Blowing hot and cold

Special Public Prosecutor G. Bhavani Singh’s actions and statements have been contradictory and controversial. As such his appointment, too, has seen many flip-flops.

Bhavani Singh speaking to the media outside the Special Court in Bangalore after Jayalalithaa was convicted in the disproportionate assets case on September 27. To his left is M.S. Maradi, assistant advocate to the SPP.

SLIGHTLY rotund, bespectacled and balding, G. Bhavani Singh could well be a frayed, modern-day version of Hercule Poirot, the detective character made famous by Agatha Christie. But his job as the Special Public Prosecutor (SPP) in the Jayalalithaa disproportionate assets case is not to go looking for clues but to prosecute the former Tamil Nadu Chief Minister and her three close associates and co-accused. Is the 59-year-old Bhavani Singh, who succeeded veteran lawyer and five-time Karnataka Advocate General B.V. Acharya in February 2013, doing his assigned job?

Not so, feel many legal experts, who said that the conviction and denial of bail to Jayalalithaa and her co-accused came about not because of the efforts of the SPP but in spite of him. Though he shrugs off the criticism, retorting that he “cannot answer all the rumours and all the people”, many of Bhavani Singh’s actions and statements have been contradictory and controversial, to say the least. Appointed SPP in February 2013 by the High Court of Karnataka in compliance with the Supreme Court’s directions in the trial of the Jayalalithaa case, Bhavani Singh, following the defence counsel’s submissions for a suspension of execution of the sentence, orally submitted that he had “no objection to the court granting conditional bail to the accused”. This was as controversial as could be since hardly a week earlier he had given a written submission to the court vehemently opposing bail. So what was the reason for the volte-face?

Speaking to Frontline, Bhavani Singh explained that under Section 389(1) of the Code of Criminal Procedure (CrPC) the SPP had no role to play in granting bail. Section 389 of the CrPC says: “Suspension of sentence pending the appeal; release of appellant on bail: (Clause 1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.”

He said: “Initially the defence had prayed for a suspension/stay of conviction also. This can’t be done. That is why I opposed it initially. When they [defence] left this out and only sought suspension of sentence, I said that the court may consider conditional bail. It is between the court and the accused. The public prosecutor has no role as per Section 389 of the CrPC since the sentence is only for four years.”

Controversies in appointment

The appointment of the SPP in the Jayalalithaa case has always been mired in controversy. In 2003, after the Supreme Court, acting on a petition filed by DMK leader K. Anbazhagan, shifted the trial of the case to Karnataka, it directed that the Karnataka government, in consultation with the Chief Justice of the High Court, should appoint the SPP. In compliance with the Supreme Court’s orders, the veteran lawyer Acharya was appointed as the SPP in February 2005. In February 2012, Acharya, who was concurrently the State’s Advocate General (A.G.), was directed by the very person (BJP Chief Minister Sadananda Gowda) who had appointed him to the post of A.G. in August 2011 to give up one of the posts. It was a clear indication of the changing political ties between the BJP and the AIADMK.

Said Acharya: “The BJP government had hoped that I would give up the role of the SPP and continue as the A.G. Who in his right mind would give up the post of A.G.?” Acharya did, stepping down as the A.G. in February 2012, choosing to stay on as the SPP. In 2012, he even successfully petitioned the High Court against the decision of the Tamil Nadu Directorate of Vigilance and Anti-Corruption (DVAC) to appoint its own public prosecutor for the Jayalalithaa case. (Jayalalithaa had by now become the Chief Minister.) However, Acharya was “forced” to resign from the SPP’s post in August 2012 after what he claims was “untold harassment by the BJP government”. With his resignation not accepted by the then Chief Justice of the High Court Vikramjit Sen, Acharya continued as the SPP until December. But soon after Justice Sen was elevated as a judge of the Supreme Court in the last week of December 2012, Acharya’s resignation was accepted and files moved swiftly, paving the way for the appointment of Bhavani Singh as the SPP in February 2013.

