1 IN THE SUPREME COURT OF INDIA ORIGINAL

JURISDICTION

Writ Petition (Crl.)

of 2016

IN THE MATTER OF Manohar Lal Sharma Advocate S.C.B.L.No.-1 Supreme court of India, New Delhi-01 Resident of , 31, Gyangudery Vrindaben Mathura , U.P.

Petitioner

VERSUS 1. UNION OF INDIA Through secretary Ministry of Defense North Block - New Delhi 2. Central Bureau of Investigation Through Director Plot no.5-B , 6th floor , CGO Complex , Lodhi Road New Delhi 11,0003

Respondents

Writ petition (PIL) U/Art. 32 & 21 of the constitution of India read with s.420 of IPC & PC Act 1988. To, The Hon’ble Chief Justice of India And His Companion Judges of The Supreme Court of India. The

Petitioner

most

respectfully

Showeth: 1) That Petitioner, citizen of India & by profession an advocate practicing at above address, is filing the present writ petition (PIL) under Art.32 & 21 of the constitution of India read with s.420 of IPC & PC Act 1988 seeking a direction to appoint a special investigation team (SIT) under

supervision by this

2 Hon’ble Supreme Court instead of

by the respondent’s

controlled CBI investigation couple with a direction for quashing of impugned contract/deal dt. Feb 2010 with Finmeccanica Italy for the supply of 12 AW101 helicopters being contra to the law as in the interest of justice. 2) That Petitioner has not approached to the respondents. 3) That Petitioner is also seeking constitutional conflict of legal question to be decided by this Hon’ble Court in the interest of justice as follow: (1) Whether Italian court decision is not enough to implicate and to prosecute named accused persons named in it under PC Act and other of I.P.C.? (2) Whether matter belong to high profile authorities can be left independent in the hand of C.B.I./U.O.I. or must be supervised by this Hon’ble Court ? (3) Whether to finalize of reduction of helicopter’s altitude capacity from 6000 meters to 4500 meters to facilitate Italy suppliers is not a serious criminal offence to compromise against national security under political interest? (4) Whether criminal trial must be concluded against the member of parliament and other within one year or not? 4) That brief facts reveled to the petitioner are as follow:_ a)

That within admitted facts /press note of the defense ministry dt. 14.2.2013 it is revealed to the petitioner that in 2005-06 deal was concluded/ finalized by Mr. Pranav Mukherji , then finance minister , BharatVir Wanchoo, then SPG Chief and M. K. Narayanan then National Security Advisor. It appears that

3 they are awarded constitutional post for their support i.e.to reduce altitude from 6000 mtr to 4500 mtrs just to create way for

Italian company to supply their helicopters instead of

selected Franc company on the behest of the congress leaders which is a serious corruption/ compromise with the national security and also attract PC act 1988 for prosecution after investigation in this regards. i) Pranav

Mukherjii

is

president,

Both

Wanchoo

and

Narayanan are now governors of Goa and West Bengal, respectively. Air Chief Marchal (rtd.) S.P.Tyagi who, Italian prosecutors alleged was bribed in the above deal, is chairman of Williams Global Advisors which offers consultancy in the aerospace and aviation sectors. Mr. Tyagi is still part of the firm. 5)

True facts as per defense ministry press note dt.14.2.2013 are as follow:A) In August 1999, the IAF which is responsible for carrying out VVIP communication task, proposed the replacement of Mi-8 VIP helicopters due to severe operational constraints, such as, inability of Mi-8 to operate at night and in adverse weather, inability to operate safely at places in elevation beyond 2000 meters etc. IAF felt the need for the replacement of Mi-8 helicopters as they were completing their total technical life. a)

March 2002, A global RFP was issued to which 4 vendors responded having need for an altitude of 6000 meters. The Technical Evaluation Committee shortlisted 3 helicopters and accordingly flight evaluations were conducted.

4 b) After flight evaluation, EC-225 of M/s. Eurocopter, France was found suitable for acquisition. c) Since, EH-101 of M/s. AgustaWestland was not certified for an altitude of 6000 meters, it did not participate in the flight evaluation. The Russian helicopter Mi-172 could not comply with 7 mandatory Operational Requirements (ORs). d) On November 19, 2003 a meeting was taken by Principal Secretary to PM on this subject. In the meeting it was decided to make the mandatory requirement for operational altitude 4500 meters from 6000 meters. e)

A letter dated 22nd December, 2003 issued from the Principal Secretary to PM to the Air Chief, stating that it was unfortunate that neither PMO nor SPG was consulted while framing these mandatory requirements.

f)

