HVK Archives: Sinned against
Sinned against - The Observer
Dina Nath Mishra
()
19 September 1996
Title : Sinned against
Author : Dina Nath Mishra
Publication : The Observer
Date : September 19, 1996
Prior to special judge V B Gupta's judgment to proceed
against BJP president L K Advani by framing the charges,
the mood in the BJP camp was quite optimistic. The
judgment came as a shock to many. Not only was the BJP
camp optimistic, but all those who were following the
proceedings of the court were expecting that CBI char-
gesheet would be quashed. That was not without reasons.
Advani's case was fundamentally different from the rest.
There were people who were aware of the mood of the
judiciary vis-a-vis politicians. In each and every case,
the judiciary was coming down heavily on politicians. In
the prevailing atmosphere, acquittal of Advani before the
trial could have been an exception. But the learned
judge did not consider the arguments and said in his
order that the arguments would be admissible in the trial
phase. The facts of Advani's case are entirely different
from the rest.
Take, for example, V C Shukla's case. That was based on
two factors. First, Shukla's name was mentioned in the
diaries. This gives prima facie ground for suspicion
since the book of accounts is admissible under section 34
of Evidence Act. Secondly, there are several corrobora-
tions of V C Shukla's association, personal and also in
his capacity as minister, with the Jains, besides other
corroborations of various financial and personal transac-
tions with them.
It may be mentioned here that the Jain diaries were
meticulously maintained, and does not suffer from inter-
nal inconsistencies. Therefore, the diaries can be
considered as book of accounts admissible. The said act
states that books of accounts maintained in the regular
course of business are admissible evidence but not con-
clusive to charge a person with liability.
The fundamental point in Advani's case is that his name
does not figure in any diary. These diaries consist of
the khatas for three months, a monthly ledger of 38
months and periodic ledger of 36 months. There has been
consistent propaganda and misinformation campaign by CBI
directly working under the then Prime Minister Rao, that
Advani's name figured in the Jain diary. The absence of
Advani's name in the regularly prepared accounts is a
very relevant Factor. Further, the CBI counsel has
orally stated in the court, and in the submissions before
the special judge, that Advani's case is the only one
where there is not even a single corroboration available
in any form of association or dealing between Jains.
There is not even an allegation made in the chargesheet
that they knew each other or met each other.
On both counts, whether one's name figured in the diary
and corroboration of association with Jains, Shukla's
case or the cases of most of the other accused stand
poles apart from that of Advani. The absence of Advani's
name in the perfectly maintained accounts in the diaries
is itself a proof of non payment. With the best of
efforts, under pressure from Rao, the CBI could not find
any corroboration.
Let me give an example. Desu floated two tenders in 1989
to set up waste heat recovery units in its gas turbine
power station and one more in Kashmiri gate installation.
Alsthom and Bhel were the bidders. Alsthom, despite
higher quotation, was favoured. At that point of time,
Delhi administration was under the Congress. It was
thought in CBI circles that BJP members in the committee
favoured Alsthom due to Jain connections. Before finding
the truth, stories were planted in the newspapers in the
second week of March 1996, imagining that the all India
President L K Advani must have directed the state BJP
president M L Khurana, who in turn gave necessary in-
structions to the BJP members of the committee, Sahib
Singh Verma and Sudershan Bhalla. Then, they might have
sided with their Congress counterparts in favouring
Alsthom. But much to their disappointment, the lead
flopped because both the BJP members had recorded their
dissenting note. This story has been recycled by the CBI
as late as this week in an economic daily. The fact
remains that no corroborative evidence would be found or
cooked up till date.
All it has is a loose sheet of paper, found along with
the diaries five years back by CBI during the raids on
the premises of the Jains. This is the basis on which
chargesheet against Advani was filed. It is written
under the head POE, decoded as political expenses. There
is entry against LKA and 35 decoded as L K Advani and Rs
35 lakh. Technically speaking, this loose sheet is
inadmissible for the following reasons. It contradicts
the diaries. Any accountant can find out the contradic-
tion. Page 8 cannot be considered as a book of account
under section 34 of the Evidence Act. In any case, proof
of a document such as page 8 is not proof of the content
of the document. The same has to be proved by oral or
documentary evidence which is non existent.
Page 8 is central to the whole case of Advani. The most
crucial aspect is whether page 8 can be related to the
diary at all. This question on facts was argued by the
CBI, and the counsel for Advani for at least 10 days.
The CBI in the chargesheet did not allege any connection.
In the opening argument it gave a chart. It was estab-
lished that the chart contradicted the diaries them-
selves. The CBI did not press the point, and gave two
more charts instead.
It is apparent that page 8 is an inadmissible piece of
evidence which contradicts the primary document i e the
diaries. The very fact that the CBI had to change its
chart twice to show some relevance of page 8 to the
diaries, means that it was finding it difficult to main-
tain the chart to sustain. The very fact that 25 contra-
dictions are pointed out between page 8 and the diaries,
shows that not much reliance on page 8 could be put.
Page 8 is inadmissible under section 10, as also under
section 34 of the Evidence Act.
Can a charge ever be framed or sustained on the basis of
such flimsy documents? The only way the argument could
have been ignored was to postpone the determination of
the legal issues. The learned judge deals with all these
and many more, by saying "all these judgements relate to
the trial and not to the framing of the charges". In a
way, the designated court has passed a judgement before
judgement. He has built up a case in his judgement,
which he cannot go back from. And it is he who has to
conduct Advani's trial. In a way, he has already done
it.
The loss is to the BJP an particularly to Advani, for he
has said that he would not enter Parliament till his name
is cleared. Party workers were waiting to field him for
the Gandhinagar by-election if his name was cleared by
the designated court. Despite the adverse order, party
leaders and MI,AS, particularly of Gandhinagar Lok Sabha
constituency, were urging him to be a candidate in the
by-election. Practically nothing stands between Advani
and his entry to Lok Sabha, but his words. He won't go
back on his words. He has withstood the pressure, and
politely said 'no' to everyone. It is very distressing
that a sterling leader has to undergo such an ordeal.
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