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January 23, 1998


Delhi HC dismisses Swamy's revised plea against Chidambaram

The Delhi high court today dismissed the criminal revision petition filed by Janata Party President Subramaniam Swamy seeking prosecution of Finance Minister P Chidambaram for allegedly not disclosing the true value of promoters' shares of Fairgrowth Financial Services Ltd which he had bought in 1992.

Justice A JK Srivastava, in his 12-page order, said in view of the averments made by K Parasharan and Arun Jaitley, counsel for Chidambaram, attorney general Ashok Desai for the Central Bureau of Investigation and Dr Swamy in person, ''I reject the revision petition without going into the merits (of the case).''

The judge said Swamy was not the affected person and had initially filed the complaint in the nature of a public interest litigation before the trial court. Later, he amended the complaint to make out a better case of prosecution of Chidambaram for offences under Sections 11 and 13 of the Prevention of Corruption Act, the judge said.

He dismissed the petition on the ground that the amended complaint filed before the high court was materially different from the complaint lodged before special judge Ajit Bharihoke.

"Further, a message should also go that the revisionists may not be heard if copy of complaint filed along with revision petition are materially different from that lodged in the court below, as such conduct on their part may lead to grave miscarriage of justice,'' Justice Srivastava observed.

Swamy sought Chidambaram's prosecution for buying certain FFSL shares at face value of Rs 10 per share while he was commerce minister in the Narasimha Rao government and not disclosing the true value in his income tax returns.

The judge said in his order, ''In the facts and circumstances of the case before me, in my opinion, it would be appropriate that the revision be dismissed.''

However, the judge did not express any opinion on Chidambaram's plea for initiating proceedings against Dr Swamy under Section 193 of the Criminal Procedure Code. For fabricating false evidence for the purpose of being used in judicial proceedings.

Justice Srivastava also refused to express his opinion whether the act of filing of a different amended complaint with revision petition was intentional or only an outcome of inadvertent error on the part of the clerk of the counsel for Swamy.

Swamy had moved the revision petition before the high court against Bharihoke's April 26 order refusing to take cognisance against Chidambaram under Section 190 of CrPC and dismissing the complaint saying it did not disclose commission of offence under Sections 11 and 13 (1) (d) of the PCA.

Justice Srivastava, after hearing detailed arguments of the attorney general, Parasharan, Jaitley and Swamy, had reserved his judgement on January 9.

The question on maintainability of Swamy's revision petition came after Justice Jaspal Singh, who was hearing the case before vacations, found grave material difference in the copy of the complaint filed along with the revision petition and the original one moved before the trial court.

Later, Chidambaram moved an application seeking dismissal of the revision petition on the ground that the notice issued to CBI and him was on the basis of the revision petition, facts of which were in Swamy's favour. Chidambaram also sought prosecution of the Janata Party president for presenting wrong facts to strengthen his charges.

Both the CBI and Chidambaram alleged that Swamy had 'played a fraud' with the court by adding and deleting 'vital ingredients' to a complaint that he had filed against Chidambaram in the trial court.

Justice Srivastava said the question before the court was whether the revision petition should be dismissed on the sole ground that there was material difference in the two complaints.

While arguing against Chidambaram's application against him, Swamy contended that there was no intention to deceive the court and he had by mistake filed the amended petition, actually meant to be moved before the trial court, before the high court.

"I was flabbergasted when Justice Jaspal Singh pointed out that there were serious interpolations in his complaint before him,'' Swamy said, adding that the error was innocent and he had no intention of camouflaging the truth.

Swamy explained that he did not personally inspect the files at any relevant time, adding that there was not a single contradiction of what he had said in the original complaint. The only allegation against him was that he had amended his complaint, he added.

He said when he had, in his revision petition, prayed for calling of the trial court records, how could he have the intention to deceive the court. ''I have no motive to mislead the court. In fact, it is Chidambaram who has misguided the court'' by saying on oath on April 26 that he was a minister during the relevant time when actually he was not.

This was done to escape the question of sanction, Swamy added.

He submitted that even after finding material differences in his petition, Justice Singh issued notices to CBI and proceeded with the matter since there was enough material to proceed in the case. The petition because of this reason should not be dismissed and the case be proceeded so that corruption in high places was exposed.

Technical questions should not come in the way of public interest litigations as the prime motive of such petitions is to safeguard the public interest. He cited several judgements to support this contention.

Rather than seeking the technical methods for dismissal of the petition, Chidambaram should fight the case on merits and win it, the Janata Party president challenged.

The question of political rivalry, as alleged by Chidambaram's counsel, does not arise because he and Chidambaram were once in the same front fighting against former Tamil Nadu Chief Minister J Jayalalitha.

Rrefuting Swamy's contention that the amended complaint was filed by his advocate's clerk without his knowledge, counsel for Chidambaram said, ''How could a clerk do this on his own. This is the defence of every person caught of his misdeeds.''

Jaitley said the question of acquiring sanction does not arise as Chidambaram had purchased the said shares in his personal capacity.

The CBI had also dismissed as 'unmaintainable' the arguments of Swamy that he could not file the amended complaint before the trial court and when he approached the high court 'by mistake', he attached the copy of the amended complaint with the revision petition.

Terming the matter very serious in nature, Desai argued that but for the vigilance of Justice Jaspal singh, the 'irregularities' would have gone unnoticed and the case would have proceeded on the basis of the false complaint.

Not pointing out the mistake, if any, by Swamy till it was noticed by Justice Singh itself spoke of a 'mala fide' intention, Desai said.

Meanwhile, Swamy today said he would file a fresh criminal complaint against Chidambaram.

Swamy, in a release, said that following the Delhi high court's order dismissing his revision petition seeking prosecution of Chidambaram, he would move a fresh criminal complaint before the special judge charging the finance minister under the Prevention of Corruption Act.

Chidambaram sues Swamy


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