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Tuesday, May 5, 2009

On Babri, it was BJP which made CBI crawl

Ritu Sarin Posted: Tuesday , May 05, 2009 at 0819 hrs IST
New Delhi: For all the moral high ground taken by the Bharatiya Janata Party that the CBI is the “Congress Bureau of Investigation” — especially after it brazenly took Bofors-accused Ottavio Quattrocchi off the wanted list — the fact is that the BJP-led NDA regime, in perhaps the most high-profile political case in its tenure, also over-ruled the agency reducing it to a rubber stamp. And, in the process, set the CBI up for another round of arm twisting by the UPA.
The matter: the decision of the CBI not to challenge the 2003 discharge of then Deputy Prime Minister L K Advani in the case related to his alleged inflammatory speeches during the Babri Masjid demolition.
Confidential files obtained by The Indian Express reveal how handling of the Advani discharge was as partisan as the CBI’s conduct in other politically sensitive probes reported by this newspaper in its ongoing investigative series. Top CBI officers, including at least two DIGs, one Joint Director and the Special Counsel proposed filing a revision petition after Advani was discharged by a Rae Bareli court. But it was once again the agency’s Director of Prosecution, S K Sharma, on whose opinion, the agency referred the matter to the Government’s top Law Officers.
And, in a bizarre turn, these officers, Attorney General Soli Sorabjee and Solicitor General Kirit Raval referred the matter to an outsider, Chennai-based lawyer N Natarajan. Clearly, the issue of expressing an opinion in a case involving the Deputy Prime Minister was too hot to handle.
The CBI’s Advani headache got worse when the Congress came to power in 2004. Perhaps, for the first time in the agency’s history, the CBI received several strongly worded missives from the Congress-led UPA, asking for written explanations on how and on whose advice Advani’s discharge remained unchallenged.
When the CBI defended its stand, via a letter dated August 12, 2005, CBI Director U S Misra was asked by the Department of Personnel to “send the opinions of Attorney General and N Natarajan with your comments.”
The saving grace for CBI was the fact that even as this correspondence was being exchanged, on July 6, 2005, the Allahabad High Court set aside the Rae Bareli Magistrate’s discharge and directed the trial against Advani and seven others to commence.
The CBI was also made a respondent in this case where two private persons, Haji Mehboob and Hafiz Siddiq, had challenged Advani’s discharge. And during early arguments — announcing its volte face in a changed political scenario — CBI’s counsel, this time with UPA at the Centre, argued just the opposite: that the discharge be quashed!
A scrutiny of the sequence of events in the NDA regime, as per official records, reveals the carefully calibrated manner in which the CBI was forced to abandon the appeal against Advani’s discharge:
n The tone was set by S K Sharma, a Joint Secretary in the Law Ministry who for several years has been holding the post of Director of Prosecution in the CBI. In a 15-page opinion dated December 4, 2003, he concluded: “I feel the impugned order is evenly balanced and, to a considerable extent, the prosecution is on a weak wicket. However, considering the important question of law and fact involved, we should seek the opinion of any of the law officers of the Government of India on the point of feasibility of filing against the impugned order.”
n In a one-page note, U S Misra (then Special Director) reveals how the agency’s officers pushed for challenging the discharge. “I have gone through the comments of DIG (M Narayanan), DLA (Deputy Legal Advisor), Special Counsel (S S Gandhi), DIG (Lok Nath Behra), Joint Director (Vivek Dubey) and the DoP,” he wrote. “(These) Officers...except the DoP have recommended filing of a revision petition in the High Court.”
n Barely two days before he demitted office — December 4, 2003 — then CBI Director P C Sharma endorsed the DoP’s stand. And signed off: “I doubt whether we have a prosecutable case. Taking resort to such a course, I am afraid will only prolong the proceedings...I agree with DoP that the matter should be referred to the Attorney General...”
n But Attorney General Sorabjee, on December 11, 2003, skirted the issue. “It would be advisable and prudent, in order to obviate needless controversy, that the CBI consult N Natarajan, who is an eminent senior counsel..and seek his opinion in the...matter and act in accordance with it,” he wrote.
n Natarajan’s opinion came in six days later with the conclusion: “I am of the view that his (L K Advani’s) discharge is justified in the circumstances of the case and it is not appropriate to file a Revision Petition against his discharge.”
n With the Attorney General out of the country, it was Solicitor General Kirit Raval who gave the green light to the CBI. In his carefully worded opinion, on December 26, 2003, he endorses Natarajan’s view and tries to distance himself from it: “I am in agreement with the opinion of N Natarajan and therefore the CBI should act in accordance with Natarajan’s opinion, as stated in the latter of learned AG...”
Given all this, few in the CBI were surprised when Misra, who had by then taken over as Director, ruled in a six-page note: “No revision is to be filed against the order of discharge of Shri Advani...”
Reprisal followed when the UPA came in and struck back. In a letter dated August 12, 2005, the Department of Personnel asked the CBI to explain: “internal deliberations;” “the sequence of events” leading to seeking the AG’s opinion; “at what level it was decided” not to file an appeal; “internal mechanisms” of filing appeals; why the case was called “complex and sensitive” and to submit all opinions “with comments” to the Government.
Meanwhile, in the Rae Bareli court, developments were on track as far as the UPA Government was concerned. With the revision being allowed, charges against Advani and seven others were framed on July 28, 2005 and prosecutors handling the case say hearings are being held every month or so although frequently interrupted by adjournments.
The CBI’s lawyers say that to date four witnesses have been examined and of their list of 40 witnesses, they propose to call around 20 to depose. The next hearing is scheduled for May 16 — when the results come in and another set of wheels starts moving in the Law Ministry and the CBI.

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