A Special Court on Thursday dismissed the bail plea of DMK MP, Ms Kanimozhi, and seven others accused in the 2G spectrum case.
The seven others are: Mr Siddhartha Behura, former Telecom Secretary; Mr R.K. Chandolia, personal secretary of the then Telecom Minister Mr A Raja; Mr Shahid Usman Balwa, Director of Swan Telecom (now Etisalat DB); Mr Sharad Kumar, Director and Promoter, Kalaignar TV; Mr Asif Balwa and Mr Rajiv B. Agarwal, Directors of Kusegaon Fruits and Vegetables, and Mr Karim Morani, Director of Cineyug Media and Entertainment Pvt Ltd.
In a 76-page order, the Special Judge, Mr O.P. Saini said: “The facts of the case as well as the charges levelled against the accused are of very serious nature having grave implications for the economy of the country…I am satisfied that no case for bail is made out for any of the applicants/accused.”
Rejecting Ms Kanimozhi’s bail plea, the court said she “belongs to upper echelons of the society and is also a Member of Parliament. By no stretch of imagination she can be said to be suffering from any discrimination on ground of being a woman.”
Ms Kanimozhi, the daughter of former Tamil Nadu Chief Minister, Mr M. Karunanidhi, had contended that she could be enlarged on bail and cited a special provision under law (Section 437 of the Code of Criminal Procedure) to say that being a woman, she is entitled to the benefit of this provision.
Mr Morani had sought bail on health grounds, claiming that he has already suffered two heart attacks. On whether these beneficial factors are available to Ms Kanimozhi and Mr Morani, the court said the answer is “an emphatic ‘No’.”
Referring to the medical papers on record, the court said: “It cannot be held that standard of illness of Mr Morani is so high as to categorise his custody as detrimental to health.”
It added that considering the facts and circumstances of the case, “The benefit of this beneficial provision does not accrue to them.”
The CBI had not opposed the bail plea of Ms Kanimozhi and four others (Mr Kumar, Mr Agarwal, Mr Asif and Mr Morani) saying that their case is different from that against the remaining accused as they have been named in the supplementary chargesheet.
The CBI had also said that the substantive offences with which these five accused are charged are punishable with imprisonment of five years only.
However, the agency had opposed the bail plea of Mr Balwa, Mr Chandolia and Mr Behura. It said that if one takes into account only the specific charges framed against these three, who are named as accused in the main chargesheet, it could lead to a maximum punishment of seven years, if found guilty.
No distinction between accused
However, the court said: “As such, there is no distinction between the accused charged on the basis of main chargesheet and supplementary chargesheet. There is only one chargesheet in the eyes of law.”
“‘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 grave nature, such ‘no objection’, in my humble opinion, is of no legal consequence,” the court noted.
It also said that “The theory — of the accused not being known to each other and these five accused (Ms Kanimozhi, Mr Kumar, Mr Agarwal, Mr Asif and Mr Morani) only being concerned with the passing off/facilitating the transfer of the bribe amount — has already been rejected and all have been charged with the main/umbrella conspiracy. Sections 109 (abetment) and 120B (criminal conspiracy) of the Indian Penal Code 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 accused from the case of the remaining accused.”
The court noted that all the accused in the case, including these eight who have applied for bail, have been charged with criminal breach of trust (carrying a maximum possible punishment of life imprisonment).
Security of witnesses
On the issue of the possibility of evidence being tampered with or witnesses being influenced, the court said that since this was a case of unprecedented nature, “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. In such a situation, such apprehension is always well founded.”
Significantly, the court also observed that, “One way of generating a sense of security in the mind of victim and the witnesses is to keep the accused in custody till their evidence is complete.”
Grave magnitude
The court said: “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 the alleged payment of bribe of Rs 200 crore.”
“The charge is that in granting UAS licences to the two accused companies — Swan Telecom and Unitech Wireless (Tamil Nadu) — public servants by misuse of their office, caused the companies to obtain pecuniary benefit to the tune of Rs 7,105 crore and in consideration thereof Swan Telecom paid a bribe of Rs 200 crore,” it observed.
It is alleged that the Rs 200 crore was paid by a group company of DB Realty to Kalaignar TV of Mr Kumar and Ms Kanimozhi through Kusegaon Fruits and Vegetables and Cineyug by creating documents to show it as a loan.
All the eight accused could move the Delhi High Court against the Special Court’s order, the lawyers for the accused said. The trial in the case is set to commence on November 11.