Between March, 2005 to September, 2006 operational requirements were deliberated at length between IAF, NSA, SPG/PMO and MoD and the above indicated changes were incorporated. Number of helicopter was increased from 8 to 12.

g) On 3rd January, 2006. an AON for the procurement of 12 helicopters was accorded by the Defence Acquisition Council under ‘Buy’ category with 30 percent offsets. h) On 27th September, 2006 RFP was issued to 6 vendors. i)

Three vendors, namely M/s Sikorsky, USA (S-92 helicopter), M/s Agusta Westland, UK (EH-101 helicopter) and M/s. Rosoboron export, Russia (Mi-172 helicopter) responded to the RFP. As no Integrity Pact and Earnest Money Deposit

5 were received from M/s Rosoboron export, their TechnoCommercial offer was not accepted. j)

In 2008 the Field Evaluation Trial of M/s Agusta Westland was carried out in UK and trials of M/s Sikorsky were carried out in USA from 16 January 2008 to February 2008. The Field Evaluation Trial team submitted its report in April 2008 and recommended AW-101 helicopter of M/s Agusta Westland for induction into Service. SPG was also part of the Field Evaluation Trial team.

k) On 6th August 2008 Contract Negotiation Committee (CNC) was constituted who initiated its discussions with the vendor during 19 September 2008 and 21 January, 2009. While the CNC was progressing its discussions, Air HQ, recommended inclusion of Traffic Collision Avoidance System (TCAS-II) and Enhanced Ground Proximity Warning System (EGPWS) for all 12 helicopters and SPG/PMO recommended inclusion of Medevac System for 8 VVIP helicopters. These additional equipment were considered to be essential for safe and effective operation of the helicopter in VVIP transportation role. SPG also agreed to these requirements. The CNC, thereafter, recommended conclusion of the contract at a negotiated price of EURO 556.262 million. l)

On 18th January 2010 Cabinet Committee on Security (CCS) considered the proposal in its meeting held on 18 January 2010 and approved the proposal.

m) On 8 February, 2010 the Ministry of Defence concluded a contract for the supply of 12 AW-101 VVIP helicopter with M/s

6 AgustaWestland, UK and ministry of finance minister Pranav Mukherji did final above said deal. i) Article 22 of the contract deals with penalty for use of undue influence. This clause entitles the ‘Buyer’ to cancel the contract with the ‘Seller’ and recover from him the amount of any loss arising from such cancellation. Article 23 of the contract dealing with agents and agency commission requires the ‘Seller’ to confirm and declare that he has not engaged any individual or firm, whether Indian or foreign, whosoever, to intercede, facilitate or in any way to recommend to the Government of India or any of its functionaries, whether officially or unofficially, to award of the contract to the ‘Seller’ nor has any amount been paid, promised or intended to be paid to any such individual or firm in respect of any such intercession, facilitation or recommendation. This clause further entitles the ‘Buyer’ to consider

cancellation

of

the

contract

without

any

entitlement or compensation to the ‘Seller’ who shall be liable to refund all payments made by the ‘Buyer’ in terms of the contract along with interest. n)

It is pertinent to say herein that as per agreement dt. 2010, Indian Rotorcraft was responsible for the final assembly, completion and delivery of the AW-119s while Agusta had to manage global marketing and sales. Indian Rotorcraft Ltd, is a joint venture between Tata Sons and AgustaWestland and was set up to establish an assembly line for the AW-119 helicopters meant for both defence and civilian sectors in India and overseas. A year later in 2011, the GMR Group signed an

7 in-principle agreement with Indian Rotorcraft to locate its assembly and testing facility within the GMR aero-SEZ adjoining the Hyderabad airport,” The first aircraft was scheduled for delivery from the new Hyderabad facility in 2011. 6) The IAF has sought the AgustaWestland choppers as a replacement for its Mi-17 cargo helicopters that have been modified for VVIP deployment. The Comptroller and Auditor General had made an adverse comment, saying it was a waste of resources.

Other key acquisitions got shelved, the finance

ministry, then headed by Pranab Mukherjee, cleared the chopper deal. In fact, the deal was pushed through after the Special Protection Group, then headed by B V Wanchoo, insisted that the helicopters were urgently needed due to security implications. 7) On February 16, 2010 At a press conference, when asked why the VVIP helicopters got preference over other acquisitions, Defence Minister A K Antony said: "Not only the Air Force but the SPG was also involved. They told us that due to the security scenario, we should consider this proposal and the Finance Ministry also agreed to take their comments and it was cleared by the Cabinet Committee on Security." 8) The helicopters were to join India's VVIP aircraft fleet, which already has five Embraer 135 jets and three Boeing VVIP aircraft, in 2012. The deal was clicked with the help of politicians and others. Commission was distributed among the politicians. a) In February 2010, AgustaWestland won a Rs 3,546-crore contract for 12 AW101 helicopters three of the helicopters

