A special court on Wednesday allowed CBI plea to summon additional witnesses and for producing documents before it in 2G spectrum allocation scam trial, observing that it appeared to be “essential” for a just decision in the case. Special CBI Judge O P Saini, however, cautioned the agency that “fragmentary” filing of documents do cause anxiety and uncertainty in a trial and the prosecution should keep in mind that the Indian legal system does not cleave to be theory of “hound-the-accused-at-all-cost-by-all-means-fair-or-foul”.
“The prosecution is endeavouring to prove its existing case with the help of material which has come to its notice subsequently,” the judge said. “In this view of the matter, the examination of these witnesses appears to be essential to the just decision of the case as the movement of amount of Rs 200 crore would become more explicit and role of accused Kanimozhi Karunanidhi in the running of Kalaignar TV (P) Limited would also stand further clarified, amounting to proper proof of existing facts,” the court said.
The court, in its 36-page order, also said that allowing the CBI plea would be in the interest of both the accused as well as the prosecution and it would lead to a “just decision” of the case. It observed that it would not cause any prejudice to the accused and would rather help in determination of the truth.
Cautioning the CBI, the court said that in this case, the prosecution has been allowed to file documents 14 times while the accused has also not “lagged behind” as it has competed with the agency and has been allowed to file documents running into about eight full size steel boxes. “But prosecution should remember that Indian legal system does not cleave to be theory of hound-the-accused-at-all-cost-by-all-means-fair-or-foul.
An accused is also entitled to certain rights and to a fair trial. He is not a quarry to be pursued, caught and killed. He is deemed to be innocent until proved guilty and is entitled to a fair trial,” it said. The CBI had sought to summon Enforcement Directorate Deputy Director Rajeshwar Singh, its Assistant Director Satyendra Singh, Under Secretary in Ministry of Information and Broadcasting Navil Kapur and bank official D Mani.
Apart from these four persons, the agency had sought to recall General Manager (Finance) of Kalaignar TV (P) Ltd G Rajendran, who had earlier deposed as a witness in the case, for further examination besides placing on record some more documents.
The court, in its order, said that though the CBI has been successful in making out a case that the documents sought to be placed on record were essential for a just decision of the case but such practice cannot go on endlessly. “It is necessary that the accused on trial should not have the feeling that he is being subjected to a trial of uncertain nature. The quest for truth cannot become a lifelong activity, and if it is so, no criminal trial would ever come to an end,” it said.
The court also said that investigation in the case is going on since October 21, 2009 and this is sufficient time for any probe to be completed. “Early completion of investigation and speedy trial are essential features of our legal system. Unnecessary delay in trial causes mental, physical and financial strain on the accused as well as on the system, even if the steps taken by the parties may be broadly characterized to be within the four corners of law but still it is a thing to be avoided,” it said and hoped CBI would take a note of it and stop such practice.
Allowing the agency’s plea, the court said that examination of the two ED officers pertains to the facts which were already on record while the remaining three witnesses would depose about facts which are stated to have come to the knowledge of CBI subsequently relating to Kalaignar TV (P) Ltd.
The court also dismissed the arguments of defence counsel that CBI was getting precedence in such matters, saying such prayer of defence has been allowed 24 times on filing of plea and at least 18 times during examination of witnesses while the agency has been allowed to do so 14 times. “The submission (of defence counsel) is contrary to record and deserves to be laciniated and rejected out-rightly being contrary to record,” it said adding, “the grievance that the prosecution is getting precedence in these matters is not only contrary to record but is mischievous also and the same is accordingly rejected”. It also noted that as the witnesses sought to be called by the CBI pertain to the documents and facts already on record it does not amount to curing any lacunae or fundamental defect in the case.
The court also observed that there was no question that the accused would be prejudiced as they would also get an opportunity to cross-examine these witnesses and would get the benefit of leading additional defence evidence. “…it is more than amply clear that these witnesses would not place on record any fact which may amount to addition of new case or retrial of the case but would place on record material pertaining to facts already existing on record.
“A new case is made out when fresh allegations are added by washing out earlier allegations or substantially altering already existing allegations. Placing of further material in a case cannot be prevented by citing this reason,” it said. It also said that when the entire things were limited and closely connected with the subject matter of trial, there can be no question of a “fishing or roving inquiry”.
“When things are amply clear, it cannot be said by any stretch of imagination that the (CBI) application is bereft of details and the examination of witnesses consequent to that may lead to fishing or roving inquiry,” it said. “The documents sought to be placed on record by these witnesses appear to be necessary and desirable and relevant also. When the material sought to be placed on record is inextricably connected with the facts of the case, it cannot be said that the same is outlandish and as such not relevant,” the judge observed.
Regarding the two ED officers, the court noted that they investigated the transaction of Rs 200 crore under Prevention of Money Laundering Act and they must have come across certain facts, which cannot be prejudged or appreciated in advance, relevant to this case. “The evidence to be tendered by the remaining three witnesses is on a different footing, that is, they would speak about the affairs of Kalaignar TV (P) Ltd and role of Kanimozhi Karunanithi therein. When the evidence would be tendered, its admissibility would be judged as per provisions of Evidence Act,” it said.
“Accordingly, I am inclined to allow the application and the same is allowed. Navil Kapur, Under Secretary, TV (INSAT), Ministry of Information and Broadcasting and D Mani, Chief Manager in July/August 2007, Kadambakkam Branch, Indian Bank, Chennai or its present branch incharge are directed to produce the documents listed against their name in the application within 15 days of the order before the court, as the crime under trial is of special nature,” the judge said.
The court had on November 11 reserved its order after hearing the arguments on the plea which was opposed by former Telecom Minister A Raja, DMK MP Kanimozhi and others who are facing trial in the case.