Delhi High Court
Sharad Kumar vs Cbi on 28 November, 2011
Author: V.K.Shali
* HIGH COURT OF DELHI: NEW DELHI
Date of Decision : 28.11.2011
1. Bail Appl. No.1565/2011
SHARAD KUMAR ...... Petitioner
Through: Mr. Altaf Ahmed, Sr.
Adv. and Mr.R.Shanmugasundara,
Sr.Adv. with Mr.V.G.Pragasam,
Mr.S.J.Aristotle, Mr.Sudershan
Rajan, Advs.
Versus
CBI ...... Respondent
Through: Mr. Mohan Parasaran,
ASG with Ms.Sonia
Mathur, Standing
Counsel for CBI with IO
DSP Rajesh Chahal.
2. Bail Appl. No.1567/2011
KANIMOZHI KARUNANITHI ...... Petitioner
Through: Mr. Altaf Ahmed, Sr.
Adv. and
Mr.R.Shanmugasundar
a, Sr.Adv. with
Mr.V.G.Pragasam,
Mr.S.J.Aristotle,
Mr.Sudershan Rajan,
Advs.
B.A. Nos. 1565-1568/2011 Page 1 of 39
Versus
CBI ...... Respondent
Through: Mr. Mohan Parasaran,
ASG with Ms.Sonia
Mathur, Standing
Counsel for CBI with IO
DSP Rajesh Chahal
3. Bail Appl. No.1564/2011
KARIM MORANI ...... Petitioner
Through: Mr.Siddharth Luthra,
Sr. Adv. with
Mr.Sandeep Kapur,
Mr.Shivek Trehan and
Mr.Udit Mehdiratta,
Advs.
Versus
CBI ...... Respondent
Through: Mr. Mohan Parasaran,
ASG with Ms.Sonia
Mathur, Standing
Counsel for CBI with IO
DSP Rajesh Chahal.
4. Bail Appl. No.1566/2011
RAJIV AGARWAL ...... Petitioner
Through: Mr.N. K. Kaul, Sr. adv.
with Mr.Gurpreet, Adv.
B.A. Nos. 1565-1568/2011 Page 2 of 39
Versus
CBI ...... Respondent
Through: Mr.Mohan Parasaran,
ASG with Ms.Sonia
Mathur, Standing
Counsel for CBI with IO
DSP Rajesh Chahal
5. Bail Appl. No.1568/2011
ASIF BALWA ...... Petitioner
Through: Mr.Vijay Aggarwal &
Mr. Gurpreet Advs.
Versus
CBI ...... Respondent
Through: Mr.Mohan Parasaran,
ASG with Ms.Sonia
Mathur, Standing
Counsel for CBI with IO
DSP Rajesh Chahal
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
B.A. Nos. 1565-1568/2011 Page 3 of 39
V.K. SHALI, J.
1. These are five bail applications of Asif Balwa (A-13),
Rajiv B.Aggarwal (A-14), Karim Morani (A-15), Sharad
Kumar (A-16) and Kanimozhi Karunanithi (A-17) for
grant of regular bail in respect of 2G Spectrum Scam
case, which were registered vide RC DAI 2009 A 0045
by the CBI. All these applications are disposed of by a
common order as they are interconnected and,
moreover, the stand of the CBI in all these applications
is common.
2. Briefly stated that the facts of the case are that on
21.10.2009, Anti Corruption Branch of CBI had
registered the aforesaid FIR on the allegations of
criminal conspiracy and criminal misconduct against the
unknown officials of Department of Telecommunications,
Government of India and some unknown private
persons/companies and others under Section 120B IPC
and under Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988 in respect of
allotment of Letters of Intent, Unified Access Services
(hereinafter referred to as „UAS‟) Licenses and 2G
Spectrum by the Department of Telecommunications.
CBI had filed the first charge sheet on 02.04.2011 in the
Court of learned Special Judge, Patiala House Courts,
New Delhi against A.Raja, the then Minister of
Communications and Information Technology (A-1),
Siddhartha Behura, the then Secretary, Telecom (A-2),
R.K.Chandolia, the then P.S. to the Minister (A-3),
Shahid Balwa and Vinod Goenka, Directors, M/s Swan
Telecom Pvt. Ltd. (A-4 and A-5 respectively). M/s Swan
Telecom Pvt. Ltd (A-6), Sanjay Chandra, Managing
Director, M/s Unitech Wireless Tamil Nadu Ltd. (A-7),
M/s Unitech Wireless Tamil Nadu Ltd. (A-8), Gautam
Doshi, Group Managing Director of Reliance, ADA Group
(A-9), Surendra Pipara, Group President of Reliance,
Anil Dhirubhai Ambani Group (A-10), Hari Nair, Sr. Vice
President of Reliance, ADA Group (A-11) and M/s
Reliance Telecom Ltd. (A-12).
