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Fourth time unlucky. Fair, was that?
The refusal of bail to DMK leader Kanimozhi and others accused in the 2G scam by a CBI court has evoked reactions from legal eagles on whether the order violates the judicial norm of according bail to accused, once investigations are complete and trial is set to begin.
Issue Date - 24/11/2011
It was a welcome that was never meant to be. November 5, 2011, was expected to be a day of celebrations for the DMK in Chennai, as it was widely believed that the bail petition of M.K. Kanimozhi, daughter of DMK supremo M. Karunanidhi, would be approved, especially since the Central Bureau of Investigation (CBI), the prosecuting agency, had not objected to pleas for bail by her and four others. Since May this year, Kanimozhi has been in judicial custody in Delhi’s Tihar Jail in connection with the infamous 2G scam. As it happened, the much anticipated relief from the court never came about. On November 4, Special Judge O.P. Saini, heading the CBI Special Court, struck down the bail applications of Kanimozhi and seven others at a packed trial courtroom at the Patiala House complex in Delhi. Kanimozhi – who was otherwise relaxed and calm before the court session began – broke down as her husband G. Aravindan, mother Rajathi Ammal and 11-year-old son tried to console her. This was the fourth time that Kanimozhi’s bail plea was rejected. It was first rejected by a special CBI court, then by the Delhi High Court and then the Supreme Court.

In dismissing Kanimozhi’s bail application along with that of seven others, Judge Saini cited “the very serious nature of the charges” against them, even though the prosecutor had not opposed the bail pleas of most of the accused. Rejecting the contention that the accused should be given bail as the offence was not one punishable with death or life imprisonment, the court’s response was uncharacteristically harsh. “Merely because the offence is not one punishable with death or life imprisonment, the accused is not entitled to bail as a matter of right. If the allegations so warrant, bail may properly be refused even in case of the non-bailable offence not punishable with death or life imprisonment,” stated the Special CBI court. Terming the case, as one of unprecedented nature, Justice Saini observed that, “The facts and circumstances of the case itself suggest that the witnesses would be under a lot of pressure, given the serious consequences of the case for the parties. This is further compounded by the fact that the witnesses are employees, relatives, family members, colleagues and subordinates of the accused persons.”

The court also refused to draw a distinction made by the CBI in not opposing bail to those who were included as accused (Kanimozhi and four others, Asif Balwa, Rajeev Aggarwal, Karim Morani and Sharad Kumar) in the supplementary charge sheet, as they had been charged with a lesser offence punishable with imprisonment for five years, and those cited as accused in the main charge sheet. The court noted that once the supplementary charge sheet was merged with the main charge sheet, there was only one charge sheet and no distinction could be made on the basis of separate charge sheets.

The reactions to the judgement have been mixed. President of the Janata Party Subramanian Swamy, who is also pursuing a private complaint in the 2G scam, feels the court’s decision to deny bail to the accused has set an example for future cases. Speaking exclusively to B&E, Swamy said, “The judgement will help reinforce the belief that the rule of law prevails in India even after all other agencies go soft.” A section of legal luminaries, however, feel differently. There have been some sharp reactions to the judgement, which is said to smack of judicial activism. Senior advocate Ram Jethmalani termed the judgement as ‘a destruction of the whole criminal jurisprudence’. “These judges don’t want to grant bail themselves. Possibly, they want everything to be done by the Supreme Court,” he said. Critics of the judgement maintain that there were no grounds for keeping the accused in jail as even the investigating agency CBI had not opposed the bail. Swamy, however, offers a different take. “It is unfortunate that the CBI succumbed to petty political pressures and slowly put the lid on the entire case. The judiciary has set an example with this judgement that justice can be upheld even in circumstances when all other agencies of governance fail to deliver.” According to him, given the pro-Centre functioning of the central agency, the very fact that the CBI had ‘gone soft’ after preparing a strong case suggested that the Congress was not keen in keeping the accused behind bars anymore.

According to Supreme Court advocate Kamini Jaiswal, the court judgement denying bail to Kanimozhi and the others accused in the 2G case is unfortunate. “The rule is bail and not jail. Once the charge sheet has been filed, and given that the entire case is based on documentary evidence, what is the point keeping them in jail?” Jaiswal disagrees with the court’s contention that as Kanimozhi and others accused are influential people, granting them bail might result in manipulation of witnesses and tampering of evidence. “If they are influential people, they can very well manipulate things from inside the prison,” she contends. Many others in the legal fraternity too feel that withholding bail at this stage when all documentary evidence have already been placed before the court is being unduly harsh on the defendants. These experts say that going by the law of jurispudence, which has been cited while deciding on many bail pleas, the usually expected move is bail. In this case, however, the judiciary seems to have tried to score one over the government. “It is in continuation of a trend that the SC has set for taking on the government on many issues,” says a senior lawyer on the condition of anonymity, adding that the tone of the CBI court clearly revealed that the SC was monitoring the case and the rejection of the bail plea by the trial court was in line with the earlier apex court’s decision not to grant bail to Kanimozhi and four others accused.

The judiciary has taken a particularly tough stand in this case and opinions differ on the reasons behind such a stance. However, taking a cue from the tone and tenor of the court while dealing with serious economic offences, any positive results seem unlikely for Kanimozhi, even though her defence counsel has now moved a petition in the Delhi High Court for seeking bail. The enormity of the scam is huge, and this has formed one of the major grounds for the trial court’s rejection of Kanimozhi’s bail plea so far. The higher courts may overturn Judge Saini’s order, but no one can say he did not do his best on behalf of those whose evidence will be crucial to nail the accused in the greatest financial scam in Indian history

Parimal Peeyush           

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