Author: Ritu Sarin
Publication: The Indian Express
Date: February 12, 2005
URL: http://www.indianexpress.com/archive_full_story.php?content_id=64543
Introduction: Additional Solicitor
General says no justification for action: delay may lead to release of
frozen funds
For the last two months, the Central
Bureau of Investigation (CBI) has been dithering over the most sensational
scandal it has ever handled-the 17-year-old Bofors case.
The reason: The Government's legal
nominee has given an advice which contradicts the CBI legal team's opinion
on the action to be taken against Italian businessman Ottavio Quattrocchi.
The Additional Solicitor General, B Dutta, has said that the investigating
agency has ''no justification'' to initiate the action the investigating
agency suggested.
The inability to initiate fresh
legal action against Quattrocchi may lead to the release of the businessman's
frozen account in a London bank. His account of $1 million and Euro 3 million
(around Rs 21 crore) has been frozen since July 2003. Officials from the
Crown Prosecution Service have been frequently reminding the CBI about
this risk.
Last year, Stephen Hellman, counsel
for the Crown Prosecution Service, had suggested that the CBI initiate
fresh action against Quattrocchi-declare him a proclaimed offender under
Section 82 of the Criminal Procedure Code and attach his properties under
Section 83 of the Act.
The Department of Personnel and
Training (DoPT) asked the CBI to get ASG B Dutta's approval before initiating
the action. The ASG's written advice, dated December 9, 2004, apparently
took the agency by surprise.
The ASG said there was ''no justification''
for taking the action. His reasons: one, Section 82 CrPC could not be applied
on Quattrocchi since he did not hail from India or, even if he did, had
left India for good and did not have any home or homestead in a town or
village in India where he can said to be staying ''ordinarily as a resident''
Two, the ASG stated, non-execution
of a warrant was justified since the CBI had made an unsuccessful attempt
to extradite Quattrocchi. Dutta argued that the CBI did not yet have evidence
linking the ''commission of the offence'' as alleged by the agency with
the ''derivation/obtention of the funds.''
Confronted with the ASG's opinion,
the CBI's investigating officers and legal advisors put down their own
opinions on the file. They have said that nowhere does the CrPC state that
proclamation (of an offender) can be done only for an Indian national.
The CBI's team has also stated that
the ASG's opinion that Quattrocchi cannot be described as a ''fugitive
criminal'' is debatable and that a Red Corner Notice (RCN) was issued by
Interpol against him on the basis of which a Non Bailable Warrant (NBW)
was still in force.
Thus, action under Sections 82 and
83 of the CrPc could be resorted to.
Though the ASG's advice reached
the CBI headquarters two months ago, a final view is yet to be taken by
Director U S Mishra. While Mishra was on tour and could not be contacted,
the CBI spokesman said, ''The issue of initiating fresh legal action against
Ottavio Quattrocchi is still under consideration. No final decision has
been reached.''
ASG Dutta, when contacted, told
The Indian Express that he could not discuss the nature of his advice on
the Quattrocchi matter since it was ''confidential'' in nature.
Earlier, the CBI had a June 2004
deadline for providing the British authorities with ''substantive proof''
that Quattrocchi's funds were part of the kickback from the Bofors gun
deal, but that evidence is nowhere in sight.
The Interpol had informed the CBI
that Quattrocchi's fozen funds with BSI AG London had been remitted from
BSI Lugano, Switzerland in May 2003. This is significant since the CBI
was earlier pursuing the line that the funds had been remitted by Quattrocchi
from the Bahamas.
The Swiss authorities are still
to reply to CBI's query whether they will allow an investigation into the
transaction if a fresh Letter Rogatory was issued.
