Bofors appeal: NDA delayed and UPA denied

For all the UPA vs NDA noise over the Bofors case in the wake of Sten Lindstrom's interview, what neither side will say is what lies buried in voluminous case files and notings by key CBI investigators and law officers. These reveal that between 2004-2006, the CBI was forced to toe the line of its political masters. So much so that it watched as two crucial court judgments in the Bofors case went unchallenged in the Supreme Court.

On Feburary 4, 2004, an order passed by Justice J D Kapoor in the Bofors case in the Delhi High Court quashed all charges under the Prevention of Corruption Act and bribery under the Indian Penal Code. Confidential files accessed by The Indian Express show that the CBI moved quickly to challenge the high court order in the apex court. The first noting on the file was made six days after the verdict — on February 10, 2004.

Subsequent notings were made on February 19, by which time key CBI officers, Keshav Mishra and A K Majumdar wrote on file: "Draft material for SLP (special leave petition) has been prepared...''

Several weeks then passed in obtaining the opinion of noted criminal lawyer N Natarajan, which came in as late as April 21. And three days later, the CBI got a crucial input from its Director of Prosecution S K Sharma: "Both the counsel (U S Prasad, additional legal advisor, CBI and Natarajan) have recommended to go in for SLP against the order of the Delhi High Court. We may act accordingly and send a proposal to the Cabinet Secretariat for instructing the Central Agency Section to file the SLP in Supreme Court.''

This file — along with the draft SLP — was sent to the cabinet secretariat on May 6, "with the approval of Director, CBI''.

The draft SLP, also with The Indian Express, is a 28-page document argued that the High Court "erred."

Even as the CBI worked overtime to file the SLP, the country voted to elect a new government. On May 20, 2004, the UPA came to power and the very next day, key CBI investigator Keshav Mishra was asked to hold a meeting on the subject of filing the SLP with O P Verma, Deputy Legal Advisor in the Law Ministry. Mishra recorded the meeting on file on May 25 by which time Manmohan Singh had been sworn in as Prime Minister.

The CBI files reveal that subsequently, it was the Law Ministry that piled up one opinion after another — reversing the stand of the CBI — against filing of the crucial appeal. Verma's own opinion is dated June 1, 2004 and ends with ..."no substantial question of law is involved, which may require any intervention under Article 136 of the Constitution. Thus it does not appear to be a fit case for filing of an SLP in the Supreme Court.''

The next crucial opinion was that of Union Law Secretary, R L Meena, dated June 22, 2004, which was dispatched to the Secretary, Department of Personnel and Training. The operative part of his four-page opinion: "The judgement of the Delhi High Court appears to be unassailable both from factual as well as legal point of view. Therefore, this is not a fit case for filing SLP in the Supreme Court against the judgement.''

The final nail in the coffin was the opinion of newly appointed Attorney General Milon K Banerji who, in a brief one-para opinion wrote on July 5, 2004: "I have perused the papers, in particular, the careful summary prepared by R L Meena, Law Secretary. I agree with the view of the Law Secretary that this is not a fit case for filing a Special Leave Petition.''

The final noting on the file is that of the then CBI Director U S Mishra who on July 7, 2004 wrote: "Received a communication that Attorney General has vetted the opinion of the Law Department. In view of clear opinion of AG no SLP need to be filed.''

Asked why the SLP wasn't filed when he was Minister, Arun Jaitley, NDA Law Minister in 2004, in an interview on CNN-IBN, listed reasons such as vacation in the court and paperwork that needed to be done by the CBI. And he said: "We did not know we are going to lose the election.''

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