CBI to SC : Wanted SLP in Bofors but government didn’t clear

The CBI has told the Supreme Court that it was of the view that a special leave petition (SLP) should be filed against the 2005 Delhi High Court order acquitting the Hinduja brothers in the Bofors case, but it could not do so as the then UPA government did not grant permission.

In a recent disclosure made to the Public Accounts Committee (PAC) of Parliament, the CBI, when asked why it had failed to pursue the matter, said: “Vide letter dated 23.03.2017, the Central Agency Section of the Supreme Court of India desired to know the view of CBI on this matter as the Hon’ble Court had enquired about the stand of CBI/UOI.

CBI, vide its letter dated 22.06.2017, conveyed its view that CBI, an investigative agency, was of the view that SLP should be preferred against the order of Delhi High Court dated 31.05.2005, however, since permission for filing SLP was not accorded to the CBI by the competent authority, no SLP was preferred.”“The CBI as the investigating agency was of the view that SLP should be preferred against

The “competent authority” for all decisions on appeals to be filed or not for the CBI is the Department of Personnel and Training (DoPT) which, in turn, approaches the Law Ministry for the specific opinion on cases. In the Bofors matter, the CBI was specifically asked by the government to give its opinion on the challenge to the Justice Sodhi order filed by Delhi-based lawyer Ajay Agarwal, who petitioned the Supreme Court last month for an early hearing in his case.

The CBI’s fresh disclosure about its submission to the Supreme Court was made to sub-committee IV of the PAC (2017-18) relating to action taken in the Bofors case.

The PAC had asked the CBI to explain why it had failed to take action and pursue the case in court since 1990. The CBI, in its reply, said it was not correct to suggest that it had failed to take action and pursue the case. To support its statement, the CBI gave details of the action taken since the registration of the case on January 22, 1990.

The CBI said that after the filing of SLP in the Supreme Court by Ajay Agarwal and Raj Kumar Pandey against the 2005 Delhi High Court order, notices were issued to three Hinduja brothers and the State to appear before the court within 30 days. The matter was listed for hearing in 2007 (on October 4, 12, 29 and December 10), and in 2008 (on January 10 and 21), the CBI told the PAC.

“Thereafter, the matter was listed before the court of Chief Justice on 10.02.2010, 01.12.2016, 11.01.2017, 12.01.2017 and 18.02.2017 but no progress could take place,” the CBI said.

The CBI made these admissions almost 12 years after its then Director U S Misra signed a 36-page confidential file on the subject of filing an SLP against the High Court order. Official records with The Indian Express show that the agency dealt with the file from June 26, 2005, and that almost all officers who handled the Bofors case were of the view that an SLP should be filed against the quashing of charges against the Hinduja brothers in the apex court.

The only official who stated on file that the case was not a fit one for appeal was the agency’s Director of Prosecution (DoP) S K Sharma an officer of the Law Ministry who ended his 12-page opinion by writing, “Viewed from every angle, I am of the view that the judgment of the High Court lays down the correct proposition of law and accordingly, I am not inclined to recommend SLP against the order.” The Director of Prosecution also put down that the limitation period for the case expired on September 19, 2005.

Finally, it was then CBI Director Misra who overruled the DoP and, in his one-page opinion dated September 7, 2005, pointed out that the entire line of CBI officials who had investigated the Bofors matter were in favor of an SLP being filed. These included the Investigating Officer, Superintendent of Police, Deputy Inspector General, Additional Legal Advisor, Joint Director and Additional Director.

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