Posting the matter for hearing on February 2, the bench of Chief Justice Dipak Misra, Justice A. M. Khanwilkar and Justice D.Y.Chandrachud asked the petitioner, practising advocate Ajay Agrawal, to address the court on this aspect and argue within the parameters permitting him to be heard.
Embarking to examine whether third party has a locus in appealing against an order in criminal case, Chief Justice Misra said that the top court was facing problem as it has developed a different kind of criminal jurisprudence.
"You can't invoke Article 136 (on the Constitution, giving the apex court special leave to allow an appeal against any judgment, sentence, and order of any lower Indian court or tribunal) that way. That a third party can be granted permission to file a plea in a criminal case."
"PIL is used in personal battles, political battles, commercial battles, publicity battles and now in criminal jurisprudence," the court wondered as it dwelt on the scope of PILs it has expanded.
Its response came as Agrawal argued that the matter was of public importance as lots of soldiers lost their lives because a faulty selection of gun and a lesson will have to be taught to those who entered into the deal.
The court order came as Additional Solicitor General Maninder Singh told the court that there was no appeal by the Central Bureau of Investigation against the Delhi High Court's 2005 order discharging Hinduja brothers as it was advised so, though adding the judgment ought to have been challenged.
"High Court should not have passed the discharge order in a review plea. It is contrary to Supreme Court order," he said.
At this, the court observed: "If prosecution (CBI) does not challenge or remain silent, (then) why should we get into it."
The Rajiv Gandhi government (1984-89) was rocked over the allegations of kickbacks in the purchase of 155 mm Howitzers guns from the Swedish arms manufacturer.
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