The Telegraph
Since 1st March, 1999
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Bofors case pounded from two flanks

New Delhi, Dec. 2: The Bofors kickbacks case reeled under a double blow today as the Supreme Court stayed the trial of the Hindujas and a Malaysia court rejected India’s request to deport Ottavio Quattrocchi, the Italian businessmen known for his ties with the Gandhi family.

Sparks flew in the Supreme Court when a bench headed by Chief Justice G.B. Pattanaik stayed for four weeks the proceedings scheduled to start on Wednesday against the three Hinduja brothers, Gopichand, Prakash Chand and Sri Chand.

The bench held that as an appeal filed by the CBI regarding the fate of the chargesheet is pending before the Supreme Court, it would not be proper to press ahead with the trial.

The trial proceedings will be taken up after four weeks, by when Chief Justice Pattanaik, scheduled to retire on December 19, will be succeeded by V.N. Khare. The next hearing of the CBI appeal will come up only in March.

The CBI had filed the appeal after Delhi High Court quashed the chargesheet filed against the Hindujas on the ground that the permission of the Central Vigilance Commission was not sought. Then Supreme Court chief justice B.N. Kirpal had admitted the CBI appeal and stayed the operation of the high court order, saying the trial should continue apace.

But an unusual relief was granted to the Hindujas by the current bench when they were asked to file an appeal for stay of the trial. The matter was orally mentioned during the mention hour of the court on Friday. The appeal was filed on Saturday. Normally, the petition is first filed and then ‘mentioned’ during the mention hour of the court.

The Hindujas had earlier given an undertaking that they would not appeal against the trial and that they would cooperate with the proceedings to ensure expeditious trial.

The three-judge bench today said it would be a “travesty of justice” to continue with the trial while the Hindujas petition was pending before the apex court.

This ruling also could be considered unusual as trials do proceed when appeals are pending.

When Tamil Nadu chief minister Jayalalithaa had appealed against her trial in the Tansi land scam, the Supreme Court ordered that the trial should go on and that the proceedings should be conducted expeditiously. However, the outcome of the prosecution — the verdict of the trial court — was ordered to be kept pending till the apex court took a decision on the pending appeal.

Today’s ruling did raise eyebrows and voices in the court. Solicitor-general Kirit Rawal, who appeared on behalf of the prosecution, asked: “Are there special rules or procedures for the Hindujas'”

Vehemently opposing the stay, Rawal said: “Hindujas cannot be special for the law and there was an order of this very court for the trial to commence.” He also read out the Hindujas’ earlier undertaking that they would not oppose the trial.

But Chief Justice Pattanaik said: “Let there be stay till the CBI files its response” to the Hindujas’ application.

Rawal’s pointed questions prompted the senior counsel for the Hindujas, Ram Jethmalani, to raise his voice and accuse the solicitor-general of “contempt of court”.

This sparked a heated exchange of words between Jethmalani and Rawal.

Jethmalani: “You are only an officer of the government...with what vehemence you argue'”

Rawal: “It is your attitude which makes me vehement. Is there any special rule for the Hindujas'”

Jethmalani: “You and your government are committing contempt of court (implying the statement of the solicitor-general amounted to contempt).”

Rawal: “You need not say that... I am the solicitor-general of this country. I will be failing in my duty if I do not point out to this honourable court about the facts of the case.”

Jethmalani: “Every time this case comes to the court, you and your government get articles written on it.…”

At this, the Chief Justice intervened to observe that Delhi High Court had quashed the chargesheet and if the trial was allowed to continue, a verdict in the trial would render the appeal of the Hindujas and the CBI in Supreme Court “infructious”.

He then stayed the trial, observing that that the current bench “modify” the earlier order of the apex court (then presided over by Kirpal) that trial should go on against the Hindujas.

Rawal again rose to contend that “there is no change in the circumstances and the situation in the case since the apex court stayed the high court order and allowed the trial to proceed. Why then any variation of the July 19 order of the apex court allowing the trial to continue'”

Chief Justice Pattanaik asked the solicitor-general what would happen if, during the pendency of the appeal in the apex court, the trial court convicted the Hindujas and later the apex court dismissed the CBI case. “There would be a travesty of justice. So the trial should be stayed for the time being,” he said.

Fresh shot at Ottavio

The CBI is pinning hopes on an appeal hearing in the Kuala Lumpur high court tomorrow afternoon after a lower court dismissed India’s plea against Quattrocchi, a key accused in the Bofors case.

A sessions court judge in Malaysia threw out the case against Quattrocchi on the ground that the descriptions of the offences in the requisition papers were “insufficient, vague and ambiguous”.

Quattrocchi has been on bail since his arrest in December 2000. He had alleged that India’s attempt to seek his extradition to stand trial in the Bofors case was politically motivated.

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