The Supreme Court on Friday refused to entertain a CBI appeal to revive charges against the Hinduja brothers in the ₹ 64-crore Bofors guns pay-off case.
A Bench, led by Chief Justice of India Ranjan Gogoi said the court was not "convinced" by the CBI's explanation for moving an appeal in the apex court after the Delhi High Court order discharged the three Hindujas in 2005.
"We are not convinced... we do not like to entertain," Chief Justice Gogoi addressed Attorney General K.K. Venugopal, representing the CBI.
The CBI, in its appeal, blamed the previous United Progressive Alliance government for its 'silence' all these years.
It said “crime never dies and lapse of time is bar to proceed against offenders however powerful they may be”.
The court pointed out that the CBI is a party in an identical appeal filed by a private person, advocate Ajay Agarwal, against the High Court order. That appeal is still pending in the Supreme Court. The court suggested that the CBI court argue its grounds in that appeal.
The CBI appeal had challenged the Delhi High Court decision of May 31, 2005 to end all proceedings against Europe-based industrialists S.P. Hinduja, G.P. Hinduja and P.P. Hinduja and M/s. Kartongen Kemi Och Forvaltning AB (formerly M/s AB Bofors) in the Bofors scam, which rocked the Rajiv Gandhi government and involved the purchase of 400 155mm FH 77-B guns, equipment, ammunition, etc, from the Swedish company for ₹. 1473.72 crore in 1986-87.
The contract for the guns was entered into on March 24, 1986 between the Government of India and M/s. AB Bofors after approval by then Prime Minister Rajiv Gandhi, who was also the Defence Minister.
The premier investigating agency alleged that a “mind-boggling sum” of ₹. 64 crore was paid to M/s AB Bofors and other individuals as “commission” in a procurement process that “tarnished the country's reputation”. The gun deal was “sullied and vitiated and the government was cheated of legitimate monies payable to it,” the CBI told the Supreme Court.
Charge against UPA-I government
It accused the United Progressive Alliance (UPA)-I government for the delay in filing this appeal against a scam that “jeopardised national and public interest”. It conveyed to the Supreme Court how it watched on helplessly as the accused persons went scot-free in 2005 without trial or punishment.
In a separate application to condone the delay of a dozen years, the CBI said it wanted to challenge the “legally unsustainable” order of the High Court, the UPA-I government of the time denied it permission to come to the Supreme Court. The situation was simply out of its control and the “perpetrators are yet to be brought to book”.
“While the petitioner-CBI 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,” the application said.
The agency said the primary reason for it to approach the Supreme Court in appeal is a development in 2017 that “fundamentally alters the landscape” in the Bofors scam case.
Michael Hershman interview
This “most significant development” is an interview given by Michael Hershman to an Indian TV channel. “In the said interview, Mr. Hershman has stated that he is in possession of material which would show the payment of bribes in the Bofors deal, and that the involvement of powerful persons may be the reason for the checkered history of this case. The statements made by Mr. Hershman go to the very root of the matter,” the CBI told the apex court, while placing on record the transcript of the interview.
The CBI said it had moved the trial court concerned under Section 173 (8) of the Criminal Procedure Code for further investigation in the case. But the 2005 High Court order stood as a roadblock and the Supreme Court had to remove it, hence the appeal.
It said the High Court quashed the proceedings in an arbitrary manner saying that the documentary evidence obtained by the CBI from the authorities in Sweden were “neither available in original nor as duly authenticated copies”.
The High Court had said it would be “cruel joke on the accused to expose them to a long and arduous trial and waste public time and money” on the basis of such evidence.