3. A supplementary charge sheet was filed in respect of
this very FIR on 25.4.2011 in the Court of learned
Special Judge for offences under Section 120B IPC read
with Section 7/11/12 of the Prevention of Corruption
Act, 1988 against Asif Balwa (A-13) of M/s Kusegaon
Fruits & Vegetables Pvt. Ltd., Rajiv B.Agarwal (A-14),
Director, Kusegaon Fruits & Vegetables Pvt. Ltd., Karim
Morani (A-15) of M/s.Cineyug Media & Entertainment
Pvt. Ltd., Sharad Kumar (A-16), Director/Promoter of
M/s.Kalaignar TV Pvt. Ltd. and Kanimozhi (A-17)
Promoter/Stakeholder of M/s Kalaignar TV Pvt. Ltd. In
addition to this, the charge sheet also named A-1, A-4
and A-5.
4. An attempt was made by A-16 and A-17 to get regular
bail before the Court of Special Judge and the High
Court, which proved to be unsuccessful, whereupon
SLP(Crl.) Nos.4584-4585/2011 were filed by them
before the Supreme Court in which order was passed on
20.06.2011, dismissing the SLPs but giving the liberty
to the accused persons to renew the applications for bail
after framing of the charges. Similar attempt had been
made by some other accused persons but I am not
referring to the same as nothing turns on it. The orders
on the SLP‟s of A-16 and A-17 have been referred, by
way of sequence of important events, which took place.
5. All the petitioners renewed their applications for grant of
regular bail in terms of the liberty granted by the
Supreme Court after framing of the charges on
22.10.2011, but these applications were also rejected
by the learned Special Judge, which lead to the filing of
the present bail applications before this Court.
6. In the meantime, Supreme Court in another batch of
Criminal Appeal Nos.2178 to 2182 of 2011, arising out
of the SLP(Crl.), pending before it, passed orders on
23.11.2011, granting regular bail to A-6, A-8, A-9, A-10
and A-11, who were sent for trial by virtue of the first
charge sheet.
7. Though, the present batch of bail applications were
listed for hearing on 01.12.2011, however, on account
of the applications of the co-accused having been
allowed by the Supreme Court and the applications on
behalf of the accused having been filed, the date of
hearing was preponed to 25.11.2011 from 01.12.2011.
8. It has been contended by Mr. Altaf Ahmed, the learned
senior counsel appearing for Sharad Kumar and
Kanimozhi, that in view of the orders of the Supreme
Court in Sanjay Chandra‟s case (supra) granting them
regular bail in respect of the aforesaid FIR, the present
petitioners are placed on a much better footing, and
therefore, they also deserve to be enlarged on bail. The
learned senior counsel has handed a comparative chart
of charges, which were framed against Sharad Kumar
and Kanimozhi in comparison to the other accused
persons, who were granted bail by the Apex Court. It
was contended that the charges against Sharad Kumar
and Kanimozhi were much milder and carrying lesser
punishment than the one in respect of which the bail
was granted by the Apex Court. It was further
contended that this was in addition to the common
charges, which were framed against all the 17 accused
persons. To give an over-view of comparison of these
charges, I deem it proper to reproduce the comparative
table of the charges given by the learned senior
counsel.
Substantive Individual Charges
Name Charges Name Charges
Accused granted bail Accused seeking bail
Sanjay Section 420 r/w Kanimozhi Section 12 r/w section
Chandra 120B IPC Karunanithi 7 in the alternative
(A-7) (A-17) Section 11 of PC Act
r/w 120 B IPC (5
years)
Vinod Section 420 r/w Sharad Section 12 r/w Section
Goenka 120 B, Kumar 7 or in the alternaitive
(A-5) (A-16) Section 11 of P.C. Act
Section 12 r/w r/w 120 B IPC (5
section 7 or in years)
the alternative
Section 11 of Section 193 r/w 120 B
P.C. Act r/w IPC (7 years)
120 B IPC
Section 193 r/w
120 B IPC
Gautam Section
Doshi 109/420 r/w
(A-9) 120 B IPC
Hari Nair Section
(A-10) 109/420 r/w
120 B IPC
Surendra Section
Pipara 109/420 r/w
(A-11) 120 B IPC
Charges Common to All 17 Accused
Section 120B r/w 409/420/468/471 IPC and sec. 7 or in the
alternative sec. 12 and 13(2) of the P.C. Act, 1988.
