The glimmer of hope from the CBI not opposing bail in the 2G spectrum case to Rajya Sabha member Kanimozhi, who was the cynosure of all eyes in the packed courtroom here on Thursday, faded with judge O.P. Saini dismissing the investigating agency's stance as of “no legal consequence.”
The CBI said it would not oppose bail to Ms. Kanimozhi and four other accused persons — Kalaignar TV director Sharad Kumar, film producer Karim Morani and Kusegaon Realty promoters Rajeev Aggarwal and Asif Balwa — on the ground that the individual charges against them were punishable only with five years' imprisonment and that they were named only in the supplementary charge sheet.
The special court said: “No-objection by the prosecution to the bail plea of an accused may carry some weight in the facts and circumstances of a given case, but where the allegations and charges levelled against the accused are of a grave nature, such no-objection is of no consequence. There is no doubt that the instant case is a case of grave magnitude, resulting in huge pecuniary benefits to two accused companies due to criminal misconduct, breach of trust, etc, committed by the accused public servants, apart from alleged payment of a bribe of Rs. 200 crore.”
Mr. Saini also disregarded Special Public Prosecutor Uday Lalit's submission that the “umbrella charge” of criminal conspiracy to commit breach of trust, cheating, forgery, use of forged documents, payment/receipt of illegal gratification or a valuable thing for a consideration known to be inadequate, and criminal misconduct, against all the accused, need not be considered at this stage.
The court said: “Criminal conspiracy is an independent offence and is required to be punished separately. Different accused have been charged differently with the substantive offences depending upon the role played by each in the transaction of the crime. The theory of the accused not being known to each other and these five applicants [Ms. Kanimozhi and four others] only being concerned with the passing off/facilitating the transfer of the bribe amount of Rs.200 crore from DB Realty to Kalaignar TV has already been rejected and all have been charged with the main/umbrella conspiracy. Sections 109 (abetment) and 120B (conspiracy) IPC do not make any distinction between abettors, conspirators, and actual participants in a criminal transaction. As such, I do not find any ground to distinguish the case of these five applicants from the case of the remaining accused.”
On the defence submission that with the framing of charges circumstances changed in favour of these five accused, Mr. Saini said: “However, I find that after the framing of charge, the case has crystallised against the accused in clear terms, though prima facie, and as such, has moved to a higher pedestal, that is, from the stage of suspicion, or grave suspicion, it has reached the higher stage of prima facie acceptability.”
Mr. Saini pointed to the addition of Section 409 IPC (criminal breach of trust) as an alternative charge, punishable with imprisonment for life or a term extending up to 10 years.
Despite the CBI not raising fears that witnesses could be influenced or intimidated, except in the case of the former Telecom Secretary, Siddarth Behura, the judge noted: “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.”
Mr. Saini referred to the Delhi High Court ruling in the Mukesh Jain vs CBI case that those accused of corruption charges deserved no sympathy and that such offences were “preceded by a cool, calculated, and deliberate design with an eye on personal gains.” This order applied to the circumstances of the 2G case with “full force,” the judge said.
On the contention of Mr. Morani that he was a heart patient, and was thus enabled to avail himself of the provisions of Section 437 of the Criminal Procedure Code while seeking bail, the judge said: “The next question is whether these beneficial factors are available to Mr. Karim Morani in this case. The answer is an emphatic ‘No'.”
This provision in law applied only to persons for whom custody might prove detrimental to their health. The “standard” of Mr. Morani's illness is not so “high as to categorise his custody as being detrimental to his health,” Mr. Saini said.
On how long the accused persons could be kept in custody, the court said since the trial was to be conducted on a day-to-day basis, they could seek bail after the statements of witnesses were recorded.
After the bail petitions were dismissed, a grim silence fell on the courtroom, where Ms. Kanimozhi's supporters and DMK leaders including T.R. Baalu and T.K.S. Elangovan had congregated.
Ms. Kanimozhi took exception to reporters standing by her side to observe her reaction to the unfavourable order. “What are you all doing here? Are you also not human beings? Can't you see we are having private consultations,” she asked. While her mother Rajathi Ammal cried on hearing the order, Ms. Kanimozhi's husband, G. Aravindan, was visibly upset at the turn of events.
The trial begins on November 11.