including weapons) found with particulars of where, when and by whom found and whether forwarded to Magistrate.
(iv) Names and addresses of witnesses.
(v) Charge or information, name of offence and circumstances connected with it in concise details and under what section of law charged?.
There is no challenge against the form prescribed by the Government. There is no contention that the prescribed form is not in accordance with the statutory provisions. Hence while furnishing the details mentioned in Column No. 5 the Officer-in-charge had to mention the offences and the circumstances connected with the offences and the names of persons who appear to have committed the offence. Since Shri Rajiv Gandhi could not be sent up for trial, his name had to be shown in Column No. 2 meant for names of accused persons not sent up for trial. Thus by including the late Shri Rajiv Gandhi''s name in Column No. 2 the CBI has not committed any illegality. The CBI has done only its statutory duty u/s 173 of the code. According to the petitioner there was no evidence and materials to enable the Officer in charge to form an opinion that the alleged offences appear to have been committed by the late Shri Rajiv Gandhi. I make it clear that I have not considered whether there is sufficient justification for forming such an opinion. I do not propose to consider that aspect in this case because the late Shri Rajiv Gandhi has not been sent up for trial. I refrain from considering the said aspect for another reason also. The trial court has not yet heard the accused persons sent up for trial on the question of charge and charges have not been framed in the case. It is for the trial court to consider whether there is prima facie case to proceed against the accused persons sent up for trial. It is not proper for this Court to express any opinion on the merits of the charges while considering a petition filed by a third party stated to be interested in the accused who has not been sent up for trial.
16. There is no merit in the contention of the petitioner that the name of a person who is not alive cannot be shown in Column No. 2 of the charge sheet. There is no such restriction or prohibition either in the Code or in the prescribed form. Column No. 2 is meant for names and addresses of accused persons not sent up for trial, irrespective of the reason for not sending them up for trial. Hence the name of an accused person who is not sent up for trial due to his death also can be included in Column No. 2.
17. The contention that only a living person can be described as ''accused'' is not correct. ''Accused'' is a person against whom an allegation has been made that he has committed an offence. Even if that person dies after committing the offence, still the allegation that he committed the offence can exist and hence even after his death, the said person could be de- scribed as ''accused'' in the sense that he is alleged to have committed the offence. But only if the ''accused'' is alive, he can be tried. In the absence of a trial in which the accused is found guilty, the allegation will remain as an unsubstantiated allegation. Hence an accused person not sent up for trial is entitled to the presumption that he is not guilty.
18. There is no posthumous trial of the late Shri Rajiv Gandhi as apprehended by the petitioner. There is no trial at all in respect of the late Shri Rajiv Gandhi. The question of obtaining sanction u/s 197 of the Code or recording statement u/s 313 of the Code does not arise in the case of the late Shri Rajiv Gandhi since he has not been sent up for trial.
19. The extra-ordinary or unusual circumstances in this case is that in the charge sheet filed by the CBI the late Shri Rajiv Gandhi is accused of committing criminal offence, but, he is not sent up for trial because he is not alive. If Shri Rajiv Gandhi was alive he would have been sent up for trial and he would have got an opportunity to defend himself and to prove his innocence and to protect his prestige and reputation. The prosecution is not responsible for the death of Shri Rajiv Gandhi and the prosecution cannot be blamed for not doing the impossible and impermissible act of sending up a dead person for trial. A former Prime Minister of this country and a national leader who is still held in very high esteem by his follow- ers and admires is accused of offences of conspiracy and corruption. But destiny has denied him an opportunity to prove his innocence in a fair trial which is guaranteed even to an ordinary citizen of this country. It is true that in the eyes of law a person is presumed to be innocent until he is tried and found guilty following the due process of law. Since no trial is possible and is contemplated in the case of the late Shri Rajiv Gandhi, in the eyes of law, he is entitled to be seen as innocent and not guilty of the offences alleged against him. Legally speaking, there is no criminal case of criminal proceedings pending against the late Shri Rajiv Gandhi. Notwithstanding the above mentioned charge sheet and the proceedings against the accused persons sent up for trial, the late Shri Rajiv Gandhi is entitled to the benefit of the legal presumption that he is innocent and not guilty. In that sense, by the continuance of his name in the charge sheet no injustice will be caused to him and hence there is no need for any intervention by this Court u/s 482 of the Code. Learned counsel for the petitioner submitted that if the name of Shri Rajiv Gandhi remained in the charge sheet he would appear to be guilty of the charges in the eyes of the public. But this Court is concerned only with the legal perception. Political or public perceptions need not bother this Court. Bearing in mind the basic principles of criminal jurisprudence, this Court can only observe that in the given situation the late Shri Rajiv Gandhi is entitled to the benefit of the legal presumption that he is innocent and not guilty.
20. In the light of the above discussion there is no merit in the petition and hence it is dismissed.
