Bail or jail? Kanimozhi is test case, and court will be on trial

Special Judge OP Saini sent shockwaves among the 2G scam accused when he announced on Saturday that all 17 accused would be charged under section 409 of the Indian Penal Code IPC), which deals with criminal breach of trust.

While framing the charge-sheets, he said that apart from A Raja, Siddharth Behura and RK Chandolia (who were either ministers or government servants), even DMK MP Kanimozhi, and top corporate honchos from Unitech Wireless, Reliance-ADAG and DB Etisalat would be tried for criminal breach of trust. They would be prosecuted under section 409.

Barring Raja, Behura and Chandolia, none of the other accused expected to be charged with criminal conspiracy and cheating. Their main focus was on obtaining bail and the Supreme Court had told them that they could approach the lower court for it once the charges were framed.

But when Judge Saini imposed charges under section 409 – a section under which the highest punishment can include life imprisonment – their hopes may have dimmed. History shows that the possibility of bail recedes once you are charged under section 409. Their bail applications will come up on Monday.

All the accused will, of course, plead “not guilty.” Plus, each one of them is expected to appeal against the framing of charges by the Central Bureau of Investigation’s designated court and seek bail. Section 409 is what stands between them and bail.

Anxiety levels have already risen among the accused. Last month, three Reliance ADAG corporate honchos – Group Managing Director Gautam Doshi, and Senior Vice-Presidents Hari Nair and Surendra Pipara – had argued in their bail pleas that they were “merely employees and not actual beneficiaries.’’

This led to speculation that Anil Ambani’s trusted lieutenants may turn approvers and tell the CBI at whose behest they were acting when they started shell companies for routing money into Swan Telecom. Will they be able to withstand the pressure and possibility of living in the jail till the case is finally decided?

Unitech’s Managing Director Sanjay Chandra, too, was quite hopeful of getting bail once the charges were framed. The CBI has not yet been able to prove a quid pro quo against him. The CBI is still investigating his case. It believes that Unitech has about 250 companies abroad and it takes time to send letters rogatory in each case and follow the money trail.

Above all, Kanimozhi is the one most hopeful of getting bail. She is the only woman accused in the 2G scam case. And even the law suggests that the court should be lenient in giving bail to a woman. In fact, she still stands a better chance despite being charged under section 409, because she is a ‘woman’. Section 437 of CrPC (Criminal Procedure Code) says: “The court may direct that a person be released on bail if such a person is under the age of 16 years or is a woman or is sick or infirm.’’

Like the others, Kanimozhi has also been charged under the same sections of law (section 420 of the Indian Penal Code, which reads ‘Cheating and dishonestly inducing delivery of property’ read with section 409).

If Kanimozhi gets bail, Reliance ADAG’s Gautam Doshi may also seek bail under the same clause, pleading that both his kidneys are badly damaged and he is sick and under medical observation.

It will also be interesting to see how the CBI reacts to their bail pleas. It may be recalled that the agency had not opposed Doshi’s plea and was, at one point, uncertain whether to oppose Kanimozhi’s bail. The court has rejected bail so far on the argument that the nature of their crimes was serious.

The court has put everybody in jail for reasons of ‘parity’. Kanimozhi’s bail plea on Monday will put the court to trial — on whether exceptions will be made.

Watch video of DMK saying that it’s wrong to deny Kanimozhi bail