Counsel assails CBI not opposing bail pleas of Kanimozhi, four others

The former Telecom Secretary Siddhartha Behura on Tuesday tore into the CBI for not opposing the bail pleas of five other accused in the 2G spectrum scam, including DMK Rajya Sabha member Kanimozhi, alleging that this indicated the “intrusion of political influence in the legal process,” after the investigating agency opposed his bail plea on the ground that he was an “influential person” capable of “winning over/threatening vital witnesses”.

“The prosecution is making a distinction [among the accused]. It shows there is intrusion of political influence in the legal process. It is a colourable exercise of power. If the prosecution has conceded bail to Kanimozhi and others, then all the accused should be treated equally. Law makes no distinction among the accused,” counsel Aman Lekhi told the CBI special court.

Pointing out that there was no allegation of bribery against his client or that he decided on spectrum pricing, which ultimately led to a loss to the exchequer, Mr. Lekhi — referring to Ms. Kanimozhi, Sharad Kumar, Asif Balwa, Rajeev Aggawal and Karim Morani — through whose companies Rs.200 crore travelled from Dynamix Realty as alleged kickbacks, said: “Those who had a share in the booty are let off. Who are in Kalaignar [TV], Cineyug, and Kusegaon?”

Opposing Mr. Behura's bail plea, the CBI said the former bureaucrat was “an influential person and there is every apprehension of his tampering with evidence and winning over/threatening of vital witnesses.” The CBI had not raised this objection in its replies to the bail pleas of Ms. Kanimozhi, Mr. Shahid Balwa and five other accused.

Taking exception to this, Mr. Lekhi said: “We have as accused — politicians, film industry people, big corporate honchos — and we have poor Mr. Behura, the oldest of the lost, and a retired government servant.” Wondering how Mr. Behura was more influential than the other accused having “access” to the government, Mr. Lekhi said: “Anyone who looks at the list of the accused knows who is the most influential. If the most influential in the case can't affect the integrity of the trial, this cannot be held against Mr. Behura.”

Gravest of the charges

Special Public Prosecutor U. U. Lalit rebutted Mr. Lekhi's arguments, stating the first charge of criminal conspiracy (120B of the Indian Penal Code) to commit breach of trust, cheating and forgery was an “all-inclusive charge, a general charge” against all the accused, while the second charge of criminal breach of trust (409 IPC) against Mr. Raja [former Telecom Minister] and Mr. Behura were the “gravest of the offences.”

While circumstances changed after the framing of offences, these changed to the “detriment” of Mr. Behura, and not to his “benefit,” as he was now triable under 409 IPC, which carries a maximum punishment of life imprisonment, Mr. Lalit said.

On Mr. Lekhi's contention that the prosecution could not segregate the accused based on the charges against them, Mr. Lalit said: “As the prosecution, we feel there is need to have a distinction between the accused on the basis of individual charges, and on this basis if there is room for a favourable look at the accused, we advocate this.”

Reverting to Mr. Lalit's submissions, Mr. Lekhi said the Criminal Procedure Code did not talk of “general” or “individual” charges. “The general charge in this case, 120B read with 409 IPC, carries a punishment against all the accused, as serious as the individual charges against Mr. Behura. The 409 charge is not exclusive to Behura. The charge taints all accused. It is not that Section 120B read with 409 IPC caries less punishment. It carries as much punishment as 409 IPC alone.”

On the prosecution's contention that the liability under 409 IPC against Ms. Kanimozhi and others was “vicarious,” Mr. Lekhi said the Indian Penal Code did not distinguish between vicarious and individual liability. Those charged with conspiracy should be “similarly treated.”

Mr. Lalit concluded his submissions on a sombre note, emphasising that he did not “hold a brief” for any of the accused. “I stand here as public prosecutor; as purely an impartial observer; and to place the facts of the case before the court. When I saw the charges, I thought a concession could be made. I felt a distinction could be made among accused. If you [the court] feel my concession is misplaced, I leave it to the conscience of the court to decide on the matter.”

The court reserved order on Mr. Behura's bail plea for Thursday. It will be passed along with the orders on the bail pleas of seven other accused.

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