The Central Bureau of Investigation (CBI) has told the government, on record, that it could not file an appeal against the 2005 Delhi High Court order in which the Hinduja brothers were acquitted because the investigating agency was not permitted to do so by the then UPA government. In a note sent to the Central Agency Section of the Department of Legal Affairs (Ministry of Law and Justice) dated June 22 this year, the CBI has stated that it did not file the SLP (Special Leave Petition) against the judgment of Justice R S Sodhi since it did not get permission from the “competent authority.”
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 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 last month petitioned the Supreme Court for an early hearing in his case.
This is what the CBI has written to the Department of Legal Affairs: “The CBI as the investigating agency was of the view that SLP should be preferred against order of the Delhi High Court dated 31st May 2005 quashing all proceedings against Hinduja brothers. However, since permission for filing SLP was not accorded to the CBI by the competent authority, no SLP was preferred.”
The CBI has made this admission 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 R S Sodhi judgment. Official records with The Indian Express show that the agency dealt with the file from June 26, 2005 on 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 the then CBI Director Misra who over-ruled 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; the Superintendent of Police; the Deputy Inspector General, the Additional Legal Advisor; Joint Director and the Additional Director.
The Director had then written: “The judgment dated 31/5/ 2005 of the High Court of Delhi can have far reaching effects especially on the admissibility of certified photo copies as evidence…I am informed that such a situation has not risen before the Hon’ble Supreme Court of India or any other court prior to this position by the Hinduja brothers…”
He sealed the subject by stating: “This matter needs to be clarified and decided. We may, therefore, recommend for filing of SLP agaianst the order dayed 31/5/2005 of the Delhi High Court to the Ministry of Law & Justice through Department of Personnel & Training for a decision in consultation with appropriate legal authorities.” The then UPA government, clearly, disregarded this recommendation.