New Delhi: DMK MP Kanimozhi and four others, who were granted bail by the Delhi High Court in 2G spectrum case, will have to wait one more night behind the bars as release warrants could not be issued by the Special Judge due to procedural delay.
The delay was caused as the certified copy of the High Court's order, which was required to be submitted along with the bail bonds before Special CBI Judge O P Saini, could not be furnished within the working hours of the trial court.
The Special Judge waited in his chamber till 5.15 pm on the request of lawyers appearing for the accused but the order was not placed before him in time.
Kanimozhi's counsel R Shunmugasundaram said they would furnish the bail bonds before the trial court Tuesday morning to get the release order.
"We will submit the bail bond tomorrow morning," he said.
Granting the bail on Monday, the court said it cannot do "hair splitting" of the Supreme Court verdict omitting the offence of criminal breach of trust against all the accused, which entails life imprisonment as the maximum punishment.
In its 39-page judgement, the court observed that Kanimozhi and the other four are on a "better footing" and deserved the benefit on the ground of "parity".
Relying on last week's Supreme Court verdict which said "bail is rule and jail is exception, the court treated Kanimozhi, who is in prison since May 20, on par with five corporate executives, granted bail on Thursday last.
"The High Court cannot while considering the bail applications of present accused 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 petitioners by saying that they are charged for offence of conspiracy read with offence of criminal breach of trust which carries the life imprisonment," Justice V K Shali said.
However, 43-year-old Kanimozhi, daughter of DMK chief M Karunanidhi, and others will have to spend one more night in Tihar jail as their release warrants could not be issued by Special CBI Judge O P Saini due to procedural delay.
The High Court applied the same principle of liberty to grant bail to Kalaignar TV MD Sharad Kumar, filmmaker Karim Morani and Kusegaon Fruits and Vegetables Pvt Ltd directors Rajiv Aggarwal and Asif Balwa.
However, the court reserved its order on the bail plea of former Telecom Secretary Siddharth Behura, who is in jail along with ex-Telecom Minister A Raja since February 2, after CBI refused to concede to him on the ground of parity.
"If despite the aforesaid facts, the Supreme Court has released the co-accused persons Sanjay Chandra's case on bail, the said benefit cannot be denied to the petitioner on the grounds of parity," the court, in its 39-page order, said.
The court, in its judgement, said Kanimozhi's case was on better footing than that of corporate executives, who had been granted bail by the Supreme Court and moreover, she can also be extended the benefit for being a woman.
"Moreover, offences of which the petitioners in general have been charged carry a punishment of 5 years under the Prevention of Corruption Act or IPC in comparison to accused in Sanjay Chandra's case where it carried 7 years. So, in a way, the petitioners stand is on better footing, therefore, they ought not to be denied the benefit of bail," it said.
"So far as Kanimozhi's case is concerned, she is entitled to invocation of additional ground of being a woman as envisaged under section 437 of CrPC which lays down that in case, an accused who appears ... is a sick, infirm or a woman is entitled to bail notwithstanding the offence of which he or she is charged may carry life imprisonment," it said.
Referring to the apex court order, the court said the accused cannot be denied bail on mere apprehension that they, if released on bail, may misuse the liberty.
"The grant of bail ought not to be denied only on the perceived apprehension by the court that the petitioner, resorted 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 the bail is extended to the accused he is going to misuse or so as to create conditions which are not conducive to hold a fair trial," it said.