In his judgment on the 2G case, special judge O P Saini rapped the CBI for not “cross-examining or reexamining” several witnesses over the transfer of Rs 200 crore, allegedly as illegal gratification to then telecom minister A Raja for allocation of spectrum. The prosecution’s understanding of law regarding cross-examination or reexamination of witnesses, the judge observed, is “contrary” to observations of the Supreme Court.
The judge said the prosecution did not reexamine witnesses who had described the transaction as bona fide, and it did not counter their narrative on the money being transferred as loan, or on irregularities in documentation. While stating there is no merit in the prosecution allegations, Saini said, “The end result is that the prosecution failed to put its case to the witnesses indicating that it gave up its case during examination of witnesses itself.”
The prosecution’s case was that Rs 200 crore was routed as loan through Dynamix Realty, a partnership firm of DB Group and owned by Shahid Balwa and Vinod Goenka; Kusegaon Fruits and Vegetables; Cineyug Films; and Kalaignar TV in which DMK leader Kanimozhi is a director. It said a “circuitous route” was used to conceal the real nature of the transaction which, it alleged, was to pay Rs 200 crore to Raja through Kalaignar TV.
Calling several employees of all four companies as witnesses, the prosecution conducted examination-in-chief — questioning by a party that has called them to give evidence. Later the defence counsel conducted a cross-examination. At this stage, the prosecution has the powers to reexamine them — or cross-examine them if they turn hostile after the examination-in-chief.
The entire 2G case had centred around this transaction. It was alleged that Swan Telecom was issued letters of intent for 13 service areas bypassing several rules and its directors paid illegal gratification.
When to reexamine
In a written note dated April 28, 2017, the prosecution submitted its views on cross-examination and reexamination. Relevant parts of Note XIV (Part A) were reproduced in the judgment. According to the judgment, the prosecution note stated reexamination (by the party that called the witnesses) is “confined to the explanation of matters referred in cross-examination. Thus, only where matters arise in cross-examination, which require explanation, can reexamination be conducted. In other words, only where there is a variance between the examination-in-chief and the cross-examination or where two versions had been given in cross examination, could reexamination be conducted for the purposes of explanation.”
On cross-examination, the note said, “Only where a witness gives evidence in court for the prosecution, which is contrary to his statement under Section 161 CrPC, can the prosecution seek to cross examine the witness.”
The court disagreed. “The above understanding of law by the prosecution is contrary to law laid down in an authority reported as Rammi @ Rameshwar vs State of MP, (1999) wherein Supreme Court observed about the scope of reexamination,” judge Saini observed. His judgment reproduces paragraphs from the Supreme Court observation that said there is an “erroneous impression” that reexamination should be confined to “clarification of ambiguities” after cross-examination. “No doubt, ambiguities can be resolved through reexamination. But that is not the only function of the reexaminer. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination, he has the liberty to put any question in reexamination to get the explanation,” the Supreme Court had observed.
“…If the public prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination,” Saini quoted another part of the SC observation.
Judge Saini went on to cite observations that even if the public prosecutor feels that new matters should be elicited from the witness, he can do so, in which case the only requirement is that he must secure permission of the court. “An efficient public prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in reexamination. There is no warrant that reexamination should be limited to one or two questions. If the exigency requires any number of questions can be asked in reexamination,” the Supreme Court had said.
AMONG THOSE NOT REEXAMINED…
Atul Pancholi (Kusegaon Fruits & Vegetables)
Deposed in examination-in-chief and cross-examination that Rs 209 crore from DB Realty was a bona fide loan transaction. Court said this version was not questioned by the prosecution. Witness identified signatures of Asif Balwa and Rajiv Aggarwal (owner of Kusegaon) on cheques relating to transfer of Rs 206.25 crore to Cineyug. Court said the prosecution did not ask about the purpose of issuing the cheques. “Prosecution was happy getting the signatures identified.”
Satish Aggarwal, DB Realty: Deposed that loan was reflected in draft prospectus of IPO to SEBI. Court said prosecution did not put a single question as to why amount was transferred to Kusegaon.