8 have already been delivered to the Indian Air Force (IAF), the first of them in December 2010. 9)

That in the meanwhile Italian investigators has filed his charge sheet in the Naples court declaring that the middlemen had agreed for a 7.5% commission in the Rs3600 crore for 12 VVIP helicopters. a) On Tuesday 12th February 2013 in Italy upon investigation report Finmecannica CEO Giuseppe Orsi were arrested and replaced by Guarguaglini for bribe approx 51 million euro in helicopter deal, more than 362 crores. b) At page 1-2 named the Finmecannica ,CEO,other official of the company, three alleged middlemen (1) Guido Haschke, a Switzerland-based businessman , his partner Carlo Gerosa , London-based Christian Michel and former Air Chief Marshal, S.P. Tyagi. i) At page 3-6 disclosed payment about 21 million euros through inflated bills for bogus engineering contracts via Aeromatrix Chadigarh IT company. ii) Charge sheet says that Aeromatrix is the Indian firm linked to Italian middleman Guido Ralph Haschk. A prospectus of Emmar MGF states that Gautam Khaitan was appointed as a director of the company on September 25, 2009. Here is a piece of conversation between Haschke and his partner Carlo Gerosa, which was tapped by investigators in Italy and mentioned in the charge sheet of the case. (1) Gerosa says, “They (one of the three Indians mentioned in the chargesheet) just need to say. I take orders from there (India), but we can’t tell this openly to Gautam

9 Khaitan. He is our borderline. The orders of money laundering came from us, but he was doing the real job. We are a real criminal association/conspiracy”. (2) Haschke says, “Yes, I was thinking about it earlier. Because if Gautam fears that Aeromatrix might be involved, he already told me, you heard no? Praveen (chief officer of Aeromatrix) is already very nervous”. (3) Orsi in his statement clearly stated that “the sum of 100,000 euros was given in cash to the “Tyagi brothers” (JulieTyagi, Docsa Tyagi and Sandeep Tyagi) in order to

obtain

the

contract

for

12

AgustaWestland

helicopters. c) Charge sheet further speaks about Delhi-based businessman Sanjeev Kumar 'Julie' Tyagi is an old friend of Gerosa's. A consultant in the power sector, Julie has an office on New Delhi's Feroz Shah Road as well as a house in the posh Sainik Farms. 10)

In 2009 Haschke was director of Emmar –MGF founded by

Ved Prakash Gupta , who was Kaniska’s Grandfather

and

promoted by S.K.Singh an IFS officer considered closed to Rajiv Gandhi and served as Rajasthan Governor. i) The London-based consultant Michel allegedly got the lion's share of the Euro 51 million commission. Michel is known for his connections in the Congress party and access to the government—much like his father Wolfgang Richard Max Michel had when he operated in India in the 80s and 90s. Old timers recall Wolfgang, who died earlier this year, as a controversial businessman who worked extensively in

10 Indian government circles for several years. Christian's sister Caroline heads the literary agency Peters Fraser Dunlop and was recently listed in the top 500 of the 'Tatler List' that rates influential people in the UK. b) That Guido Haschke, a Switzerland-based businessman, has been operating in India for several years. He was allegedly one of the two agents used by AgustaWestland to swing the Indian contract. Haschke worked closely with the Agusta team in New Delhi and has in the past allegedly received contracts worth millions from Finmeccanica, the parent company of AgustaWestland,

for

various

consultancy

services

and

contracts in India. He had been detained by Swiss authorities on money laundering charges but is now out on bail. Haschke, along with his partner Carlo Gerosa, another Italian and an old India

hand,

own

Chandigarh-based

Aeromatrix,

an

engineering and IT outsourcing company that is being investigated for suspected money laundering. c) Delhi-based businessman Sanjeev Kumar 'Julie' Tyagi is an old friend of Gerosa's. A consultant in the power sector, Julie has an office on New Delhi's Feroz Shah Road as well as a house in the posh Sainik Farms. The well-connected Tyagi is known to move around in luxury cars and said to have major investments in real-estate. His older brother 'Jolly' Tyagi has dabbled in politics in the past. The duo are known to be close to leaders and functionaries in the BJP. Former Air Chief Marshal SP Tyagi is Julie's cousin. 11)

That earlier of 2011, Italian investigators began probing

allegations that AgustaWestland paid a commission of Euro 51

11 million (over Rs 350 crore) to Switzerland-based consultant Guido Ralph Haschke to facilitate the India deal. 12)