9. Based on the aforesaid comparative table, it was
contended by Mr.Ahmed, learned senior counsel, that
since the maximum sentence in respect of which the
petitioners have been charged is only five years in
comparison to the seven years of punishment which
could be imposed on the accused Sanjay Chandra and
others, who were granted bail, therefore, on the
principle of parity, the petitioners deserve to be
extended the benefit of grant of bail.
10. The second submission of the learned senior counsel is
that the trial Court had taken a wrong view both earlier
as well as now when it rejected the application for grant
of regular bail by referring to a great deal of alleged
planning committed by the accused persons and the
magnitude of the offence. Similar reasoning was given
by the High Court but the Supreme Court has not
approved the grounds for rejection of the bail
applications of Sanjay Chandra and others as convincing
and if that be so, on the same analogy, the petitioners‟
bail applications could not be rejected by the learned
Special Judge afresh.
11. The third submission of Mr.Ahmed, learned senior
counsel, is that admittedly this is a case where there is
no apprehension of the petitioners fleeing from the
processes of law and tampering with the evidence more
so when the substantive evidence, which is sought to be
adduced by the CBI against the present petitioners,
happens to be documentary evidence, which the
petitioners themselves are relying in order to prove
their defence that the amount of Rs.200 crores, alleged
to have been received by Kalaignar TV, was a loan. It is
contended that as a matter of fact it was a genuine loan
transaction between M/s.Cineyug Media and Kalaingar
TV and which amount actually stood repaid in the month
of February, 2011, therefore, there was absolutely no
question of petitioners either tampering with the
evidence. It was further contended that this fact is
fortified by the fact that even the CBI did not have any
objection for the grant of bail to the present petitioners
in respect of the aforesaid offences and yet this plea of
the CBI was not accepted. It is contended that the
learned Special Judge has erroneously observed that the
petitioners are highly placed and influential persons, and
therefore, there is a likelihood of their influencing the
witnesses, while as there was absolutely no prima facie
evidence or much less likelihood in this regard.
12. Lastly, Mr.Ahmed, the learned senior counsel, has
contended that the Apex Court has granted bail to the
five accused persons in this very FIR taking cognizance
of the fact that the accused are charged of economic
offence of huge magnitude and if proved, it may
jeopardize the economy of the country, yet at the
same time, the Court observed that it cannot lose the
sight of the fact that the charge sheet has already been
filed and charges have been framed and keeping in view
the voluminous nature of documents and the number of
witnesses, which are to be examined by the
prosecution, it will not be conducive to keep the accused
persons incarcerated indefinitely during the period of
trial, when there is no serious challenge to their fleeing
from the processes of law or tampering with the
evidence or not subjecting themselves to such orders as
the Court may pass from time to time. It was also
contended that the Supreme Court has reiterated the
denial of bail to an accused has to be done as an
exception and for cogent and sound reasons, as it
affects his right to liberty guaranteed under Article 21 of
the Constitution.
13. While going through the order of the Supreme Court in
Sanjay Chandra‟s case (Supra), it was pointed out by
the learned senior counsel Mr.Ahmed that there was no
mention of Section 409 IPC in para 13, which carries life
imprisonment. It was said that it was an inadvertent
omission. Similarly, in para 25 of the order also, the
maximum punishment shown is seven years, while as
Section 409 IPC simpliciter or conspiracy to commit the
said offence under Section 409 IPC carries
imprisonment for the principal offence, which would be
life. It was asked from the learned senior counsel
whether this Court notwithstanding this fact could
proceed ahead with the decision on the bail applications
of the petitioners on the assumption that the Supreme
Court has taken into consideration the offence under
Section 409 IPC independently or read with Section
120B IPC as one of the offences with which co-accused
Sanjay Chandra and others were charged, yet granted
them bail?