Interestingly, in August 2013, the Congress government in Karnataka issued a government order (G.O.) seeking Bhavani Singh’s removal as the SPP. Even more interestingly, it was Jayalalithaa and her three co-accused in the disproportionate assets case who challenged Bhavani Singh’s removal and sought a direction to extend the services of the then Special Court Judge M.S. Balakrishna, who was then on the verge of retirement. With the Supreme Court ruling that “it was a rather unusual and a mala fide exercise of power” by the Karnataka government, Bhavani Singh stayed on as the SPP. Balakrishna was succeeded by John Michael D’Cunha.

The court ruled: “In the instant case, there has been a change of political party in power in May 2013 and thus, the order of the State government is alleged to be politically motivated. In our opinion, though there is an undoubted power with the government to withdraw or revoke the appointment within Section 21 of the General Clauses Act that exercise of power appears to be vitiated in the present case by mala fides in law inasmuch as it is apparent on record that the switchover of the government in between has resulted in a sudden change of opinion that is abrupt for no discernible legally sustainable reason. The sharp transitional decision was an act of clear unwarranted indiscretion actuated by an intention that does not appear to be founded in good faith. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner.”

The Bench said the reason put forth for removing Bhavani Singh as the SPP appeared to be rather unusual. “It might be true that his name was not in the list of four names submitted by the government to the then Acting Chief Justice of the High Court [Justice K. Sreedhar Rao] and the name originated from the Acting Chief Justice, prior to making of appointment of SPP by the Government of Karnataka, but it was equally true that the appointment was made by the government without questioning the ability or suitability of the incumbent, nor the government raised any issue in respect of the manner/issue of consultation. Apart from this, the appointment continued unobjected for almost seven months.”

The Bench added: “The grievance [of the Karnataka government] that there has been no consultation or insufficient consultation is normally raised by the authority who has a right to be consulted, in this case the Chief Justice. It is not legitimate for the party who has a duty to consult and who has failed in that duty to make a grievance that there has been no consultation. This is exactly what has happened in the present case. If the government found the name of Bhavani Singh, which was sent by the Acting Chief Justice, not acceptable on any ground, it was duty-bound to refer the name back to the Acting Chief Justice along with its views and suggestions, which was not done by them. There is nothing on record to indicate that the Government of Karnataka had been forced by anyone to make the said appointment. The government thus voluntarily acquiesced in the process and is now not entitled to raise this grievance. The grievance is thus baseless and does not carry any conviction.” Karnataka hastily withdrew the G.O.

Changing stands of

the SPP

On the morning of September 30, after the defence moved a vacation Bench of the High Court of Karnataka seeking bail, Bhavani Singh told Justice Rathnakala that as there had been no official communication from the Government of Karnataka on his appointment as the prosecutor in the criminal appeal filed in the High Court, it would not be proper for him to represent the State. The judge then adjourned the matter contending that a representation from the prosecution side was necessary to conduct the trial. By the same evening, Bhavani Singh’s office, citing a newspaper report, claimed that the go-ahead appointing Bhavani Singh as the SPP for the appeal stage of the case as well had been issued by the Karnataka government. But the next day, Bhavani Singh stirred a hornet’s nest by stating that he had been appointed SPP by the DVAC. He later clarified by stating that the DVAC notification “was only for a technical matter with regard to logistic support, such as fees and other expenses”.

Can he continue as the SPP? Bhavani Singh told Frontline that since Jayalalithaa had filed an appeal in the High Court, it meant the trial process was still alive and not complete. And as such there was no need for the government to issue a new notification for appointment of the SPP. Said Bhavani Singh: “The appointment was for the entire case, and not in stages. And till the ‘logical end’ of the case is the presumption. If the court sends me a notice, I will be there. Otherwise, I will stay at home and improve my health.”

Stating that the job of the SPP had taken a toll on his health as there was enormous pressure from various quarters, Bhavani Singh said that one could act as per the law, but pleasing everyone was almost impossible. “After all, I am a human being. To satisfy [even] a single boss is tough. In this case I have so many bosses. They all judge my performance,” he said.

Despite the hiccups, uncertainty and criticism, Bhavani Singh is confident of the Appellate Court upholding the conviction of the trial court. He said: “It is a very good case. There is enough material for conviction. There are no errors in the order [of the trial court]. What more can I say.”