That Italy continues to probe the men and methods used to

allegedly launder money, the Agusta deal points to an elaborate network of agents, businessmen, government officials and even politicians in India who could be involved in swinging the deal. 13)

That in the preliminary inquiry report, that has been filed by

Italian investigators in a court in Naples, the names of several Indians have already surfaced. 14)

The investigation started in 2011 after an open succession

war between Francesco Guarguanglini, who was then heading Finmeccanica, the parent company of Agusta, and his successor, Giuseppe Orsi, who now heads the Italian company. Meanwhile, late last year, Silvio Berlusconi's coalition government, which had as coalition partners parties such as the far-right Lega Nord (now alleged to have received kickbacks to swing the deal in Italy), was replaced by one led by technocrat Mario Monti. 15)

That Mr. Lorenzo Borgogni, a former top employee of

Finmeccanica and an Orsi-baiter, was prompted by these said facts to blow the whistle on Agusta's deal with the Indian government. Borgogni told prosecutors in a detailed statement that kickbacks were paid by AgustaWestland for the Indian contract through the use of middlemen and that the total amount came up to Euro 51 millions. 16)

That Borgogni detailed how the money was paid through a

network of middlemen and consultants, with the main allegation being that at least Euro 10 million was funnelled back to Italy and

12 paid to the Lega Nord party in return for its support to Orsi's bid to become president of Finmeccanica. 17)

In his interrogation, which is part of the 568-page report by

Italian investigators, Borgogni says the company decided to divert funds for commissions, knowing how risky it is to hire agents for Indian deals. Borgogni says in the investigation report. a) "Paid mediation is forbidden in India. And this is very risky because if India comes to know, it can cancel the contract and blacklist Finmeccanica, as it happened earlier with a French company, I think. So the money comes out of Agusta and goes to Haschke and to Michel, from Michel to Orsi, from Orsi to Lega Nord (political party)," 18)

That with this as the starting point, Italian prosecutors began

an elaborate inquiry—involving planting of bugs, intercepting phone conversations, shadowing and tailing key suspects, scrutinising finances and recording secret audio and video clips— to establish if irregularities took place. 19)

The inquiry, which runs into hundreds of pages of evidence

ranging from taped conversations to seized papers and confessions of business partners and associates of the key players, brings out several facts that point to money laundering and corruption in connection with the VVIP deal. 20)

While facts continue to emerge in the case, the money trail

has allegedly led to two middlemen who managed to 'fix' the deal in India. a) One is Switzerland-based Guido Haschke, who was allegedly used by AgustaWestland to swing the Indian contract. Haschke and his business partner Carlo Gerosa, both Italian

13 nationals, are old India hands. They are partners in Aeromatrix,

a

Chandigarh-based

engineering

and

IT

outsourcing company that is also being investigated for suspected money laundering. Haschke and Gerosa have closely worked with the AgustaWestland team in New Delhi and have, in the past, received contracts worth millions from Finmeccanica for various consultancy services and contracts in India. 21)

A taped conversation between Haschke and Gerosa clearly

points to Haschke's knowledge that money was paid off in India and that illegal work was afoot. In the conversation, he worries about explaining his business in India to his wife. a) "She is vague. She's fine, then angry, then she is all nice and sweet, then angry again...Now I have to think about what I should tell her...Somehow I have to explain to her what the f*#^ I earn from India," he says. When Gerosa responds by saying he can explain that they are doing a project together, Haschke says, "At some point in time, she will want to know what we do together, given that we go to India together." 22)

In other recordings, besides talking about money being

funnelled into India and discussing their possible defence in Indian courts for laundering Euro 10-15 million, Haschke elaborates on how he has destroyed all evidence linking him to the Indian VVIP deal. a) "I cleaned every single piece of paper from my office. I completely cleaned the computer...Actually, you know what I did? I removed my old computer and now there is a new one where there is nothing. So even if they search for erased data, they will not find anything. Now I am deleting all emails which passed through Carlo's (Gerosa's) server in the office," Haschke says in a conversation with Gerosa.

