A charge-sheet quashed

ON June 10, a single bench of the Delhi High Court quashed the Central Bureau of Investigation's (CBI) charge-sheet filed against the Hinduja brothers in the Bofors pay-offs case. The judgment, besides throwing back the Bofors case to its investigative stage, holds far-reaching implications for the functioning ways of the CBI.

Delivering the judgment, Justice R.S. Sodhi gave a stringent interpretation to the supervisory role of the Central Vigilance Commission (CVC) over the CBI. The High Court quashed the charge-sheet on technical grounds stating that the CBI had not obtained the consent of the CVC before filing the charge-sheet. Till date the CBI used to keep the CVC informed on cases pertaining to public servants. With the Delhi High Court judgment, the CBI will now have to involve the CVC in all the cases, at all stages.

What has now become a point of debate is the interpretation given by the High Court to the Vineet Narain vs Union of India case, 1998 (1) SCC 226. In its December 18, 1997, verdict on the case, the Supreme Court said: "The CVC shall be responsible for the efficient functioning of the CBI. While government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed and their progress. The CVC shall review the progress of all cases which are pending with the competent authorities, specially those in which sanction has been delayed or refused."

Justice Sodhi said that there was no ambiguity in the judgment. "The directions issued are for strict compliance and must operate till such time as they are replaced by suitable legislation. Since so far this has not happened, the directions given are a law." The court further said that the CVC was responsible for the effective functioning of the CBI. It asked the CVC to review all the material placed before it by the CBI and ensure that half-baked and incomplete charge-sheets were not filed. The court said: "In the present case, the CBI on its own showing has not placed before the CVC the results of the investigation and has bypassed it by filing a charge-sheet." The court gave permission to the CBI to file a fresh charge-sheet, if the CVC advises it to do so, after following the procedure laid down by the Supreme Court in the Vineet Narain case.

CRITICS of the judgment wondered whether the court was correct in interpreting the supervisory role of the CVC. They maintain that the Vineet Narain judgment does not encourage the CVC to impose sanctions on the working of the CBI. Former Additional Solicitor-General Abhishek M. Singhvi said: "The Delhi High Court judgment is debatable and questionable. The Vineet Narain judgment does not mention prior sanctions or approval from the CVC. Moreover, the Hindujas are not public servants, whose appointing authority was the CVC. Clearly, the last word has yet to be said by the Supreme Court for further interpretation of the Vineet Narain case."

Critics also point out that the CVC is yet to be granted statutory status. They refer to the resolution passed by the Central government on April 4, 1999, which makes it clear that the CVC is not mandated to give prior approval to the CBI for registering each case. The CBI or any other police agency is governed by the provisions of the Criminal Procedure Code. Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act, 1988, say that sanction for the prosecution of a public servant requires the approval of the appointing authority which, in turn, should consult the CVC. The CVC is empowered to sanction an inquiry into any complaint of corruption or abuse of authority against any officer belonging to the Group A service of the Central government, its corporations, government companies, societies and local authorities owned or controlled by the Central government.

The CBI has decided to approach the Supreme Court against the High Court judgment. Its spokesperson, S.M. Khan, said: "We are examining the judgment of the High Court, after which we will move a special leave petition before the Supreme Court against it." The CBI is expected to approach the apex court with a plea that sanctions by the CVC are required only when prosecution is launched against a public servant. It is expected to contend that when prosecuting a private person or a body, the CBI Director and his legal advisers are competent to decide whether or not to press charges. The CBI is expected to plead that the Vineet Narain judgment has been wrongly interpreted and the CVC is only expected to supervise the functioning of the CBI and is not required to give it any sanction.

CBI officials point out that at present there exists a mechanism where the CBI Director and the Central Vigilance Commissioner hold monthly review meetings to look into important cases registered by the CBI. At these meetings, the CBI briefs the CVC on the overall progress of important cases and the charge-sheets and closure reports filed by it. In its petition, the CBI will outline these procedures.

For the CBI, proving the involvement of the Hindujas in the Bofors pay-offs case is crucial. Two of the other accused, Win Chaddha and S.K. Bhatnagar, are dead and the CBI is still fighting a legal battle in Malaysia for the extradition of one of the main accused, Ottavio Quattrocchi.

