The CBI today found itself on a sticky wicket with a Delhi Court questioning its decision to drop the case against Italian businessman Ottavio Quattrocchi in the over two-decade old Bofors pay-off scam, saying there were "certain malafide intentions".
The court made the observations after a Supreme Court advocate opposed CBI's plea for withdrawal of the case alleging that attempts were made to protect Quattrocchi.
"I agree that there are certain malafide intentions in the case and there is no doubt in that," Chief Metropolitan Magistrate Vinod Yadav said when Supreme Court lawyer Ajay Agrawal submitted that the probe agency and the Central Government had tried to protect the 70-year-old Italian businessman.
"I understand that several malafide (intentions) were there in defreezing of bank account (of Quattrocchi) but can you verbally suggest me the ways to secure the presence of Quattrocchi after several attempts of CBI to extradite him had failed," the court asked when Agrawal contended that the withdrawal of the case against the sole accused should not be allowed.
Continuing the arguments, Additional Solicitor General P P Malhotra, appearing for CBI, said that there was no change in Government's stand on withdrawing the case against Quattrocchi in the wake of the Income Tax Appellate Tribunal (ITAT) order in the politically sensitive case.
Malhotra said, "The judgement of the tribunal is wholly irrelevant and reliance on it is totally misconceived."
"There is no change in the stand of the government on withdrawing the case against Quattrocchi," he said when the CMM asked him about Government's position on the issue.
The income tax tribunal in a recent order had said that kickbacks of Rs 61 crore were paid to late Win Chaddha and Quattrocchi in the Howitzer gun deal.
Pleading for withdrawal of the criminal case against Quattrocchi, the ASG said that the court should not rely on the ITAT order while deciding CBI's plea as that proceeding was different from the criminal proceedings against Quattrocchi.
"There are clear findings that dispute before the tribunal was in relation to Income Tax liability rather than fixing any criminal liability or accountability of the assessee (Quattrocchi and Win Chadha) for any other law or obligation," Malhotra argued.
"It has given a finding relying on the Supreme Court decision that the proceedings are purely administrative. The assessing officer is not a court. The proceedings before it are not strictly judicial proceedings," Malhotra said, adding, "Rules of rigour evidence are not applicable and there is difference between criminal proceedings and judicial proceedings."
Refuting the allegations levelled by Agrawal, ASG Malhotra said that the advocate has no 'locus standi' in the case and the court should decide the issue first before hearing him.
The court, however, was not satisfied with the CBI plea and said, "Then, who else would bring malafide on the part of CBI to the court. If somebody wants to bring the truth out then the court cannot deny it."
"The court has to decide certain facts such as whether the application for withdrawal of prosecution against the accused is moved with bonafide intention and the move is in public interest," the magistrate said.
The lawyer, who has also filed a writ petition in the Supreme Court against another co-accused in the case, cannot be stopped from assisting the court in ascertaining the truth, the CMM said, adding that his 'locus standi' to intervene in the proceedings of this case can be decided at a later stage.
Meanwhile, it also allowed Agrawal to inspect the judicial records to prepare for his remaining arguments. The ASG, however, vehemently opposed the order.
"Prima facie, he is entitled to go through the judicial records of the case in larger public interest," the court said.
The court also refused to intervene when ASG Malhotra objected to some remarks of Agrawal against some law officers and accused them of favouring Quattrocchi.
"Without maligning the law officers, the CBI and the political parties, he (Agrawal) can't put forward his argument. I cannot gag him," CMM Yadav said.
"My conscience has to be satisfied before passing an order on the plea. The matter would ultimately go the Supreme Court," the judge said.
Agrawal, during the arguments, said that "One of the Additional Solicitor Generals went to the United Kingdom and helped the accused in getting his bank account defreezed. The CBI had no regards for the Indian courts as it did not inform even the Supreme Court about the defreezing of the account,".
Allowing Agrawal the access of judicial records, the court gave him four weeks time to prepare for his remaining arguments and posted the matter on February 10.
The court adjourned the matter for further hearing to February 10 after Agrawal pleaded time to go through all the documents related to the Bofors pay-offs case.
The court also allowed Agarwal to go through judicial records of the case in larger public interest so that CBI's plea could be decided.
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