14 23)

That for the Italian investigators, establishing the roles of

Haschke and Gerosa in the deal wasn't too difficult given their India business and the fact that Gerosa is an old friend of Indian businessman Sanjeev Kumar 'Julie' Tyagi. 24)

The Indian businessman, a known consultant in the power

sector, is well connected in the power circles of New Delhi and even the military establishment. Former Air Chief Marshal SP Tyagi, who was heading the Air Force when specifications were drawn up and tenders were floated for the VVIP helicopter deal in 2006, is a cousin of Julie Tyagi's. Investigations reveal that Julie Tyagi is one of the rings in this complex web of middlemen who allegedly influenced the deal. 25)

In a conversation recorded on March 1 between Haschke and

Gerosa, Julie Tyagi's name comes up when they discuss how important it is for them to ensure that their names don't leak. "The only one who has no risks is Julie, because we are those in the front," says Gerosa. 26)

The biggest fish in the pond so far is London-based Christian

Michel, a British national who has allegedly been paid Euro 30 million, the lion's share of the kickback that was meant to be distributed to those in the Indian and Italian establishments. Michel is a little-known but highly connected businessman who is said to have high-level political contacts in India and has won admirers for his easy access to top Indian politicians and members of the establishment. 27) According to the Italian investigation, he was a crucial part of the contract and was the one who allegedly pumped back Euro 10 million into Italy—money that was paid to Orsi and handed

15 over to the political parties. However, since Michel did not operate from Italy, the initial probe report does not record how he operated in the entire deal. 28)

There are several snatches of conversations and other

evidence that do point to his role in the deal, including a "two step approach" by AgustaWestland in which the commission was allegedly divided between Haschke and Michel. According to media reports in Italy on the probe, prosecutors have named Michel as "one of the two mediators" in the deal. The reports say that according to the line of investigation, AgustaWestland initially paid Haschke Euro 41 million as part of a contract for the Indian deal but this was increased by Euro 10 million when Michel came into the picture. 29) That so far, the Italian investigation has been limited to establishing that a) Illegal commissions were paid, b) money laundering took place in which funds were routed to India through Tunisia and Mauritius and c) Politicians and businessmen in Italy illegally benefited from the contract. 30)

The scope of the Italian probe will end at the point where the

alleged commission money reaches India. The probe will not go into who was paid the money in the Indian establishment or how the funds were worked around within the power circles of New Delhi. 31)

That an Indian investigation, if any, will have to start from this

point. So far, the government hasn't been fast enough to respond to revelations that threaten to open a can of worms for India's defence and political circles.

16 32)

The defense ministry did request the Italian government for

information on their probe, but it is a futile exercise since the prosecutors undertaking the investigation are unlikely to divulge information to a foreign nation's defence or external affairs ministry. 33)

That action has been taken in Italy on the VVIP helicopter

scam. The CEO of the company has been arrested. But no action has been taken here. The country which would have benefited from the deal has taken action while the country which lost money has not done anything. 34)

That on November ,10 2012 defence Minister Mr. Antony said

the government was making "serious and sincere" efforts to find out the truth in the allegations leveled in the media reports. a) "We have already written to the Italian government through the MEA about the media reports to get the details whether any middlemen are involved or any Indian entities are involved as this is not permitted in our laws," he said. b) The Minister said the Italian Ambassador to India has also been conveyed the "seriousness" India takes the issue and provide details at the earliest. c) "If there is any iota of truth in media reports, if there is any foul play or mischief we will take strong action," Antony said. d) The allegations surfaced recently when media reports suggested that two people have been arrested in Switzerland for allegedly paying kickbacks to secure the 560 million Euro Indian chopper deal for 12 AW-101 helicopters. e) Asked if a CBI probe would be ordered into these allegations, he said, "First let us get facts and details from the UK and Italy and then we can see what can be done." True copy of Indian Express News report dt.24.2.12, 25.10.12, and press not of ministry of defence dt.

17 14.2.2013 are being filed as Annexure P-1 (26-30) , P-2 (31), P-3 (32) , P-4 (33-36) 35)

That on December 12, 2012 in Rajya Sabha

government

gave a reply to BJP’s MP upon VVIP helicopter scam. “ In the reply, Defence Minister A K Antony had acknowledged that it has come to the notice of Ministry of

Defence

through

several

reports

that

Italian

prosecutors had begun a probe into alleged unethical dealings by M/s Finmeccanica. He had then informed the House that the probe into the matter has been widened to include the ibid contract.” “Mr. Antony had further said that upon his ministries request, the External Affairs Ministry has taken up the matter with the Italian and UK governments to get further details.” “However, in the absence of any specific information, government has not started any formal probe in this regard by Indian agencies,” Mr. Antony had said. 36)

That a generation ago, the Bofors scandal broke because of a

revelation by the Swedish National Radio about kickbacks paid to the family associates of Rajiv Gandhi. Investigators in India effectively tried their damnedest to torpedo that investigation at every stage, but because there was a Swedish whistleblower who had an interest in getting the truth out (to target his own government’s culpability in the deal), the skeletons just kept tumbling out. 37)

That today, the investigation in Italy began with allegations

that Italian politicians had been paid bribes in the Agusta Westland’s deals – not just in India but elsewhere. India came on the radar only peripherally. But now that the facts are out, and a former Air Chief stands accused of having accepted bribes, the

