Signs of a fair trial

By setting aside the Delhi High Court judgment quashing the Central Bureau of Investigation's charge-sheet against the three Hinduja brothers in the Bofors payoffs case, the Supreme Court has cautioned against interference with the due process of law on unsubstantiated and illogical grounds.

in New Delhi

ON July 7, a Bench of the Supreme Court comprising Justices S. Rajendra Babu and G.P. Mathur set aside a Delhi High Court judgment (delivered in June 2002 by Justice R.S. Sodhi) quashing the charge-sheet filed by the Central Bureau of Investigation against the three Hinduja brothers - Srichand, Gopichand, and Prakash - in the Bofors payoffs case. While allowing appeals filed by the CBI and the Central Vigilance Commission (CVC) against the High Court judgment, the Bench directed the Special Court set up in New Delhi to proceed with the trial. The trial was stayed by the Supreme Court through an interim order in December 2002. In its charge-sheet filed in October 2000, the CBI had accused the Hinduja brothers of illegally taking a commission of Rs.16 crores from the Swedish company AB Bofors to help it bag a Rs.1,437.72-crore contract for the supply of 400 howitzer guns to the Indian Army in 1986. On November 14, 2002, the Special Court Judge, Prem Kumar, ordered the framing of charges against the brothers.

The Delhi High Court judgment and the appeals against it in the Supreme Court brought to the fore two key issues - whether an accused can allege denial of his right of fair procedure as understood by him in terms of the laws and the Supreme Court judgments, and thereby seek to undo a trial under way against him. It was the contention of Prakash Hinduja and the opinion of the Delhi High Court, which granted his plea, that by not placing before the CVC the results of its investigations the CBI had violated the Supreme Court's judgment in the Vineet Narain case, and that the Bureau had bypassed the CVC by filing a charge-sheet before the Special Judge. In its July 7 judgment, the Supreme Court disagreed with this contention.

Ram Jethmalani, counsel for the Hindujas, argued before the court that the Vineet Narain judgment (of December 1997) mandated the creation of the CVC with statutory powers and provided that the CVC, while overseeing the functioning of the CBI, would have the power to prevent or stop an investigation. He submitted that what the judgment in Vineet Narain ordained was part of fair procedure as contemplated by Article 21 of the Constitution, and the action of the CBI in submitting the charge-sheet against the Hinduja brothers without reporting the matter to the CVC had resulted in the denial of this right of fair procedure, in breach of Article 21.

The Bench held that the trial could not be set aside unless illegality in the investigation can be shown to have brought about a miscarriage of justice and that any illegality committed in the course of investigation does not affect the competence and jurisdiction of the court to conduct trial. This being the legal position, even assuming the CBI committed an error or irregularity in submitting the charge-sheet without the approval of the CVC, the cognisance being taken by the Special Judge on the basis of such a charge-sheet could not be set aside, the Bench ruled. On the Vineet Narain judgment the Bench said that it did not say that the CBI would have to obtain concurrence or sanction from the CVC before filing a charge-sheet in court. An accused had no right to approach the CVC or challenge the action of the CBI in submitting a charge-sheet in court on the ground of some purported irregularity in making a report to the CVC regarding the progress of investigation, the Bench said.

Contrary to what the High Court had found, averments made in the affidavits of the CBI and the CVC showed that the investigation report was sent to the CVC by the CBI before filing the first charge-sheet and the CVC was apprised of the developments. The High Court had committed a serious error in not considering the counter-affidavits filed by the CBI and the CVC. It had also erred in failing to consider the fact that on account of the Rajya Sabha not passing the CVC Bill the Ordinance had lapsed, and therefore the duties and functions of the CVC are to be performed in accordance with the Government of India Resolution dated April 5, 1999. That resolution did not provide for the receipt of any kind of a concurrence or approval from the CVC before the CBI submits a charge-sheet, the Bench held. The objective of the Supreme Court judgment in Vineet Narain was to insulate the CBI from extraneous influences, so that it would be able to investigate the commission of any offence freely and objectively. Therefore, it cast a duty on the CVC to review the progress of all cases moved by the CBI for sanction of prosecution, especially those in which sanction has been delayed or refused.

The Bench found the High Court judgment to be confusing and self-contradictory. The Bench referred to paragraph 21 in the High Court's judgment, wherein it said that "the duty to report of the steps taken in the course of investigation is not and cannot be equated with the duty to obtain prior approval or consent of any other authority to these steps." Again paragraph 24 said that "the contention of the petitioner that a breach of these directions would render the action of the CBI void since the directions are to be rigidly complied with is equally misconceived." The Bench concluded: "The High Court having arrived at the aforesaid findings, the only result which could logically follow was to dismiss the petition. There was absolutely no occasion for allowing the same and quashing the cognisance and further proceedings in the case."

The second question was whether a trial can be stayed by an appellate court simply because an appeal is pending against it. In July 2002, the Supreme Court Bench that included Chief Justice B.N. Kirpal refused to concede this argument and granted an interim stay on the High Court's judgment, until the appeals against it were disposed of by the Supreme Court. In effect, the Bofors trial was allowed to continue. However, another Bench headed by Justice Kirpal's successor as Chief Justice, Justice G.B. Pattanaik, through another interim order in December 2002, restored the High Court's order and the stay on the trial court's proceedings. The bench listed hearings on appeals against the High Court's judgment in March 2003.

Chief Justice Pattanaik's interim order came under attack primarily because it was issued within a short time-span, considering that his tenure as the Chief Justice of India was short, about 40 days. Although the Bofors trial involves a huge number of documents and would take at least a few years to be completed, Chief Justice Pattanaik considered the possibility of the trial getting completed before March 2003, and the accused being convicted. This forced him to grant an interim stay on the trial court's proceedings until the appeal against the High Court judgment was disposed of by the Supreme Court. This, he said, was necessary, to avoid a probable travesty of justice, in a situation in which the Supreme Court dismisses the appeals and the trial court convicts the accused. The merits of that decision by the Chief Justice will continue to be debated as the Bench, that pronounced its judgment on July 7, had no mandate to examine this issue.