In the pre-trial hearings of the 2G Spectrum case,the court battles seem drawn around the personal liberty of the accused persons,presumed innocent until proven guilty,and the high magnitude of the allegations against them.
The tug-of-war is best illustrated in Kalaignar TV managing director Sharad Kumars question to the Supreme Court today: If former IMF chief (Dominique) Strauss-Kahn can get bail after assaulting a vulnerable hotel worker in New York,why cant I?
The court refused him bail,simply saying the Sovereign has suffered.
Here is a series of orders delivered in the past two months by both the Special Court set up for the 2G trial and the Delhi High Court.
An iPad for Asif Balwa
The judicial decisions cover instances like Asif Balwas application for an iPad to read the 80,000 pages of the chargesheet to prepare his defence,to a request by seven of his co-accused for permission to carry food from the jail canteen to a quiet corner,to a consistent denial of bail on the reasonable likelihood that the influential accused persons will influence witnesses,who are mostly their employees.
Asif Balwa,director of Kusegaon Fruits and Vegetables,on May 24 requested the use of an iPad in Tihar Jail to read the voluminous court records to prepare his defence in the case.
But three days later,Justice S Muralidhar of the Delhi High Court seemed convinced by the argument of prison authorities that Balwa could use the iPad to communicate with the outside world.
So,the court suggested Balwa find an alternative device,even though lawyer,Vijay Agarwal,argued that Tihar has no Wi-Fi coverage. Balwa is ready to even settle for a dead laptop.
The need for speed
This denial came at a critical juncture when Special Judge O P Saini had made clear through three separate orders on May 12,14 and 18 that he wanted the accused and their lawyers to quickly finish reading the records,so that the trial could commence without delay.
It is impressed upon the accused persons and their learned advocates to expedite the scrutiny of documents, the judge said on all three days.
The orders were part of a series of orders passed by Judge Saini between April 15 and May 18,which show that the judge was compelled to extend the custody of various 2G accused due to their inability to cope with the sheer number of documents and scrutinise all of them on time.
On April 15,2011,the judge recorded: Scrutiny of documents carried out in part. Put up for further scrutiny of documents on April 18,2011 and till then remand of the four accused in custody is extended. The four accused in question were former telecom minister A Raja,former telecom secretary Siddharth Behura,Rajas close aide R K Chandolia and DB Realtys Shahid Usman Balwa.
From April 27 to May 7,in separate orders,the judicial remand of the accused was extended every time by a day for the sole reason that they were unable to finish the scrutiny. These orders pertained to the extension of the judicial remand of Raja,Behura,Shahid Balwa,Chandolia,DB Realty co-promoter Vinod Goenka,senior ADAG executives Surendra Pipara,Gautam Doshi and Hari Nair,and Unitech MD Sanjay Chandra.
On April 14,Asif Balwa and and the Balwas aide Rajiv Agarwal joined the list of accused whose custody was extended.
Simple joy of eating alone
At times,the demand has been for far more simple pleasures for the accused. On April 27,Judge Saini received seven applications from Chandra,Goenka,Doshi,Nair,Pipara,Agarwal and Asif Balwa for permission to have their food in a quiet corner at Tihar. The judge asked prison officials to take a call.
They have moved separate applications praying that they may be allowed to carry food and water from the jail canteen and to bring it to judicial lock-up for eating during the day. Jail Superintendent is directed to consider the prayer as per jail manual, said the Special Court,disposing of the applications.
I am ill,grant me bail
The judicial orders reveal the failing health of some accused in jail. Piparas prolonged absence from the mandatory daily court attendance is an example. The special court summarily dismissed interim bail on April 20 to him. On May 5,the court recorded that it has got a letter and a wireless from the jail superintendent that on account of sickness,Pipara has been taken to AIIMS.
Subsequent orders of May 14 and 18 showed Pipara had not been discharged. His bail plea on health grounds was rejected by the High Court on May 23.
Pipara,incidentally,is treated as the model case of how the best medical facilities are provided to prisoners. When co-accused Karim Morani of Cineyug Films applied for anticipatory bail on health grounds,Judge Saini refused.
Moranis lawyer Siddharth Luthra argued that his client suffered from random spells of unconsciousness in stressful situations,had undergone three angioplasties since 1993,received six bypass grafts in 2007 and required re-boring of two major vessels.
Judge Saini dismissed the plea,saying that in the 15-page application for bail,only one paragraph is there in which medical condition of the accused has been referred to.
A Question of principle
In the May 24 order dismissing the latest of Shahid Balwas many bail applications,Judge Saini recorded how the accused asked him why,when he should be presumed innocent until proven guilty,he is being detained in custody as a measure of punishment.
To this,the judge replied: It has been argued that bail cannot be withheld as a measure of punishment and the court should follow the principle of bail and not jail. However,it is nobodys case that they are detained in custody as a measure of punishment.
Balwas lawyer Majid Memon said that stringent conditions for bail could be imposed on his client to take care of the apprehension that the accused will influence witnesses. But Judge Saini found the CBIs apprehension not unfounded as many of the witnesses are employed in the companies of the accused persons.
Justice Ajit Bharihoke,while dealing with the bail applications of Chandra,Goenka,Doshi,Nair and Pipara in his order of May 23,agreed with Judge Saini that there was no guarantee that influential men like the accused will not tamper with witnesses once the trial starts. They may not have known the identities of the witnesses during investigation,but certainly do know now after the chargesheet has been filed,he said.
The same reason had been applied for denying bail to Kanimozhi on May 20. Considering the magnitude of the crime and the fact that many witnesses are employees of Kalaignar TV,there is every apprehension that the witnesses may be influenced,if the accused is released on bail, Judge Saini observed in the order.
But I am a woman!
Also Kanimozhis argument that she is a woman and some consideration may be shown to her for her womanhood and,as such,she deserves to be released on bail as Section 437 CrPC provides that children,women and sick or infirm person may be released on bail was plainly rejected owing to the magnitude of the crime and allegations against her.
The judge was candid about his inability when he said,I am unable to show any consideration to her on this ground (of womanhood),though I wish I could show her some consideration,considering her extremely dignified conduct in court.
However,the Supreme Court differed with Judge Saini today,observing that Kanimozhi would be eligible for bail for her identity as a woman,but only after the charges are framed.
An Exceptional Case
To Memons query as to why bail continues to be an exception as none of the charges imposed are punishable with life sentence or death,the court reasoned that the facts of the case and allegations against the accused are of exceptional nature and the same requires no further elaboration.
At first blush,arguments of the petitioners appear to be attractive. However one cannot ignore the history of the case, Justice Bharihoke observed on May 23.
…It is evident that despite having collected prima facie evidence of their involvement in deep-rooted conspiracy… neither were they arrested by the CBI nor were they produced before the court along with chargesheet. This circumstance,in itself,gives an insight into the influence wielded by them during investigation, he added.
The entire community is aggrieved if economic offenders who ruin the economy of the state are not brought to book, Judge Saini quoted from a 2010 Supreme Court judgment in his May 24 order.