18 least that the government owes is an honest investigation into the scandal, which has the potential to grow bigger. 38)

That Petitioner is very much in apprehension that above said

scenario will be manipulated with report by the controlled CBI in the same manner what has already been done in Bofors. Hence present Petition for to appoint a special investigation team (SIT) couple with a judicial probe instead of CBI investigation under respondent’s control. 39)

That on 7.4.2016 Italian court passed its final judgment

declaring

the role of Sonia Gandhi, Manmohan Singh in

AgustaWestland Chopper Deal. The 225-page judgment also reveals that Sonia’s Political Secretary accepted the commission of €15 to 16 million ($17 – 18 million) from the middlemen. The judgment of the appeal court in Milan convicting AgustaWestland chopper company chief Giuseppe Orsi described how the firm paid bribes to top Congress leaders in India and lobbied with them to bag the Rs 3600-crore ($451 million) deal. Reproducing the handwritten notes seized from middlemen, the judgment says that the political leaders accepted the commission of 15 to 16 million Euros (around Rs.120 to 125 crores) in the controversial purchase of 12 VVIP chopper deal. It also names the role of Sonia Gandhi’s trusted aide and AICC General Secretary Oscar Fernandes and the then National Security Advisor MK Narayanan (Page 193). a) The 225-page judgment of the appeal court in Milan also annexed several documents, handwritten notes exchanged between the middlemen on how the total commission of Euro 30 million between India’s political leaders, bureaucracy, and Air Force officials.

19 b) sonia Gandhi’s name (signora GANDHI) is mentioned four times, two times each on page 193 and 204 of the judgment, convicting Orsi and other officials of Finmeccanica, the firm which manufactures AgustaWestland VVIP Choppers. Orsi and other officials were convicted for four and a half years. c) A letter dated March 15, 2008, seized by investigators shows the main middleman Christian Michel, who is still a fugitive, writing to Peter Hulet, then India region sales and liaison head of the helicopter company. The letter states that Sonia is the main driving force behind this deal and she will no longer fly in the existing MI- 8 choppers. The letter is quoted verbatim in the judgment. Details of lobbying and corruption of Congress leadership, writing to the then British High Commissioner in India that he should target top Congress leadership for clinching the deal are clearly explained. d) Peter, since Mrs. Gandhi is the driving force behind VIP will no longer fly in the MI-8. Mrs. Gandhi and her closest advisers are the people who the British ambassador should target,” said the letter of Michel seized by the probe team. This letter was seized from the home of arrested middleman Guido Haschke in later early 2013. e) The judgment also says Haschke had identified all the Congress leaders including Sonia Gandhi and Ahmed Patel on the court when their photos were shown to him during the trial by the Italian prosecution. f) The Page 9 of the Judgment also affixed the handwritten note of Michel exchanged to Haschke on how to distribute the total commission of 30 Million Euro. Air Force officials were allotted six Million Euro and Bureaucracy including Defence Ministry officials to be allotted 8.4 Million Euro. The note gives split up to several top bureaucrats like DG Acquisition, Defence Secretary (DS), Joint Secretary(JS) etc. For more, see the interactive Pie chart below: Details of how 30 million Euros was to bedistributedPoliticalAir ForceBureaucracy28%20%52% Answer

Result

20 Answer

Result

Political

15.6

Air Force

6

Bureaucracy 8.4 g) The note says Political leaders were to be allotted 15 to 16 Million Euro and the name shown to political level was noted as AP. Only one political leader to whom the money handed over is shown as AP, which refers to Ahmed Patel as confirmed on page 204 (see picture above). The note also shows on sharing the commission with ‘Family’ and the Judgment says it meant the family of the then Air Force Chief S P Tyagi. h) Page Nos. 163 and 164 names Manmohan Singh and details that Orsi used Italian leadership and diplomats to contact the then Prime Minister to scuttle the probe by non-cooperation from Indian government side. In Page 163, the Judgment produces a hand-written note by Orsi from jail in July 2013 asking his people to contact then Italian Prime Minister Monti or Ambassador Terracciano to call Manmohan Singh. i) “Call Monti or Amb. Terracciano in my name to ask him to call the PM Singh,” said the note seized from the prison cell of Orsi. The Judgment in several areas blames the noncooperation from Indian authorities including Defence Ministry and other probe agencies in 2013. 40)

Excerpt of translation of Pages 162-165 of the judgment are

as follow:i) The documents also show a wide range of “surrounding” circumstances that outline a more widespread and grave dimension of the case (both from the point of view of the number of the people involved and in terms of financial data than it appears from the description given in Chapter A) which is unlikely to be clarified, due to the limits that the investigations have met in the present case, particularly

