GUILTY TILL PROVED INNOCENT?
Court rejects Kanimozhi’s bail plea on grounds that she belongs to the upper echelons of society
‘The conviction rate in the country is so poor that the courts are denying bail, making incarceration without being proven guilty, a mode of punishment.’ KTS TULSI, Supreme Court lawyer
DMK patriarch K. Karunanidhi was convinced that his daughter Kanimozhi would be finally released when CBI said publicly that it would no longer oppose bail since the chargesheet had been filed. The Karunanidhi clan came to Delhi’s Patiala House court on the morning of November 3, confident that they would take Kanimozhi home. Both the law and logic suggested that every reason to keep her any longer in jail had been exhausted. Then Special Judge O.P. Saini dropped his afternoon bombshell: back to Tihar.
His reasons were curious, to say the least. Kanimozhi would remain behind bars because she is affluent and she would be secure. The legal community was puzzled; those at the receiving end of this decision could think of no reason apart from judicial over-activism. The decision will be appealed in the High Court but it has once again aroused a furious debate over the rights of undertrial prisoners. Are they innocent till proved guilty, or guilty till proved innocent? Senior lawyer K.T.S. Tulsi says that with the conviction rate so poor in the country, courts are denying bail, making incarceration without being proven guilty as a mode of punishment. Homi Ranina, senior advocate, Supreme Court says, "I think an unnecessarily strict view has been taken by the judge. Bail should have been granted. Unless there is a compelling reason, the chargesheet has been filed, the trial is set to begin on November 11, they aren't going to tamper with evidence, not now and not personally.”
Saini dismissed her bail application, along with those of four others— Kalaignar TV chief Sharad Kumar, Bollywood producer Karim Morani, directors of Kusegaon Fruits and Vegetables Asif Balwa and Rajiv Agarwal. Saini said, “It is repeatedly submitted that these reasons make out good ground for bail to the accused. I have bestowed my careful and anxious consideration to these submissions. In the facts and circumstances of a particular case, these factors may be relevant consideration but in some cases it may not be so.” He said after framing of charges under “a more serious” section of 409 IPC (criminal breach of trust) which carries life imprisonment as maximum punishment, “there is no favourable change in the case of the accused.”
On October 22, Kanimozhi was charged with a supporting provision of section 409 IPC (criminal breach of trust) read with section 120 B (criminal conspiracy) in the 2G case. Saini’s order says, “Persons involved in such offences, particularly those who continue to reap the benefit of the crime committed by them, don’t deserve any indulgence and any sympathy to them would not only be entirely misplaced, but also against the larger interest of society. The court cannot be oblivious to the fact that such offences are preceded by cool, calculated and deliberate design with an eye on personal gains. If a person knows that even after misappropriating huge public funds, he can come out on bail after spending a few months in jail.” The tone and tenor of the order suggests there will be no mercy in the short term.
On November 2, the Supreme Court bench of Justice G S Singhvi and Justice H.L. Dattu reserved its verdict on the bail petitions of Unitech promoter Sanjay Chandra, Vinod Goenka of DB Realty and Hari Nair, Surendra Pipara and Gautam Doshi of Reliance Telecom, other accused in the 2G case. This judgment will come any day. The 2G trial begins in the Saini’s court on November11.
KANIMOZHI OUTSIDE THE PATIALA HOUSE COURTIN MAY