Legal angles

Print edition : October 31, 2014

IT was the second legal setback for former Tamil Nadu Chief Minister Jayalalithaa and her co-accused in the disproportionate wealth case when, on October 7, Justice A.V. Chandrashekara of the Karnataka High Court dismissed their applications for suspending the sentence imposed on them by the trial court and for enlarging them on bail.

The Special Public Prosecutor (SPP) first filed detailed written objections to their applications on October 1. He pointed out that in view of the finding of the trial court that the accused persons had disproportionate assets to the tune of Rs.53,64,00,000 and their conviction, the plea of presumption of innocence is no longer available to them. The SPP apprehended that “if the conviction and sentence is stayed”, Jayalalithaa “may misuse the liberty and in such event, it will be difficult for prosecution to secure the presence of the accused for receiving the sentence, if the appeal is dismissed by the appellate court at a later stage”. The SPP appeared keen on opposing the suspension of both conviction and sentence of the accused, as against a suspension of sentence alone.

However, during the oral submission before the High Court on October 7, the SPP submitted that he had no objection to the suspension of the sentence and the release of the accused on appropriate conditions to be imposed by the court. He refrained from indicating whether he was pressing the written objections which he had filed earlier.

This subtle distinction between suspending Jayalalithaa’s conviction and sentence, which the SPP made through his written and oral arguments before the court, appeared to have been lost on Jayalalithaa’s lawyers, who wrongly inferred that the court was likely to grant her bail. This led to premature celebrations by her supporters.

In his 46-page order, Justice Chandrashekara summed up the arguments of counsel for the accused-appellants and explained why he saw no merit in them.

Ram Jethmalani, senior counsel for Jayalalithaa, underlined what according to him were the infirmities in the trial court’s findings and requested the High Court to suspend her sentence as there was “no possibility of an early hearing in a case like this with voluminous evidence”.

Jethmalani’s major contention was that much of the incriminating material relied upon by the trial judge to convict Jayalalithaa was not brought to her notice during the examination conducted under Section 313 of the CrPC. This provision deals with the power of the trial court to examine the accused for the purpose of enabling her to explain personally any circumstances appearing in the evidence against her. Therefore, he indicated that she had a fair chance of succeeding in her appeal against the trial court’s judgment. However, he feared that delay in hearing her appeal would leave her appeal infructuous if, in the mean time, she completed her sentence.

Jethmalani also relied on a brief order delivered by the Supreme Court in Lalu Prasad vs State of Jharkhand through CBI, on December 13, 2013, granting bail to the former Chief Minister of Bihar, who was convicted and sentenced to five years’ imprisonment in a fodder scam case. That order was delivered by a Bench comprising the then Chief Justice of India Justice P. Sathasivam and Justice Ranjan Gogoi. In that case, Ram Jethmalani had appeared as counsel for Lalu Prasad.

The Supreme Court took note of the fact that out of the sentence period the appellant, Lalu Prasad, had served nearly 10 months in jail during the trial and nearly two and a half months after conviction. The court also considered the fact that in that case out of the 44 convicted persons 34 had been released on bail. Jethmalani highlighted the fact that Lalu Prasad, who had been awarded a five-year sentence, was granted bail by the Jharkhand High Court.

In his order, Justice Chandrashekara conceded that the Supreme Court applied the principle of parity while granting bail to Lalu Prasad, but failed to explain convincingly why the same principle, as argued by Jethmalani, was not applicable to Jayalalithaa. What one can infer from his order is that while Lalu Prasad had spent 10 months in jail, Jayalalithaa had spent just about 10 days and, therefore, was not entitled to the application of the principle of parity.

Jethmalani, however, appeared to be arguing that while Lalu Prasad was sentenced to five years’ imprisonment in a corruption case and was still found to be eligible for the application of the principle of parity, Jayalalithaa, who was sentenced to only four years’ imprisonment, should easily qualify for the application of the same principle.

Justice Chandrashekara, however, held that the mere fact that there was no misuse of liberty by the accused during the period when they were on bail during trial did not per se warrant suspension of the execution of sentence and grant of bail. The judge then drew a distinction between corruption cases and non-corruption cases and cited the recent Supreme Court cases wherein denial of suspension of sentence and bail was justified on the grounds that corruption also involved a violation of human rights. These cases were decided by the Supreme Court before the decision in the Lalu Prasad case. So the Supreme Court alone is competent to resolve the apparent inconsistency in these judgments as and when Jayalalithaa’s lawyers decide to appeal against the denial of bail by the High Court.

As if to answer Jethmalani’s contention that the likelihood of delay in hearing Jayalalithaa’s appeal would make her appeal infructuous, Justice Chandrashekara pointed to the Supreme Court’s recent direction in Public Interest Foundation vs Union of India, wherein the court held that trial in cases of corruption involving public servants under the Representation of the People Act must be conducted speedily within a year from the date of framing of charges.

V. Venkatesan