21 because of the lack of responses from countries involved in the case, to the requests of assistance placed by the Italian Judicial Authority: this showing a substantial disregard to arrive at a full explanation of the facts, effectively demonstrated by the procedural behavior of the Indian Ministry of Defense (which brought a civil action in the criminal proceedings in the first instance of this judgment), already effectively stigmatized in the appealed judgment. ii) This attitude of the Indian authorities with regard to this trial clearly brings to mind an episode that occurred to ORSI during the preliminary investigation, and falls within the context of the previously mentioned initiatives of the defendants intended to disperse and tamper the evidence, and to create elements which are favorable and coherent with the pre-agreed line of defense. In the period in which the above (ORSI) was jailed at the prison of Busto Arsizio, the custodial agents found in his cell, among his papers, a handwritten note (a copy of which was produced in the proceedings) which reads: (1) “Call Monti or amb. TERRACCIANO in my name to ask him to call the P.M. Singh” (2) Given the date on which the document was found (03/07/13), the information contained in the text, the context in which the protagonists of this story act and move, and other indications which appear from the documents, it is possible to identify the people mentioned (in addition to the lawyer of the defendant): (3) “Monti”: it is undoubtedly the former Prime Minister Mario MONTI, at that time still in office; (4) “amb . TERRACCIANO”: can be identified as Pasquale TERRACCIANO, previously ambassador in Madrid, and, at the time, Diplomatic Advisor to the Prime Minister; (5) “P.M. Singh”: the initials before the surname unequivocally lead to Manmohan SINGH, Prime Minister in India from 2004 to 2014.

22 iii) The memories written by the defense “skip” to talk about such activities. They dedicate them only a few lines of the extensive defensive memories of Spagnolini dated 03/24/16: (1) “This is the lawful alternative explanation that takes into consideration also Haschke’s wish … to get rid of some papers which instead have been found at Agusta and that pertained to consulting activities provided by GORDIAN and which could be mixed with the contract of engineering works”. (2) In addition to the attempt of the defense to circumscribe Haschke’s behaviour to the hiding of “some papers”, the defense here repeats the same reductive interpretative line already seen for the dialogue between Haschke and GEROSA on the corruption and omits to quote any reference to the prolonged tampering activities of the evidence base directly attributable to the accused, and any reference to the agreements on the defensive line and on the representation of the incident to be provided to the Judicial Autority in order to give a semblance of legality to their relations: this, given the absence of any explanation from interested parties or contradicting versions, inevitably results in a further argument in favor of the prosecution. (3) In brief, from the analyzed conversations we can get unequivocal indications about: (a) The corruption of an Indian public officer, identified as the cousin of the Tyagi brothers: in this regard, the explicit content of the dialogue is sufficient to establish the “reasonable belief that corruption took place” (recalling GEROSA’s own words); (b) The involvement of different people in the task, including

AGUSTAWESTLAND,

ORSI,

Bruno

(SPAGNOLINI), Gautam (KHAITAN), Juli TYAGI; (c) the instrumental connection between the corruption and the Indian contract

23 (d) the money used for this purpose, the amounts transferred to accounts in Mauritius Islands, the cash payments in favor of the Tyagi “family” and other Indian people, still in progress at that time; (e) the means and tricks used for the creation of the illicit funding. (f) About this, ORSI and his defenders evoke a conspiracy

hatched

by

the

“old

guard”

of

FINMECCANICA against him, as the leader of a line of radical renovation: hypothesis that cannot be accepted, due to the absence of reliable evidence. True copy of the News report of pgurus.com dated 26.4.2016 is being filed as Annexure P-5 ( 37-42) 41)

That respondent had canceled impugned contract deal dt. Feb

2010 with AgustaWestland , Italy for the supply of 12 AW101 helicopters. petitioner is looking proper action and additional guideline towards the facts being as the most dangerous for the security of the country. However the said company has been registered/allowed to supply various supply to the government and respondent has restored their name for supply a valid contractors. 42)

That till date due to political corruption CBI did nothing and

kept silent and diluted entire criminal offence which is a serious criminal act. 43)

That Petitioner had filed W.P.(Crl) no.35 of 2013 but due to

unknown reason it was dismissed and no investigation and F.I.R. against the persons as named above were registered /conducted till date. Within the Italian court judgment it is clear that above named persons were involved and are liable for corruption as well

24 as for the recovery of the bribe amount from them in the interest of justice. 44)

