Jayalalithaa's bail plea

The law on course

Print edition : October 31, 2014

Senior lawyer Ram Jethmalani arriving at the Karnataka High Court to represent Jayalaithaa on September 30. Photo: V. Sreenivasa Murthy

Jayalalithaa and Sasikala , a 2009 photograph. Photo: R. Ragu

With the Karnataka High Court denying bail to Jayalalithaa, her only hope of securing bail is through a special leave petition in the Supreme Court.

IN what came as a shock to her supporters and a surprise to most legal experts, the Karnataka High Court on October 7 denied bail to former Tamil Nadu Chief Minister Jayalalithaa in the disproportionate assets case in which she and three others have been convicted, sentenced, fined and incarcerated in the Bangalore Central Prison.

Represented by the high-profile defence attorney Ram Jethmalani, Jayalalithaa had filed an application under Section 389(1) of the Code of Criminal Procedure (CrPC) requesting the first appellate court “to suspend the sentence imposed on her on September 27 by the Special and XXXVI Additional City Civil and Sessions Judge, Bangalore, John Michael D’Cunha in special criminal case 208/2004, convicting her for offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act and Section 109 read with Section 120-B of the Indian Penal Code (IPC)”, and “to enlarge her on bail”. Jayalalithaa’s close associates and co-accused in the case, V.K. Sasikala, V.N. Sudhakaran and J. Ilavarasi, had also made similar pleas.

The charges against Jayalalithaa and the three others hinge around Jayalalithaa’s assets/wealth in 1996 totalling, according to the trial court, Rs.53,60,49,954, a figure which was exponentially disproportionate to her declared sources of income. The three others, according to the verdict of the trial court, “abetted Jayalalithaa, who was a public servant, by intentionally aiding her in the possession of pecuniary resources and property disproportionate to her known sources of income and for which she could not satisfactorily account, by holding a substantial portion of the said pecuniary resources and property in [their] names and in the names of business enterprises floated in [their] names, and thereby committed an offence punishable under Section 109 of the IPC read with 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988, and within the cognisance of the court”.

In a court hall meant to seat fewer than 50 but had over 200 advocates, almost all owing allegiance to the former Chief Minister and her party, the All India Anna Dravida Munnetra Kazhagam (AIADMK), and media personnel, Justice A.V. Chandrashekara, who was on the Bench, citing a Supreme Court ruling, said that a “person convicted of an offence punishable under Section 389(1) of the CrPC, the corruption act is deemed to be corrupt, till he or she is exonerated by the Appellate Court or the Revisional Court”. Dismissing the bail applications of all the four accused, the judge ruled that the “court is of the opinion that no grounds exist to suspend the sentence”, and “viewed from any angle, this is not a fit case in which sentence could be suspended and bail consequentially granted”.

Bhavani Singh’s


Interestingly, the court’s decision not to grant bail to the accused came in spite of the view expressed by the Special Public Prosecutor (SPP), G. Bhavani Singh, that the prosecution had no arguments to make and no objection to conditional bail being granted. Bhavani Singh, who has been appointed SPP under “directions of the Supreme Court to the Chief Justice of the Karnataka High Court and in turn the Government of Karnataka”, had hardly a week earlier, on October 1, strongly opposed bail when vacation Judge Ratnakala was hearing the appellants’ bail plea. Bhavani Singh’s written submission then stated that “in view of the seriousness of the offences and keeping in view the status of the accused, the prosecution reasonably apprehends that if the conviction and sentence is stayed, she may misuse the liberty and in such event, it will be difficult for [the] prosecution to secure the presence of the accused for receiving the sentence, if the appeal is dismissed by this court in the latter stage”. He further stated that “Section 389(1) of the CrPC provides only suspension of sentence and not the conviction as prayed for [by the appellants]”.

Though Bhavani Singh defended his volte-face vehemently, it has perplexed everyone. Not least the judge himself. The judge ruled: “When the Special Public Prosecutor was asked as to whether he has any submission in this regard to make, he has openly submitted that he has no arguments to make and that the sentence may be suspended and the accused may be released on imposing conditions deemed fit under the circumstances of the case. But he did not make any submission as to whether he does not press the written objections already filed.”

