Friday, August 31, 2007

Ottavio Quattrocchi walks free

Off the hook

V. VENKATESAN

Ottavio Quattrocchi walks free after the Indian government decides not to appeal against an Argentine court’s rejection of its plea to extradite him.

THE entry on physical description for Ottavio Quattrocchi, wanted by Interpol, New Delhi, for his role in fraud and bribery in the Bofors pay-off case, on the website of the Central Bureau of Investigation (CBI) reads:

Height: not known

Colour of eyes: not known

Colour of hair: not known

Distinguishing marks: not known

Characteristics: not known

That the CBI could not provide a physical description of the well-known accused – very often shown on television – may well suggest its lack of seriousness in seeking his extradition despite the fact that it did not prevent the Argentinian authorities from detaining him on February 6 on the basis of an Interpol red corner notice issued in 1997. But the story of how Quattrocchi succeeded in leaving Argentina for Milan, Italy, on August 15 after getting back his travel documents reveals the investigating agency’s connivance at derailing the extradition proceedings against him.

Quattrocchi got bail in February itself, but was barred from leaving Argentina until the extradition proceedings finally concluded. On June 8, Judge Mario Harichi Doi of the First Court in El Dorado, Argentina, rejected, on technical grounds, the Indian government’s request for extraditing Quattrocchi to India. The Judge’s objection, according to reports, was that the fresh arrest warrant issued by a Delhi court on February 24 did not spell out the “reasons” why Quattrocchi ought to be arrested.

Quattrocchi’s detention on February 6 was carried out on the basis of the arrest warrant without bail issued by the Special Judge, Delhi, on May 25, 1997. So the Indian government, Judge Mario Hachiro Doi said, should have attached a certified copy of that judicial decision which ordered the detention but instead, only the arrest warrant of February 24 had been tagged. Even this warrant the Judge said, did not specify the “reasons” for detention and for the request of extradition. This was a “fundamental requirement” for not dismissing the request for extradition, the Judge said.

Under Argentine law, the lower court’s decision would be challenged automatically before the Supreme Court by the public prosecutor unless the government specifically asked him not to.

Only on July 28 the CBI filed a status report in the court of the Chief Metropolitan Magistrate (CMM) in Delhi – which is the court where the Bofors case is being heard and Quattrocchi is listed as an absconding accused – that an appeal had been filed. The CBI’s status report stated: “It is further informed that an appeal against the order dated June 8, 2007 of the Federal Court [rejecting the CBI’s extradition request] as is mandatory as per Argentine law, has been filed by the Argentine public prosecutor in the Federal Court of El Dorado.”

According to reports, Lilian Delgado, the Argentine public prosecutor hired by the government in March to press for Quattrocchi’s extradition, confirmed on August 15 that the Indian government had decided to withdraw the appeal. Indian Ambassador Pramathesh Rath handed over a “formal communication” to the Argentinian Foreign Office asking to withdraw the Supreme Court appeal. CBI Director Vijay Shankar was apparently unaware of the appeal being filed and withdrawn.

Precisely who in the Indian government advised Lilian Delgado to withdraw the appeal and on what grounds it was done remains a mystery.

The Supreme Court, while hearing a petition filed by Ajay K. Agrawal on August 20, directed the CBI to place before it the order of the Argentinian Judge rejecting the extradition request. Agrawal’s petition followed the CBI’s failure to file an appeal against two verdicts of the Delhi High Court in the Bofors case. Agrawal had also challenged the Indian government’s role in defreezing Quattrocchi’s bank accounts in London, enabling him to withdraw the entire money deposited in the accounts.

The CBI’s status report did not refer to the specific grounds cited by the Argentinian Judge for rejecting the extradition request. According to the report, the request was declined because Quattrocchi’s detention was illegal as it was not supported by a reasoned order of the Indian court and because the non-bailable warrant issued by the CMM, Delhi, on February 24, though supported by an order, was not adequate.

Agrawal’s application has raised disturbing issues concerning the CBI’s handling of the case. Citing newspaper reports, he alleged that CBI officials passed on “opinions” of Law Officers and of its own officials to Quattrocchi’s counsel to “facilitate” its “own defeat” in court. “[The] CBI was neither serious nor sincere in its efforts to secure his extradition,” Agrawal alleged.