That the petition is being filed on the following amongst other GROUNDS

a) Because within the Italian court judgment name of the above persons has been decided as accused who have taken bribed and are involved in the helicopter deal therefore an F.I.R. and further criminal action must be initiated against them but due to political reason respondent will not do the same and matter will be thrown in the dustbin in the coming period of time. b) Because court judgment is a decided evidence for criminal offence committed by the named accused persons. c) Because despite having information since 2011 respondent did not register even an FIR against the said Indian citizens involved in having kickback in helicopter bribe till day. Even in press conference Defense minister did not say to lodge an FIR and to arrest named Indian accused person. d) Because there are series of corruption against UPA government. Coal scam scandal is still pending before the Hon’ble supreme court in W.P. (crl) 120 of 2012 and instead getting true and fair investigation respondent always have attitude to dilute all charges and true facts to eliminate the corruption. e) Because at present CBI is in under control of Prime minister office which is known to be controlled by Italy born Congress president to work as per their wish. Like

Bofors link is also

related to the Italy and local Indian having hand with power controlled politicians and CBI will not put true evidence, even

25 will not arrest alleged accused person what had not been done till today despite name has already been exposed by the Italy investigator. f) Because there is very much likely of apprehension that above said scenario will be manipulated with report by the respondent’s controlled CBI in the same manner what has already been done in Bofors and other cases. 45) That Petitioner has not filed any Petition before this Hon’ble Supreme court or in any High court ( except mentioned as above) for the relief prayed herein. PRAYER Therefore within the aforesaid facts and circumstances in the interest of citizen of India for justice, equity and fair play this Hon’ble court 1. Be pleased to issue direction to the respondent no.2 to register F.I.R. against the persons as declared in the Italian court judgment at Milan 2. Be further pleased to appoint a special investigation team (SIT) or CVC investigation under supervision by this Hon’ble Supreme Court couple with further direction to file their report before this Hon’ble court for prosecution of the responsible persons despite their post & rank in accordance of law. AND 3. Allow cost to the Petitioner. AND 4. Pass such other order or further orders, as this Hon’ble court may deem fit and proper under the facts and circumstances of the case. AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS ARE DUTY BOUND SHALL EVER PRAYS. Drawn & settled by:

Filed by: Manohar Lal Sharma Advocate

Manohar Lal Sharma Advocate Drawn on : 26.04.2016 Filed on :

28.04.2016

Petitioner-in-person

26

IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION Writ Petition (Civil.) no.

OF 2016

IN THE MATTER OF Manohar Lal Sharma Advocate

Petitioner

Versus Union of India and Anr

Respondents AFFIDAVIT

I, Manohar Lal Sharma S/O Late Shri P.L. Sharma, practicing advocate presently practicing in Supreme Court at S.C.B. Lib. No.-1 Supreme Court of India ,New Delhi, Petitioner

do

hereby solemnly affirm, state and declares as under 1. That I am the petitioner in the above writ petition and as such I am aware of the facts of this case and I am competent to swear this affidavit. 2. That contents of this accompanied writ & contents of the date of events ( page B-D) writ petition (para 1- 45) and (pages 124) and contents of the filed applications are true and correct to the best of my knowledge and belief. 3. That filed copy of the annexure P-1 to P-5 are true and correct to their original. 4. That petitioner have no personal interest, gain motive or oblique reasons, any civil /criminal/revenue litigation involving directly/indirectly to the petitioner in filing the present public interest litigation. Deponent Verification I , the above named deponent do hereby declare and verify on oath that the contents of this affidavit are true to my knowledge ,nothing material has been concealed therefrom and no part of it is false. Verified at New Delhi on this 28.04.2016 DEPONENT

27

INDEX 1. LISTING PROFROMA

A-A1

2. DATE OF EVENTS

B

3. Writ Petition with affidavit

1-25

1. Annexure P-1 True copy of Press note dt. 14.2.2013 issued by 26-30 the Ministry of defense 31

2. Annexure P-2 True copy of The Indian Express News report dt.24 Feb 2012

32 3. Annexure P-3 True copy of India.tv news report dt. 25.10.2012 33-36

4. Annexure P-4 True copy of The Indian Express News report dt.10 Nov, 2012

37-42

5. Annexure P-5 True copy True copy of the News report of pgurus.com dated 26.4.2016 6. CRL. M.P. No.

OF 2016

Application for Permission to appear and argue in person

43-44

28 IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION Writ Petition (Crl) no.

OF 2016

IN THE MATTER OF Manohar Lal Sharma Advocate

Petitioner

Versus U.O.I. & Another

Respondents

WITH CRL. M.P. No.

OF 2016

Application for Permission to appear and argue in person

WITH PAPER BOOK FOR INDEX PLEASE SEE INSIDE PETITIONER –IN-PERSON: Manohar Lal Sharma Advocate Mob: 9810279220