A breakthrough for the CBI came when the three Hinduja brothers were ordered to India in early 2001. Srichand, Gopichand and Prakash Hinduja were charge-sheeted on October 9, 2000, a decade after the CBI registered the case against them. The charge-sheet alleges that the Hindujas received 81 million Swedish kroners ($8 million) as middlemen in the Bofors gun deal. It asserts that politicians and bureaucrats were bribed to get Bofors, the Swedish arms manufacturer, the Rs.1,437-crore arms contract, and in turn Bofors paid the equivalent of about Rs.20 crores into coded Swiss accounts linked to the Hindujas.

A reprieve for the Hindujas came in September 2001 when the Supreme Court allowed the three brothers to leave the country on a rotational basis, one of them remaining in India at a given time (Frontline, June 8, 2001). The case continued in a special court under a Supreme Court directive for its speedy disposal. An interim victory for the Hindujas came on May 14 when the Delhi High Court stayed all proceedings until May 28 in a petition challenging the legality of the charge-sheets. And, now the High Court's quashing of the proceedings against the Hindujas has practically frozen the Bofors case for the time being.

TWENTY-NINE eminent persons from 22 countries, all Goodwill Ambassadors of the United Nations Educational, Scientific and Cultural Organisation (UNESCO), have appealed to India and Pakistan "to heed the advice of international community and resolve their differences diplomatically." In a joint appeal, they call on the two governments to do this "in a spirit of the sub-continent's traditional common culture of non-violence and tolerance."

The appeal is sponsored by the South Asia Foundation, founded by Madanjeet Singh, who is a UNESCO Goodwill Ambassador.

The Goodwill Ambassadors are leading figures from different walks of life, who, by using their talent and international prestige, promote UNESCO's ideals of peace, justice, solidarity and mutual understanding in education, science and culture.

The joint appeal says that they are "deeply concerned about the dangerously escalating tension," because an outbreak of war between the two countries "shall inevitably end up in nuclear confrontation, now that both the countries are armed with weapons of mass destruction." The appeal cautions: "The catastrophic consequences of nuclear war and the horrible death and destruction it would surely cause shall further aggravate the suffering of the poverty-stricken people in South Asia."

"It is only by respecting the sentiments of their people who are largely against terrorism and fratricidal war that the responsible leaders of India and Pakistan could possibly fulfil their mandate of guiding the deprived masses in South Asia towards peace and prosperity," the appeal says.

The signatories to the joint appeal include Nobel laureates, music maestros, industrialists, artists and social activists.

Nigerian novelist Wole Soyinka, who won the Nobel Prize for Literature in 1986, Guatemala's Rigoberta Menchu Tum, who was awarded the Nobel Peace in 1992, music maestros Marin Constantin of Romania, Jose Antonio Abreu (piano, Venezuela), Miguel-Angel Estrella (piano, Argentina), Ivry Gitlis (violin, Israel) and Jean Michel Jarre (electro-acoustics, France), Cuban ballerina and choreographer Alicia Alonso, French film star Claudia Cardinale, Spanish opera singer Montserrat Caballe, football legend Edson Pele of Brazil, Princess Firyal of Jordan and former President of Iceland Vigdis Finnbogadottir, French astronaut Patrick Baudry and Spanish navigator and explorer Kitin Munoz, besides Madanjeet Singh (India), are among those who have signed the appeal.

The other Goodwill Ambassadors who have signed the peace appeal are: Pierre Berge (President, Yves St. Laurent, France), Pierre Cardin (fashion designer, France), Dr. Cheick Modibo Diarra (African astrophysicist, USA), Bahia Hariri (Member of Parliament, Lebanon), Ikuo Hirayama (traditional painter, Japan), Omer Zulfu Livaneli (journalist and musician, Turkey), Ute-Henriette Ohoven (patron of art, Germany), Kim Phuc (a famous survivor of the Vietnam war, Canada), Susana Rinaldi (tango singer, Argentina), Sheikh Ghassan Shaker (international entrepreneur, Saudi Arabia); Giancarlo Elia Valori (President, Industrialists Union, Italy), Marianna Vardinoyannis (President, Child and Family Foundation, Greece) and Julio Werthein (banker and patron of art, Argentina).