Quattrocchi trail

Ottavio Quattrocchi leaves the Sessions Court in Kuala Lumpur in 2002. The court rejected India's plea for the extradition of the Italian businessman.-JIMIN LAI/AFP

Mystery surrounds the government's efforts to get Ottavio Quattrocchi, a key accused in the Bofors payoff case, extradited from Argentina.

A RED Corner Notice is issued by the International Police Organisation (Interpol) at the request of a country's law enforcement department. It is an arrest warrant circulated worldwide with a request that the wanted person be arrested with a view to extraditing that person.

When the arrest of Ottavio Quattrocchi, an Italian businessman and a key accused in the Bofors payoff case, was held in Argentina on February 6 on the basis of a Red Corner Notice issued by the Interpol on February 17, 1997, was announced, it led to intense speculation on why and how the Government of India suppressed the news for 17 days, although it was informed of the detention quite early through diplomatic channels. He was detained at the Iguazu International Airport in Missiones.

The United Progressive Alliance (UPA) government had no convincing answer to its critics, who alleged that the government concealed the information to avoid the issue being used against it in the ongoing Assembly election campaign in Punjab, Uttarakhand and Manipur, and that it was not keen to initiate extradition proceedings in time. It was also alleged that the government concealed the news of Quattrocchi's detention even from the Supreme Court, when it heard a related public interest litigation (PIL) matter on the Bofors case on February 12.

Although the government subsequently sought to overcome the embarrassment caused by the inexplicable delay, by submitting the relevant papers to the Argentinian government in the extradition proceedings within the stipulated 30-day period, the chances of his extradition look remote. This is because an earlier attempt by the Indian government to get him extradited from Malaysia in 2002, proved abortive. Quattrocchi has been granted conditional bail in Argentina after a court impounded his passport and ordered him not to leave the country.

As the proceedings progress in Argentina, the role of the UPA government and the Central Bureau of Investigation (CBI) will come under scrutiny for any deliberate lapses on their part, as the fugitive is alleged to have links with UPA chairperson Sonia Gandhi.

It will, therefore, be instructive to look at why the extradition proceedings in Malaysia failed though the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government was in power at the Centre then, and at the chances of his extradition from Argentina now.

The case can be traced to the contract entered into between the Government of India and A.B. Bofors in Sweden on March 24, 1986, for the supply of 410 field howitzers, ammunition and other accessories as part of the 155mm gun system at a total cost of Rs.1,437.72 crore. On May 2, 1986, advance payment equivalent to 20 per cent of the contract value was made to the Bofors company by the government. On April 16, 1987, Swedish radio broadcast a story that Bofors had managed to obtain the contract from the Indian government after paying large sums as bribes. The internal Bofors documents, seized by the Swedish police, obtained by Indian journalistic investigation in 1988-89 and fully authenticated in the CBI investigation, made it clear that the payoffs made by Bofors were directly contingent on winning the contract.

The CBI submitted its charge-sheet in the case on October 22, 1999, naming as accused former Defence Secretary S.K. Bhatnagar; former Bofors agent W.N. "Win" Chadha; Ottavio Quattrochhi; president of Bofors company at the time of signing the contract Martin Ardbo; and A.B. Bofors, Sweden. On October 9, 2000, the CBI submitted a supplementary charge-sheet naming G.P. Hinduja, Prakash Hinduja and Srichand Hinduja, known as the "Hinduja brothers" and Rajiv Gandhi as accused.

Rajiv Gandhi was accused of complicity in the abuse of power and position in the grant of pecuniary favours to a number of Bofors middlemen. He was not prosecuted as he was no more at the time of the filing of the charge-sheet. In February 2004, Justice J.D. Kapoor of the Delhi High Court discharged the Hinduja brothers from the bribery charge, but held them, along with Quattrochhi and "Win" Chadha, liable for prosecution on other charges such as cheating and conspiracy to cause wrongful loss to the government.

On May 31, 2005, Justice R.S. Sodhi of the Delhi High Court quashed the proceedings in the trial court against the Hinduja brothers. With Bhatnagar and "Win" Chadha passing away, there was a huge question mark on the fate of the remaining accused as the CBI did not appeal against this judgment in the Supreme Court. Ardbo passed away on July 15, 2004.

In the PIL case (Ajay K. Agrawal vs Union of India) before the Supreme Court, the petitioner-lawyer, Ajay K. Agrawal, challenged the action of Additional Solicitor-General B. Dutta on December 22, 2005, informing the United Kingdom's Crown Prosecution Service that there was no case against Quattrocchi for freezing two accounts holding three million euros and $1 million respectively. The accounts were frozen following an earlier request from the CBI, which said these accounts contained the Bofors payoff money. Dutta's action led to defreezing of the accounts on January 11, 2006, and withdrawal of the amount by Quattrocchi on January 16, 2006, even though the Supreme Court on the same day had directed the CBI to ensure that the money was not withdrawn.

The details of how the extradition proceedings in Malaysia caused a setback to the case are now available in the CBI's counter-affidavit filed in the Supreme Court in this case. The Red Corner Notice was issued against Quattrocchi in 1997, even before the charge-sheet was filed. Since it was not possible to secure his presence, his trial was separated from that of the other accused, and merged with the trial of the other fugitive, Martin Ardbo, by the trial court in May 2001. In order to facilitate progress of this case against the two fugitives, the CBI sought the extradition of Quattrocchi from Malaysia, where he was residing since he left India in 1993.

The Sessions Court in Kuala Lumpur, while dismissing the extradition case, came to the conclusion that there was an ambiguity as far as the offences were concerned. It was held that under both Malaysian law and Indian law, conspiracy and cheating were two separate offences, but when they were read together they gave rise to duplicity of offences resulting in ambiguity. As a result, the court concluded that there was no clear indication of the description of the offence that was committed. Thus it was held by the court that it was not possible for it to determine whether the offence could be regarded as an `extradition offence' for the purpose of Section 6 of the Malaysian Extradition statute.

The Malaysian High Court, hearing the CBI's appeal against the Sessions Court's verdict, held that a fugitive criminal was one who had been accused or convicted, and that the accusation or conviction must be in respect of an extradition offence. "Mere suspicion that an individual has committed offences is insufficient to place him in the category of `accused person'," it held, and added that the identification of the corruption offence alleged to have been committed by Quattrocchi in India was open to doubt. The court observed that the only offence with which he was charged was cheating. It observed:

"The thrust of this offence is the receipt of money by the respondent (Q) following the appointment of A.E. Services Limited of the United Kingdom at his behest as the consultants of Bofors since the appointment of agents was prohibited. However, it must be observed that paragraph 13 of the "charge sheet" of the Indian Authorities refers to the prohibition as `the present Government did not approve of the appointment of Indian agent acting for foreign suppliers'. These facts cannot therefore be termed or treated as particulars for the offence of cheating from the document made available."

Subsequently, when India appealed against the verdict in the Malaysian Court of Appeal, it was held by that court that a right of appeal did not lie from the Sessions Court to the High Court in an extradition proceeding. The Federal Court of Malaysia also dismissed the appeal on March 31, 2004.

In this context, the progress of the extradition proceedings in Argentina will be keenly watched. It is not clear if the GoI and the CBI have learnt the right lessons from the collapse of similar proceedings in Malaysia.