Jethmalani’s defence

Taking up the applications filed in each case under Section 398(1) of the CrPC for consideration, Judge Chandrashekara, in two sessions interrupted only by the court’s recess for lunch, appeared well in command of his court, notwithstanding the presence of the 91-year-old Jethmalani who used his vast experience and court craft at every opportunity, even quoting Oscar Wilde and accusing the trial court judge of “playing the role of a witness when the prosecution failed to find one”. Drawing the court’s attention to what he called “several alleged infirmities found in the judgment of the trial court”, Jethmalani claimed that the judgment was “neither sustainable in law nor on facts”.

Also with there being no possibility of an early hearing in a case like this with voluminous evidence, the court should exercise “a lenient view insofar as suspending the sentence” and granting bail, he said. “Granting of bail during the pendency of appeal is well settled in law,” Jethmalani said.

Citing the fact that he had appeared for Lalu Prasad, the former Railway Minister and former Chief Minister of Bihar, who had been convicted in a similar case for offences punishable under Section 13(e) and 13(2) of the Prevention of Corruption Act, 1988, and who was granted bail by the Supreme Court after it was rejected by the High Court of Jharkhand, Jethmalani requested the court to apply the same parity to Jayalalithaa.

But the argument cut no ice with the appellate court which clearly stated that a parallel could not be drawn between the Lalu Prasad and Jayalalithaa cases since the former had already been in jail for 10 months and similarly placed accused had been released on bail. Further, the judge cited that the Supreme Court had held that the High Court of Jharkhand erred by not applying the principle of parity, which is “applicable to Lalu Prasad, more particularly, when he had already spent ten months in jail”.

In Jethmalani’s oral and written submissions, the trial court’s judgment is “almost perfunctory and suffers from serious perversities”. He also said that several incriminating materials relied upon by the trial judge, D’Cunha, to convict the accused had not been brought to the notice of the accused during their examination. Also, that “the appellants’ appeal should not be rendered infructuous because of the delay that would be caused in hearing the appeal”.

Rubbishing the prosecution’s claim of “clinching evidence” in that over Rs.6 crore had been spent by Jayalalithaa on the wedding expenses of her (then) foster son, Jethmalani argued that of this Rs.5.2 crore had been borne by the bride’s family and that his client had only spent Rs.29 lakh by way of decoration of the pandal, invitations and gifts given to some guests. “When the evidence was unsatisfactory, the trial judge fixed the expenses at Rs.3 crore. This was yet another instance of the trial court judge becoming a witness when the prosecution was not able to prove the charges and produce a witness,” said Jethmalani.

Justice Chandrashekara’s ruling

Justice Chandrashekara ruled against the defence’s argument that the mere fact that the accused were on bail throughout the trial proceedings and that they had not misused the liberty so granted per se warranted suspension of execution of the sentence and grant of bail. He also ruled that just because a criminal appeal is admitted, the suspension of sentence is not an automatic event and that principles governing grant of bail at pre-trial stage are considerably different from those on which an appeal court would decide such an application at the post-conviction stage, “the obvious reason being that there is already an assessment of evidence and the conviction entered by the trial court is certainly a disqualification against the accused”.

The first appellate court justified its order denying bail by citing judgments of the Supreme Court which, in Justice Chandrashekara’s view, had in recent times added new dimensions to the approach to be adopted towards public servants involved in cases of corruption. The apex court had held that “corruption violates and undermines human rights since systematic corruption leads to an economic crisis”, and “an accused who has been convicted is presumed to be corrupt till he is exonerated either by the Appellate Court or the Revisional Court”. Again, relying on the Supreme Court’s stand that “corruption is a serious malady undermining the very health of polity”, the judge opined that there is “no grounds to suspend the sentence”.

The judge ruled: “Accused No.1 [Jayalalithaa] was a high constitutional functionary in the State of Tamil Nadu, being the Chief Minister. The allegation is that during the check period [1991-96] she had amassed wealth and [the other three accused] were hand in glove with her, having resided with her during the relevant period and afterwards also. In view of the Supreme Court’s [observations] that corruption violates human rights and leads to systematic economic crisis, this is not a fit case in which the sentence could be suspended. Hence applications filed under Section 389(1) of the CrPC are dismissed. Consequently, the question of granting bail to the accused-appellants does not arise.”

While Jayalalithaa’s only hope of securing bail is through a special leave petition in the Supreme Court, the appeal against her conviction will be heard by the High Court of Karnataka starting from October 24.

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