Legal experts slam order denying bail to 2G accused

The Special CBI court rejecting bail to eight accused in the 2G case, including DMK Member of Parliament Kanimozhi, is an indicator that courts are increasingly taking economic and corruption cases involving high-profile persons seriously.

The special court has clearly held that considering the gravity of the offence committed by the accused they were not entitled to be released on bail. It quoted extensively from the Supreme Court judgment relating to ‘Satyam accounting fraud case' to deny bail.

Rejecting the contention that the accused were to be granted bail as the offence was not one punishable with death or life imprisonment, the court said: “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.”

No distinction

The court also refused to draw a distinction made by the CBI in not opposing bail to those who were included as accused (Ms. 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.

It said 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.

Once the charge sheet is filed, the court can refuse bail only if it apprehends tampering of evidence or witnesses or the possibility of the accused absconding from trial. It was strenuously argued that since all the accused belong to higher strata of society and the CBI had not alleged any tampering of evidence throughout the course of investigation, they could not be denied bail merely on the basis of apprehension.

Rejecting this contention, the court noted that in one situation, a case may be simple, but the conduct of the accused may be bad and in another case, the conduct of the accused may not be objectionable, but the facts and circumstances of the case may be serious, warranting inferences of possibility of evidence being tampered with.

The court said: “This is a case of unprecedented nature. 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. In such a situation, such apprehension is always well founded and does not depend upon expression or negation by parties.”

Criticism

However, senior lawyers have criticised the special court order denying bail to the accused.

The former Union Law Minister and senior advocate, Ram Jethmalani, described the verdict as “a destruction of whole criminal jurisprudence.” He said: “These judges don't want to grant bail themselves. Possibly, they [judges] want everything to be done by the Supreme Court.”

Senior advocate Mukul Rohatgi was critical of the order saying, “This is a totally wrong order, especially for Ms. Kanimozhi and four others when the CBI had expressly said there was no objection to grant of bail.” On the court referring to the gravity of the offence, Mr. Rohatgi said: “No exception could be made by the court whether it is an ordinary offence or a grave economic offence or it is a high-profile case.”

He said such an approach by the court was illegal. “May be he [judge] is doing it because of media pressure or because the Supreme Court is monitoring the case. The court has not exercised its judicious mind in deciding the case.” Mr. Rohatgi said the order was liable to be challenged before the Delhi High Court.

Senior advocate T.R. Andhyarujina also feels that the court could not make a distinction for refusal of bail on the nature of the case.

He said: “Merely because it is a national scam, bail cannot be refused. How long an accused can be kept in jail? It looks as if the trial court is being influenced by the Supreme Court monitoring the case. This is a wrong approach. I feel the trial court will have to consider the bail on the merits of each case.”

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