14. The learned senior counsel contended that the Supreme
Court has dealt with the applications of Sanjay Chandra
and others as a whole while considering the enormity of
charges and the magnitude of the alleged scam and yet
granted bail to the accused. Therefore, this Court
cannot assume or presume that Section 409 IPC was
not in the knowledge of the Court yet bail was granted.
The learned senior counsel did not attach any
significance to this omission and wanted the Court to
take note of the charges against the accused persons
read as a whole since the Apex Court has dealt with the
charges as a whole and not individual charges of the
accused.
15. It was in this background, the learned senior counsel
placed reliance in Assistant Collector of Central Excise,
Chandan Nagar, West Bengal Vs. Dunlop India Ltd. &
Ors., (1985) 1 SCC 260 and M/s.Bayer India Ltd. &
Ors. Vs. State of Maharashtra & Ors., (1993) 3 SCC 29
to contend that by virtue of Article 141 of the
Constitution, the orders and the directions, which were
passed by the Apex Court in Sanjay Chandra‟s case
(supra) are binding on this Court in order to maintain
„hierarchical system of Courts‟.
16. So far as, Kanimozhi‟s case is concerned, it was also
argued by Mr. Ahmed, the learned senior counsel that in
her case by virtue of Proviso to Section 437, if the
accused is a woman, she is entitled to a bail even if the
offence, which is alleged to have been committed by her
carries life imprisonment, as this is the mandate of the
legislature, a woman, a sick person and a person under
the age of 16 has been treated as a separate Class in
itself and given special treatment. It is further
contended that if this limitation has been removed in
the case Magistrate, obviously, this Court being a
Superior Court does not suffer from any such limitation
also and it has much wider powers.
17. So far as the Karim Morani‟s case is concerned,
Mr.Luthra, learned senior counsel has adopted the
arguments urged by Mr.Ahmed, the learned senior
counsel and added further that so far as Karim Morani
(A-15) is concerned, he is also seeking bail on the
medical grounds. He has contended that the
applicant/Karim Morani (A-15) has a history of coronary
disease and has stated to be suffering from a condition
called Ecstasia. It is alleged to be a condition because of
which the applicant is stated to have undergone three
Angioplasties in the year 1993, 1997 and 1998 and an
open heart surgery in the year 2007, wherein he has
received 6 bypass grafts as well as re-boring of two
major vessels. It has been further stated that his heart
only pumps 45% to 50% of blood as compared to a
healthy person. Apart from this, there are number of
other diseases like Arthritis in knees, lumber spondylitis,
cervical spondylitis etc., which, in my view, are not very
serious and life threatening but the condition of the
heart although presently is stable and is not an
immediate cause of concern, however, it is certainly a
condition which can get out of control because of stress
and lack of proper medical care, if the petitioner is kept
incarcerated during the period of trial which is likely to
be fairly long, keeping in view the voluminous record
and the number of witnesses to be examined.
18. Mr.N.K.Kaul, learned senior counsel, who appeared for
the petitioner, Rajiv Agarwal, has also supplemented the
submissions made by Mr.Ahmed, learned senior counsel
and contended that so far as the CBI is concerned, as it
did not have any apprehension regarding the tampering
of evidence or the accused persons fleeing from the
processes of law, the continued incarceration of the
petitioner was tantamounting to denial the benefit of
bail by way of punishment for the offences of which he
was charged, though they are yet to be proved against
the petitioner. It was contended that the Apex Court has
clearly in Sanjay Chandra‟s case (supra) observed that
nobody should be deprived of his liberty only on the
belief that he will tamper with the evidence, if left at
liberty except in "most extraordinary circumstances".
He has also drawn the attention of the Court to the
various paras in the order of the Apex Court and
observed that though the discretion to grant bail is with
the Court but it has been observed that it has to be
exercised with a great care and caution by balancing the
valuable right to liberty of an individual and the interest
of the society in general.
19. Mr.Vijay Aggarwal, the learned counsel, who is
appearing for Asif Balwa (A-13), has also adopted the
arguments of the previous learned senior counsel and
also cited couple of orders passed by the Apex Court in
the matter of bail. These are Utsav Bhasin Vs. State
(NCT of Delhi) passed in SLP(Crl.) No.524/2009 and
Kamaljit Singh Vs. State of Punjab and Anr., (2005) 7
SCC 226. Since these orders are not giving the facts of
the case and they are very short orders, I do not feel
that the learned counsel can get any help by referring to
the said two orders.
