Despite A-G advice, CBI moves SC to re-open Bofors case

Bofors case: The CBI attributed the delay in filing the SLP against the 2005 High Court order to the then (UPA) government's refusal to grant it permission to approach the court.

Days after the Attorney General advised the government against filing a special leave petition in a case related to the Bofors scandal, the CBI Friday moved the Supreme Court, challenging the May 31, 2005 verdict of the Delhi High Court which gave a clean chit to the Hinduja brothers.

Former Prime Minister Rajiv Gandhi too had been named an accused but was exonerated in 2004 in the alleged payoffs case.

The CBI attributed the delay in filing the SLP against the 2005 High Court order to the then (UPA) government’s refusal to grant it permission to approach the court.

Last September, The Indian Express reported that the CBI, in a note to the Central Agency Section of the Department of Legal Affairs (Ministry of Law and Justice) on June 22, 2017, said it had not challenged Justice R S Sodhi’s 2005 order since it had not been granted permission from the “competent authority”.

In his advice to the government last month, Attorney General K K Venugopal said the CBI should not file a SLP as it was likely to be dismissed on grounds of delay and “could well prejudice its stand even as a respondent in the appeals already pending”.

He suggested that the probe agency present its case as a respondent in the petition already filed by BJP member and advocate Ajay Agarwal.

But the CBI, in its SLP, sought the quashing of the 2005 order that set free the Hinduja brothers — G P Hinduja, Prakash Hinduja and Srichand Hinduja — and quashed the trial court order framing charges against Swedish arms manufacturing company AB Bofors.

In the SLP, the CBI referred to an interview on Republic TV of private detective Michael Hershman who claimed he was in possession of material to show payment of bribes in the Bofors deal. Describing this as a “most significant development”, the CBI said his statements “go to the very root of the matter”.

The probe agency said it had decided to conduct further investigation in the matter and was filing the SLP to set aside the High Court order since it could hamper further investigation.

On the delay, the CBI said though it “was of the view that the impugned order is legally unsustainable and should be challenged before this Hon’ble Court, ultimately a decision was taken not to challenge the impugned order on the basis of the views expressed by the Government of India and the law officers who dealt with the matter at that stage, as the Government denied permission to the CBI to approach this Hon’ble Court.”

But “the matter has been re-examined now” in the wake of Hershman’s interview, the CBI said. “The present is a fit case for applying the settled principle of criminal jurisprudence that ‘a crime never dies’.”

In his advice to the government, Attorney General Venugopal had said that “record does not reveal any significant events or special circumstances which could be said to constitute sufficient cause for not approaching the Supreme Court within the 90 days permitted by law, or at any time thereafter within the last so many years.

It is worth noting that the present government has been in position for more than three years now. In the circumstances, the long delay in approaching the court will be difficult to satisfactorily explain to the court”.

The scandal broke out a year after India and Bofors signed a Rs 1,437-crore deal on March 24, 1986 for supply of 400 155-mm howitzers to the Indian Army. On April 16, 1987, Swedish Radio claimed that the company had paid bribes to top Indian politicians and defence personnel.

On January 22, 1990, the CBI registered an FIR for alleged offences of criminal conspiracy, cheating and forgery under the Indian Penal Code and sections of the Prevention of Corruption Act against Martin Ardbo, the then president of AB Bofors, alleged middleman Win Chadha and the Hinduja brothers.

The CBI alleged that certain public servants and private persons in India and abroad had entered into a criminal conspiracy between 1982 and 1987 in pursuance of which the offences of bribery, corruption, cheating and forgery were committed.

The first chargesheet in the case was filed on October 22, 1999 against Chadha, Italian businessman Ottavio Quattrocchi, then Defence Secretary S K Bhatnagar, Ardbo and Bofors. A supplementary chargesheet was filed against the Hinduja brothers on October 9, 2000.

In February 2004, Justice J D Kapoor of Delhi High Court exonerated Rajiv Gandhi in the case but upheld the framing of charges of forgery against AB Bofors.

On March 4, 2011, a special CBI court in Delhi discharged Quattrocchi from the case, saying the country could not afford to spend hard-earned money on his extradition bids which had already cost Rs 250 crore. Quattrocchi died on July 13, 2013. Bhatnagar, Chadha and Ardbo too passed away.

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