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Assets case: plea to be filed against clarification by court

B. S. Ramesh

`Madras High Court issued clarification without jurisdiction, gave no notice to prosecution'

  • Prosecution seeks four weeks' time to file petition
  • It says more time is needed to make submissions for framing of additional charges
  • Accused to file objections on Saturday

    BANGALORE: The prosecution in the disproportionate assets case involving the Tamil Nadu Chief Minister, Jayalalithaa, and four other accused on Wednesday sought adjournment for four weeks to file a special leave petition (SLP) in the Supreme Court against a clarification by the Madras High Court of its earlier order.

    In the application filed under Section 309 of the Criminal Procedure Code (Cr.P.C.) before the Special Court here, the Special Public Prosecutor, B.V. Acharya, submitted that the June 20, 2005 clarification by the Madras High Court of its January 10, 2002 order (on exercising options over clubbing the cases for a single trial) was one without jurisdiction as Section 362 of the Cr.P.C. barred courts passing such orders. Citing the Harisingh Man versus Harbhajan Bhajwa case in the Supreme Court, Mr. Acharya said the apex court had held that after passing a final order under Section 482 of the Cr.P.C., the court becomes "functus officio" (something which once had life and power, but which now has no virtue whatsoever), and it cannot, thereafter, pass any further orders, including review. Besides, the clarification was passed without any notice to the prosecution.

    The Special Court, on Monday, ordered a joint trial by merging the Rs. 66.65-crores wealth case and the London hotels case, and said if the prosecution was aggrieved by the clarification it could approach the Supreme Court.

    Since the order for joint trial was based mainly on the clarification, the prosecution said it intended to recommend to the authorities concerned to challenge it before the Supreme Court. As the proposal had to be processed at different levels, it sought four weeks.

    Transfer of cases

    Mr. Acharya pointed out that the Supreme Court order on transferring the cases from Chennai to Bangalore was silent on which State Government — Karnataka or Tamil Nadu — the prosecution would have to approach. Therefore, the prosecution said it would broach the issue of filing the SLP with both governments and await their response. Even otherwise, the hearing would have to be adjourned as all parties would have to be heard before additional charges were framed. This was so because of the June 27 order. The prosecution said it required more time to make submissions regarding material for framing of additional charges.

    259 witnesses

    Maintaining that there were two separate cases, the prosecution said it had already closed its case in the Rs. 66.65-crore disproportionate wealth case and 259 witnesses had been examined.

    Though the Special Court had agreed with this contention, it had ordered a joint trial as the clarification had given discretion to the Special Court to either club the cases or hear them separately.

    All the accused opposed the prosecution's application and said they would file their objections on Saturday.

    Earlier, counsel for T.T.V. Dinakaran, the fifth accused in the merged case, said no court had taken cognisance of him and no summons had been issued directing his appearance before the court.

    "To this day, my client has not received summons from any court," Mr. Dinakaran's advocate said.

    `Issue summons'

    He urged the court to take cognisance of the matter and issue summons. The prosecution said there was no need for taking fresh cognisance as the Special Court had merged the two cases. Moreover, cognisance was for the offence and not for the offender. In case the court took cognisance of Mr. Dinakaran, it would have to take cognisance against Ms. Jayalalithaa too, as she was the first accused in the London hotels case.

    The Special Judge, A.S. Pachhapure, adjourned further hearing of the case to Saturday.

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