20. I have carefully gone through the submissions made by
the learned senior counsel for the petitioners as well as
the order of the Supreme Court in Sanjay Chandra‟s
case (supra).
21. At the outset, the order of the Supreme Court has dealt
with the previous judgments on the subject and
reiterated the principles of law, which the Court has to
bear in mind, while dealing with the application for grant
of bail. One principle feature of this order, which is
noticeable, is that it has put a great deal of emphasis on
the personal liberty of the under trial, while considering
the bail applications, which principle seem to have been
obscured by the passage of time by Courts. To sum,
these principles are reiterated as under:-
(a) There is a presumption of innocence in favour of
the accused till he is found to be guilty.
(b) The bail is the rule and denial thereof is the
exception. For the purpose of denial of the bail
there must be extraordinary circumstances
necessarily meaning that bail ought not to be
denied to an accused only on the ground of
general sentiments of the community as it impairs
the right to liberty guaranteed to an accused.
(c) While considering the grant of bail, both the
factors, namely, the seriousness of charges and
the severity of punishment which the offence
carries must taken into consideration.
(d) The bail ought to be granted in a case where there
are no chances of the accused fleeing away from
the processes of law or in other words, the
accused, who is released on bail must be readily
and willingly available to submit himself to the
custody of the Court at any given point of time.
(e) The grant of bail ought not to be denied only on
the perceived apprehension by the Court that the
petitioner, if restored to a liberty, he will tamper
with the evidence. There must be some prima
facie evidence on record or reasonable and
justifiable grounds to believe that in case the
benefit of bail is extended to an accused he is
going to misuse his liberty or so as to create
conditions which are not conducive to hold a fair
trial.
22. Seen in the aforesaid backdrop, the question which
arises for consideration is as to whether the petitioners
who are charged for an offence of conspiracy under
Section 120B IPC read with Section 409 IPC apart from
other offences etc., which carry life imprisonment ought
to be released on bail notwithstanding the fact that the
order of the Apex Court is silent about the life
imprisonment which the offence carries. In this regard,
I feel merit in the contention of Mr. Ahmed, the learned
senior counsel for the petitioners that although the Apex
Court order does not find the mention of the word 409
IPC or the factum of life imprisonment which could be
imposed for the said offence in the order, but it was
cognizant of the fact that the all co-accused persons in
the bail applications which were under its consideration
were charged so. In addition to this, while dealing with
the facts of the case in the batch of applications of
Sanjay Chandra‟s case (supra) it had taken the charges
against all the co-accused as a whole and not individual
charges, therefore, if that be the position, this Court
ought not to deny the bail to the petitioners on account
of the omission, though inadvertent, in the order of the
Apex Court. 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 of the
fact of the accused persons in general being charged for
an offence under Section 409 IPC or the conspiracy
thereof which carry life imprisonment. If despite the
aforesaid facts, the Supreme Court has released the co-
accused persons Sanjay Chandra‟s case (Supra) on bail,
the said benefit cannot be denied to the petitioners on
the grounds of parity. Moreover, the offences of which
the petitioners in general have been charged, carries a
punishment of five years under Prevention of Corruption
Act or the IPC in comparison to the accused persons in
Sanjay Chandra‟s case (supra) where it carried 7 years.
So in a way petitioners stand is on better footing,
therefore, they ought not to be denied the benefit of
bail. Moreover, the Supreme Court order, which is
passed in Sanjay Chandra‟s case (supra) is binding on
the High Court. The High Court cannot while considering
the bail applications of the present accused persons do
hair splitting of the order of the Supreme Court and
make out a distinction when there is none so as to deny
the benefit of said order to the petitioners by saying
that the petitioners are charged for the offence of
conspiracy under Section 120B IPC red with section 409
IPC which carries the life imprisonment. It will be also
in my view would be violative of Article 141 of the
Constitution, which lays down that the High Court being
the subordinate to the Supreme court must show
compliance and the respect to the orders of the Apex
Court. In this regard, I am tempted to reproduce para 6
of the case titled Assistant Collector of Central Excise,
Chandan Nagar, West Bengal Vs. Dunlop India Ltd. &
Ors., (1985) 1 SCC 260, wherein it has been stated as
under:-
"...............It will never be necessary for us to
say so again that „in the hierarchical
system of courts‟ which exists in our
country, „it is necessary for each lower tier‟,
including the High Court, „to accept loyally
the decisions of the High tiers‟. „It is
inevitable in hierarchical system of courts
that there are decisions of the Supreme
appellate tribunal which do not attract the
unanimous approval of all members of the
judiciary...... But the judicial system only
works if someone is allowed to have the
last word and that last word, once spoken,
is loyally accepted.‟ The better wisdom of
the court below must yield to the higher
wisdom of the court above. This is the
strength of the hierarchical judicial
system."
