HC no to plea on Rajiv’s name

NEW DELHI, Dec 23 (PTI) — The Delhi High Court today dismissed a petition seeking deletion of former Prime Minister Rajiv Gandhi’s name in the Rs 64 crore Bofors gun deal kickback case charge sheet.

Mr Justice Cyriac Joseph said the CBI had not committed any illegality by including Rajiv’s name in the second column of CBI charge sheet meaning person not sent for trial.

The Judge, while dismissing the petition filed by the Rajiv Gandhi Ekta Samiti (RGES), said that the CBI has not committed any illegality by putting Rajiv Gandhi’s name in the second column of the charge sheet, which meant that he was not being sent for trial.

The court had on December 6 reserved its order.

Additional Solicitor-General (ASG) S.B. Jaisinghani, appearing for the CBI, had submitted that Mr Gandhi was the “principal conspirator” in the alleged Rs 64 crore Bofors pay off scam.

“He is the principal conspirator as Ottavio Quattrochhi, a family friend (of Gandhi) is accused of receiving the kickback in the Bofors gun deal,” Jaisinghani had submitted before the Court.

RGES counsel Vijay Shukla had contended that the CBI’s act of putting Gandhi’s name in column-two was contrary to the provisions of Section 173 of the Criminal Procedure Code (CrPC).

Replying to the RGES contention, Mr Jaisinghani had said “if CBI had failed to mention his name in Column-II, certain necessary information would have been withheld from the court.”

The High Court ruled that former Prime Minister Rajiv Gandhi “is entitled to be seen as an innocent” in the Bofors payoff case, but rejected a plea for deletion of his name from the CBI chargesheet.

“If Mr Gandhi was alive, he would have been sent up for trial,” the judge said in his final order. “He would have got an opportunity to defend himself, prove his innocence and protect his prestige and reputation.”

But destiny has denied him an opportunity to prove his innocence in a fair trial which is guaranteed even to an ordinary citizen of this country, he said.

Since no trial is possible and is contemplated in the case of Mr Gandhi, Mr Justice Joseph said, he is entitled to be seen as innocent in the eyes of law and not guilty of the offences against him.

Legally speaking, there is no criminal case or criminal proceedings pending against him, he added.

“However, the CBI is not responsible for his death. It cannot be blamed for not doing the impossible and impermissible act of sending up a dead person for trial.”

Mr Justice Joseph said the provisions in Section 173(2) of the Criminal Procedure Code (CRPC) showed that names of people by whom the offence appears to have been committed should necessarily be mentioned in the charge sheet whether they are alive or not, whether they have been arrested or not, and whether they are absconding or not.

The judge said the officer in-charge had no escape from legal and statutory obligation to mention Mr Gandhi’s name in the charge sheet even though he was not alive. When the accused is dead, the only thing an officer can do is to indicate that he is not sent up for trial. “Thus by including Mr Gandhi’s name in column two of the charge sheet, the CBI has not committed any illegality.”

Rejecting the contention of the REGS that the name of a dead person could not be included in Column-2 of the charge sheet the court said there was no such ‘‘restriction or prohibition’’ in the CrPC.