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How could trial continue in Bofors case, asks SC

When senior advocate Ram Jethmalani sought an early hearing of the Central Bureau of Investigation's appeal against the high court order, a three-judge bench headed by Chief Justice G B Pattanaik observed that staying the order and allowing the trial to continue would amount to allowing the appeal.

The bench, which also comprised Justice K G Balakrishnan and Justice Arun Kumar, felt that the trial should be stayed right away. But the court agreed to hear the matter in detail on Monday after CBI counsel A D N Rao said the apex court had, on July 12, stayed the implementation of the high court's order after hearing all parties while confirming on July 29 that the trial should continue.

When counsel for the Hindujas had sought a stay of the trial, the bench had observed on July 12 that "we are convinced that this [high court] judgment is completely unsustainable. Forget about this case, if such judgments are not stayed, no prosecution would succeed."

On July 10, the high court had quashed the charge sheets filed against the Europe-based Hinduja brothers -- Srichand, Gopichand, and Prakashchand -- saying the CBI did not take the mandatory clearance from the central vigilance commissioner.

They also claimed that the payment received by them from AB Bofors was not linked to the gun deal in 1987, but was consultancy charges as part of their worldwide business.

Arguing before a bench comprising Justice Usha Mehra and Justice R C Jain on a petition by Prakashchand Hinduja, counsel Ram Jethmalani challenged the interpretation of the law by the special court in Delhi in its August 29 order dismissing their applications for quashing the charge sheet on the grounds of delay in probing the case.

He said that though the special court had recorded certain 'findings' in favour of the Hindujas about the delay caused by the CBI, it had 'erred' in interpreting the law in this regard.

Citing the Supreme Court's guidelines regarding speedy trial in criminal cases, Jethmalani said, "Inordinate delay in probing the case may not lead to the same conclusion what it would have been if concluded in shorter duration."

The 15-year delay in probing the case had caused tremendous 'damage' to the Hindujas and they had lost the bid for Air India in the process, suffering a net loss of Rs 5,000 crore [approximately US $1.03 billion] as prices of their shares crashed in the market, Jethmalani contended.

The CBI in a communication in June 2000 to the Swiss justice department 'admitted' that the Bofors documents received by it did not show that the money received by the Hindujas from AB Bofors was linked to the gun deal, he claimed.

"CBI on June 9, 2000, wrote a letter to the Swiss justice department stating that the 71 Bofors documents received by it do not specifically link the payments to Lotus, Tulip and Mont Blanc [three accounts allegedly belonging to the Hindujas] and also do not show that they are received in the gun deal as is shown in respect of the AE Services [of Ottavio Quattrocchi] and Svenska [of the late Win Chadha]," Jethmalani said.