23. Similarly, in case titled M/s Bayer India Ltd. & Ors. Vs.
State of Maharashtra & Ors., (1993) 3 SCC 29,, the
Apex Court has observed as under:-
"While we certainly respect the
independence of the High Court and
recognize that it is a co-equal institution, we
cannot but say, at the same time, that the
constitutional scheme and judicial discipline
requires that the High Court should give due
regard to the orders of this Court which are
binding on all courts within the territory of
India."
24. Mr.Altaf Ahmed, the learned senior counsel has also
cited number of other judgments to impress on this
Court, the question that the omission to mention of
Section 409 IPC or the absence of the word „life
imprisonment‟ in the Supreme Court order cannot be
interpreted in a manner which may be detrimental to
the interest of the petitioners on account of Article 141
of the Constitution of India as the Supreme Court has
dealt with the facts of the case as a whole and was
cognizant of the fact that the charges against all the
petitioners had crystallized. It was also aware that
common charges with regard to the commission of
offence were framed against all the accused persons,
which entailed imposition of life imprisonment, yet it
consider the case of the co-accused Sanjay Chandra‟s
Case (supra) fit to grant bail. These judgments are
Official Liquidator Vs. Dayanand & Ors. (2008) 10 SCC
1, State of Bihar Vs. Kalika Kuer @ Kalika Singh & Ors.
(2003) 5 SCC 448, Ajmer Singh Vs. State of Haryana,
(2010) 3 SCC 746, Izharul Haq Abdul Hamid Shaikh &
Anr. Vs. State of Gujarat, (2009) 5 SCC 283,
Dinbandhu Sharma Vs. State, 87 (2000) DKT 149,
Director of Settlements, A.P. & Ors. Vs. M. R. Apparao &
Anr., (2002) 4 SCC 638, Saganthi Suresh Kumar Vs.
Jagdeeshan, (2002) 2 SCC 420 and Indian Airlines Vs.
Union of India & Ors., 128 (2006) DLT 505 (DB).
25. I do not consider it necessary to refer to these
judgments though, I have gone through the relevant
pages cited during the course of submissions on account
of the fact that I have already taken a view hereinabove
that this Court being subordinate to the Supreme Court
is bound by the order passed by the Apex Court in the
facts of this very case. It will not be proper for this
Court to dissect the order minutely and then try to
make a distinction, so far as the case of the petitioner is
concerned, when on the face of it there is none.
26. Seen in the light of the observations passed by the Apex
Court in the aforesaid cases, I feel that it is not open to
this Court to differentiate in the facts of Sanjay
Chandra‟s case (supra) and the present case by
invoking Section 409 IPC or Section 120 B IPC and say
since the said offence carries life imprisonment,
therefore, the benefit of the said judgment on the basis
of parity cannot be extended to the petitioners. On the
contrary, I feel that the case of the petitioners stands
on a better footing because the offence of which they
are charged carries punishment of only five years in
contrast to seven years which were imposable in the
case of others.
27. The next point, which arises for consideration of the bail
applications of the petitioners, is whether they will flee
from the processes of law or they will be available for
the purpose of facing the trial. As a matter of fact, it has
never been the case of the prosecuting agency/CBI that
so far as the petitioners are concerned, they are likely
to flee from the processes of law. Almost all the accused
persons have roots in the society, though living in
different parts of the country with varied interest,
therefore, there is no chances of their fleeing from the
processes of law. In any case, their movements can be
regulated by imposing conditions by the Supreme Court.
28. So far as the next ground on which the benefit of bail
could have been denied to the petitioners is on account
of the likelihood of the petitioners, tampering with the
evidence or creating conditions, which are not conducive
to the holding of a fair trial. Every petitioner says that
the grant of bail to him will not create any impediment
in the holding of a free and fair trial and that he would
be available at all times to submit to the custody to the
Court as and when called upon to do so. Similarly, in a
given case, the prosecuting agency may not raise this
objection or make a positive statement as has been
done in the present case that it has no objection to the
grant of bail to the accused persons.
