SC effect: Bail for Kanimozhi,4 others

All those who got bail today — Kanimozhi,former Kalaignar TV MD Sharad Kumar,Cineyug Films director Karim Morani and directors of Kusegaon Fruits and Vegetables Asif Balwa and Rajiv Aggarwal — were named in the supplementary chargesheet filed on April 25 before the special CBI court hearing the case.

The plea of the sixth applicant,former telecom secretary Siddhartha Behura,was not granted. Arguments on his bail will continue on Tuesday. The CBI has opposed his release.

On November 23,five other accused were given bail by the Supreme Court. Today’s six accused moved the high court shortly after the SC order,pleading that their bail applications — earlier scheduled to be heard on December 1 — be heard earlier.

Today’s order came as a surprise to defence lawyers,who were expecting the order to be reserved,as arguments on Behura’s bail were continuing when the court adjourned for lunch. Kanimozhi’s mother Rajathi Ammal,who had been camping in Delhi since last Friday,had taken a late afternoon flight back to Chennai.

The high court criticised the reasons given by Special CBI Judge O P Saini while denying bail to Kanimozhi on November 3. Justice V K Shali wrote that the special judge should have read “liberally” into a provision in the Criminal Procedure Code that allows exemption for women who apply for bail,and his decision not to do so was “not sustainable”.

Justice Shali noted that his court is subordinate to the Supreme Court,and cannot question the fact that the latter’s November 23 order does not mention that the accused have been charged with criminal breach of trust,punishable with life imprisonment.

“I am of the view that when the Supreme Court has reproduced the facts of the case,given the magnitude of the offence,the severity of the punishment which it entails,it has taken into note the fact of the accused persons in general being charged for an offence under Section 409 IPC or the conspiracy thereof which carries life imprisonment,” Justice Shali said in his 39-page order.

In doing so,Justice Shali agreed with counsel for Kanimozhi and senior advocate Altaf Ahmed,who submitted that the apex court was aware of all the charges against the accused and said that it is not for the high court to question the superior court’s wisdom.

The conditions of bail for the five are the same as that set by the Supreme Court on November 23.

Justice Shali went on to say that the apex court’s order is binding,and that anything less than compliance would be violative of Article 141 of the constitution.

Justice Shali also extended the parity logic,going so far as to say that that the set of accused before him were better placed to get bail. He wrote that Kanimozhi,who applied for bail under Section 437 of the Criminal Procedure Code that allows for exemption for certain categories of people like women,minors and the sick,should have been favoured for bail at the level of the trial court itself.

“If the legislature in its wisdom has chosen not to put any limitation on the power of the magistrate to grant bail to a specified category of accused persons,it was incumbent on the court to consider this provision liberally in favour of the accused person Kanimozhi by the trial court provided that there was no other factor coming against the accused to deny the grant of bail. To this extent,the order of the learned Special Judge is not sustainable.”

The court applied the same provision to Karim Morani,who applied for bail saying he was medically ill.