I am not an uncompromising admirer of the Central Bureau of Investigation (CBI), despite the fact that I was once director of the crucial agency. It is an outfit which has its strong points such as talented and dedicated supervisors with a sound knowledge of the law and of unquestioned integrity. It is also an outfit with a few glaring shortcomings, such as the enormous delay taken in completing many an investigation and having in its ranks a set of black sheep who have brought ignominy to the organisation. The CBI’s performance in recent times has been a mixed bag, with its moments of glory alongside its moments of shame.
The Nirav Modi, Mallya cases
For example, the Nirav Modi case which was very much in the news recently is testimony to the CBI’s capacity to execute a professional job, provided it is given a free hand. The jeweller, who took Punjab National Bank for a ride, is holed up in Wandsworth Prison in London. He tried his best to demolish the CBI case to get him extradited but did not succeed because the London Westminster Court which tried him was convinced that the prosecution had a watertight case. It is generally believed that the CBI will succeed very soon in bringing him to Mumbai where he is expected to be lodged at Arthur Road jail. Fortunately, the CBI is learned to have received the unstinted support of the Crown Prosecution Service (CPS) of the United Kingdom, which has an enviable record of professional excellence. Extradition of accused persons who have fled India is the toughest task before the CBI. In this, we have had a few successes and many failures. I am happy that the CBI has done a thorough job in the Nirav Modi case, in ferreting out all details and presenting them before the London court.
In discussing the Nirav Modi case, my mind goes back to the Bofors gun case of the 1980s-90s where an enterprising wheeler dealer, Ottavio Quattrocchi, (said to be close to a political family in India) was allowed to escape from India with the then government’s connivance, and later helped by influential persons in Delhi circles. He was never brought back to face trial in India despite overwhelming evidence against him.
More recently, Vijay Mallya, the liquor baron of Karnataka, who received huge financial favours from a few banks, has been dodging imprisonment and repatriation to India. There are many stories behind his success in evading the due process of law, some credible and some not. Mr. Mallya has lost his case both before the lower court and the High Court. His fate now depends on what view the U.K Home Secretary will take. Sensing his hopeless situation, Mr. Mallya is believed to have sought asylum in that country.
The CBI can rightfully gloat over its success in the Nirav Modi case. The order (February 25, 2021) of a Westminster Magistrate’s Court, London did not mince words. It confirmed that the accused had indeed committed an extraditable crime. This is a shot in the arm for the CBI investigators. This was undoubtedly the outcome of sustained investigation for two years after overcoming the many obstacles put up by an accused person with enormous influence. He was able to get the help of two former Indian judges (one of who was a former Supreme Court judge) to exploit the alleged loopholes in the prosecution story. However, this ploy did not succeed.
Strategies by the accused
In all cases of extradition, the ruse of the accused was mainly to dispute that he had committed an extraditable offence. The endeavour here was to prove that the offence alleged against him was not in the statutes of the country where he is living. Another stand which an accused usually takes is to allege that political considerations had weighed in the mind of the requesting country in demanding extradition. A third strategy was on trying to prove that the country seeking transfer of the offender did not fulfil human rights requirements, particularly in respect of hygiene in the prison in which he was proposed to be lodged. (A video of Mumbai’s Arthur Road jail filed by the prosecution clinched the issue.) Incidentally, this is where Mr. Mallya will also be if and when he is extradited.)
The London judge rejected all three contentions put forward by Mr. Modi’s counsel, and this reflected the thoroughness with which the CBI had done its job.
In the present case, the facts are fairly clear unlike Bofors where the number of players was too many and the transactions under scrutiny originated from a foreign company. Mr. Modi bought up a single employee of Punjab National Bank who was willing to do his bidding.
Financial fraud is a maze
A novel modus operandi was employed to hoodwink many in the top echelons of the bank in connection with the Letters of Undertaking and the bank’s core banking system. This was a new lesson to learn for bank fraud investigators and the banking industry. Talk of tightening lending procedures becomes meaningless if a bank employee decides to turn a rogue and is able to successfully hide major unauthorised concessions. This is analogous to many attacks admitted to by financial corporations across the globe during the past few decades on their computer systems, where one bad employee (who had authorised access to sensitive information) can wreck all security arrangements.
A final thought. The public should be made to understand that financial crime in current times is too complicated for agencies such as the CBI and Enforcement Directorate (ED) to unravel all the facts in quick time. What is involved here is a laborious process of identifying documents that are required to prove a case and to explore where exactly they are lodged or hidden. Many such documents, as in the Bofors case, are in other countries, in private and public recesses. There is mind boggling protocol that has to be observed in trying to procure them. Any ham-handed approach will frustrate the whole process.
Other travails
In all such matters, another instrument of torture for the prosecution is the so-called Letter Rogatory (LR), which the relevant court in India will have to issue to the corresponding court abroad to get hold of documents or examining witnesses in the countries involved. This is a painfully long-drawn-out process which many influential accused persons have taken advantage of. Courts in India are sometimes unfair to the investigating agencies by lambasting them for being responsible for delays, ignoring the fact that it is quite often the foreign government concerned which is dragging its feet. This is part of the huge number of travails that the prosecution faces in pinning down the guilty. Agencies such as the CBI and ED are sometimes the favourite whipping boys of the public and, unfortunately, sometimes of the judiciary.
R.K. Raghavan is a former Central Bureau of Investigation Director and a former High Commissioner to Cyprus