An important newspaper report the CBI has so far not rebutted is the one quoting Quattrocchi’s counsel, Free Land. The Sunday Express of June 10 quoted him as saying that among the papers he presented to the Judge was the opin ion of S.K. Sharma, CBI’s Director of Prosecution – who was, ironically, present in the El Dorado courtroom – that the entire Bofors investigation had become untenable and that “there was no case”. Free Land continued: “It was this opinion in 2005 that led to the CBI not filing an appeal against the Delhi High Court ruling by Justice R.S. Sodhi dismissing the case against [the] Hindujas.”

Doubts have also arisen whether the CBI rebutted effectively the arguments of Quattrocchi’s counsel against extradition. One of the pleas of his counsel was that the warrant produced by the CBI was silent on the two Delhi High Court judgments in the Bofors case. On February 4, 2004, Justice J.D. Kapoor dismissed the charges against the various accused in the Bofors pay-offs case. He held that Quattrocchi could be charged only with conspiracy to cheat. In May 2005, Justice R.S. Sodhi gave a clean chit to the Hinduja brothers..

On February 24, 2007, the CBI obtained a fresh non-bailable warrant of arrest against Quattrocchi under Section 120-B read with Section 420 of the Indian Penal Code (dealing with conspiracy and cheating respectively) from the court of the CMM, Delhi, as the previous non-bailable arrest warrant, dated February 6, 1997, had been issued by the Court of Special Judge, Delhi, under various provisions of law, including the Prevention of Corruption Act (PCA).

In his February 2004 order, Justice Kapoor quashed the charges under the PCA, making it necessary, it would seem, for the CBI to obtain a fresh warrant. But the question why the CBI did not obtain a fresh warrant immediately after the February 4, 2004, order remains unanswered. The fresh warrant was obtained after Quattrocchi was detained in Argentina on the basis of the old warrant whose legal validity had come under a cloud following Justice Kapoor’s order. If the cheating and conspiracy charges survived under the old warrant, there was no need to obtain a fresh warrant after Quattrocchi’s detention in Argentina.

The red corner notice was issued against Quattrocchi on February 17, 1997, although he had left India in 1993 under mysterious circumstances. His trial was separated from that of the other accused in 2001.

Case in Malaysia

In 2003, the CBI attempted to seek Quattrocchi’s extradition from Malaysia. The Indian government contested the matter before Malaysian courts. The Sessions Court in Malaysia held that under both Malaysian law and Indian law conspiracy and cheating were two separate offences, but when read together they gave rise to duplicity of offences, resulting in ambiguity.

As a consequence, the Sessions Court concluded there was no clear indication of the description of the offence that was committed. Therefore, it was not possible for the court to determine whether the offence was an extradition offence under Section 6 of the Malaysian Extradition statute.

The High Court of Malaysia held that the identification of the corruption offence alleged to have been committed by Quattrocchi was open to doubt. The thrust of the cheating offence against Quattrocchi was the receipt of money by him following the appointment of A.E. Services Limited of the United Kingdom, at his behest, as the consultants of Bofors.

The High Court of Malaysia pointed out that paragraph 13 of the charge sheet of the Indian trial court referred to the prohibition on the appointment of agents as “the present government did not approve of the appointment of Indian agent[s] acting for foreign suppliers”.

The court then noted: “When I invited the prosecution and the two counsel to submit on them there was no positive response worthy of consideration. These facts cannot therefore be termed or treated as particulars for the offence of cheating from the document made available.” Thus, the High Court affirmed the order of discharge passed by the Sessions Court and dismissed the Indian government’s application for extradition. Both the Court of Appeal and the Federal Court of Malaysia dismissed the Indian government’s appeals.

In 2006, the CBI defended before the Supreme Court its decision to defreeze Quattrocchi’s accounts in London by claiming that there was no evidence to link the funds in the London accounts with the proceeds received by Quattrocchi allegedly through A.E. Services. Secondly, the CBI claimed there was imminent unlikelihood of securing his presence in India for completing the trial.

After the failure of the extradition case in Argentina, Vijay Shankar said the CBI would continue to pursue his extradition and the red corner notice against him would survive as long as he was wanted by an Indian court. Going by the experience so far, it could be an exercise in futility.

Courtesy_
Frontline

http://www.flonnet.com/fl2417/stories/20070907506608900.htm

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