29. I feel that though such a concession granted by the
prosecuting agency may be a very relevant and
important factor to grant bail but I do not feel that the
Court is bound to accept such a statement blindly. The
Court is expected to exercise its own judgment and to
see if there is any likelihood or chances of tampering
with the evidence. This is because the Court has a
constitutional duty to uphold the „law‟ and it is well
possible in a given case there may be various
extraneous considerations, which may have prompted
the prosecuting agency to give such a concession, which
need not be gone into detail herein in this case. No
doubt, the petitioners are influential or moneyed
persons having extensive clout political or otherwise but
I have examined the list of witnesses qua each of the
accused persons, which was supplied by each of the
learned senior counsel. A perusal of the list of witnesses
shows that these witnesses are generally proving the
documents of banking transaction or otherwise to show
the movement of money transactions from
D.B.Reality/D.B.Dynamic to Kusegaon to Cineyug and
finally to Kalaignar T.V. and the reverse. Meaning
thereby that most of the evidence against the
petitioners is documentary evidence and there is in my
view no prima facie evidence or likelihood, which may
persuade the Court to doubt that the petitioners have
proclivities or reason to believe that they will create
condition, which may not be conducive to hold the free
and fare trial. Further, Mr.Mohan Parasaran, learned
ASG appearing for the CBI has clearly taken the stand in
the Court below, as well as before this Court that they
have no objection in case the petitioners are released on
bail as they do not apprehend that the petitioners will
tamper with the evidence and that they have no
objection to the grant of bail to the petitioners. There
for on account of this consideration, bail cannot be
denied to the petitioners.
30. So far as the Kanimozhi‟s case is concerned, she is
entitled to invocation of additional ground of being a
woman as envisaged Proviso to Section 437 which lays
down that in case an accused, who appears or produced
before a Magistrate is a sick, infirm or a woman or a
child less than 16 years of age, he is entitled to bail
notwithstanding the offence of which he or she is
charged may carry life imprisonment.
31. 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 to 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.
32. Mr.Luthra, Mr.Kaul, the learned senior counsel and
Mr.Vijay Aggarwal, Advocate have substantially adopted
the arguments of Mr.Ahmed, the learned senior counsel
for the petitioners. I do not feel that, in the light of the
analysis of the submissions made by Mr.Altaf Ahmed,
the learned senior counsel, any separate ground urged
by the remaining co-accused persons need to be dealt
with separately except that in the case of Mr.Karim
Morani. He is admittedly a patient, who has undergone
various surgical procedures and has precarious health
conditions, though for the present that has not been a
cause for concern but that is certainly a ground, which
has also weighed with this Court in extending the
benefit of grant of bail to him as has been a special
ground of being woman in the case of Kanimozhi
Karunanithi.
33. In the light of the aforesaid facts and circumstances, I
allow the bail applications of all the five accused persons
and they are directed to be released on bail on their
furnishing a personal bond in the sum of Rs.5 lakhs
each with two sureties for the like amount to the
satisfaction of the learned trial Court, subject to the
following conditions:
(a) The appellants shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with the facts or the case so as to
dissuade him to disclose such facts as may be
necessary to the Court or to any other authority;
(b) They shall remain present before the trial Court on
all the dates fixed for hearing of the case. If
anyone of them wants to remain absent, then they
shall take prior permission of the court and in case
of unavoidable circumstances for remaining
present, they shall immediately give intimation to
the trial Court and also to the Superintendent, CBI
and seek permission of the Court that they may be
permitted to present through the counsel, and in
such an event, they will not dispute their identity
as the accused in the case;
(c) They shall surrender their passport, if any (if not
already surrendered), and in case, they are not a
holder of the same, they shall swear an affidavit.
If they have already surrendered before the
learned Special Judge, CBI, that fact should also
be supported by an affidavit; and
(d) CBI will be at liberty to make an appropriate
application for modification/recalling of the order
passed by this Court, if for any reason, the
petitioners violate any of the conditions imposed
by this Court or creates any condition which is not
conducive to the holding of a fair trial.
34. Expression of any opinion herein may not be treated as
an expression on the merits of the case.
35. Copy of this order be sent to the trial Court.
36. Dasti under the signatures of the Court Master.
V.K. SHALI, J.
NOVEMBER 28, 2011
KP
