ASSESSING evidence is a subjective matter because law is not like mathematics with precise answers for specific questions.
Judgments are opinions based upon facts, which never change and prosecutors, who do. These prosecutors may be subject to political pressure so that they do not present the facts and the law in the way needed to sustain a conviction just as the court may assess evidence subjectively by rejecting what should have been accepted and accepting what should have been dismissed. Assessing evidence is a subjective matter because law is not like mathematics with precise answers for specific questions.
And when the senior prosecutors refuse to sign their written arguments, something smells. This is why Judge O P Saini, who presided over a special court in Delhi, acquitted former telecom minister A Raja and the DMK patriarch M Karunanidhi’s daughter, Kanimozhi. This week again, a special CBI court in Ranchi convicted Bihar chief minister Lalu Prasad Yadav for embezzling more than Rs 89 lakh from the Deoghar Treasury between 1991 and 1994. Yadav was earlier convicted in a previous fodder scam case that cost him his Lok Sabha seat.
To return to the 2G scam, the CBI’s own deputy superintendent S K Sinha deposed in the court that an alleged Rs 200 crore by way of bribes meant for A Raja had been parked in Kalaignar TV Pvt Limited, run by Karunanidhi’s family, in which his daughter Kanimozhi was a director. But, the court dismissed the oral evidence that the transfer of money from Dynamix Realty to Kalaignar TV (P) Limited and its return to Dynamix Realty was sham and dubious by opining that the role of the investigating officer was only to collect evidence.
Criminal courts do consider oral evidence, which is given when an I O enters the witness box and withstands a cross examination. When crimes are committed, there never can be documentary evidence. And an I O, who has no personal interest in the case, cannot be doubted if he has successfully withstood a cross examination.
But, Judge Saini chose to believe Raja’s explanation over that of the CBI officer to declare that “the blame cannot be laid at the doors of A Raja alone”. The decision was “not a conspiracy”, but “an administrative step taken by the officers of DoT in view of receipt of a large number of applications, but was later disowned by them when the issue became controversial”.
On the CBI’s allegation that Raja’s private secretary R K Chandolia had inquired if Unitech’s license application had been received — which was alleged to be part of the conspiracy — the judge said, “…Chandolia was inquiring about filing of Unitech application… (It is) only by way of oral evidence (which) carries much less credence… Legal position does not support oral evidence.” But, Judge Saini is wrong again because when crimes are committed, there cannot be documentary evidence which is relied upon by civil courts.
Judgments can be broadly classified as well-reasoned, inadequately-reasoned or hyper technical and plain irrational. While Judge Saini’s judgment is certainly not irrational, it overlaps between the first and second categories. The judge also indicted the prosecution for failing to prove the guilt of former Union telecom minister A Raja, and Kanimozhi, daughter of the DMK patriarch, M Karunanidhi and the other 17 when the court’s appreciation of the evidence furnished by the prosecution was very subjective.
Interestingly, the chief prosecutor Anand Grover is a senior Mumbai lawyer and a human rights activist who shifted to Delhi to be nearer to power. He took charge of the 2G spectrum case from U U Lalit, who was elevated to the Supreme Court in the place of Gopal Subramaniam, whose candidature as a Supreme Court judge was shot down by the BJP government, despite being recommended by the apex court collegium. This acquittal will be a setback for his career graph.
Judge Saini stated that the prosecution started with great enthusiasm. But, as the case progressed, it became very cautious and guarded making it difficult for the court to find out what it wanted to prove. Near the end, the prosecution lacked direction and conviction in seeking a conviction. One does not know if the prosecution was brought over or subjected to pressure, but the fact that it played a major role in the acquittal of the high-profile former minister A Raja, who was accused of phoning a Madras high court judge to influence him to grant bail to a DMK worker in a murder case is suspicious.
Judge Saini went on to add that the evidence furnished proved the ineptitude of the prosecution. Several applications and replies were filed in the special court by the prosecution, but no senior officer or prosecutor was willing to sign these applications or replies, which was signed by a junior CBI inspector Manoj Kumar posted in the court. When questioned, the reply of the senior prosecutor would be that the special prosecutor would sign it. When the latter was questioned, he would say the CBI would sign it. The senior prosecutors were guilty of passing the buck because they knew something was seriously wrong.
A shocking aspect of the case was that the special public prosecutor refused to sign his own written submissions. The special court had to pronounce orders to ensure the special prosecutor in the 2G spectrum scam signed his own written submissions by threatening this senior lawyer that unsigned written submissions would be ignored.
The CBI had alleged that A Raja knew top DB Group officials Shahid Balwa and Vinod Goenka from the time he was environment minister (2004-07) and that he had facilitated the conspiracy to grant licences to the DB Group-promoted Swan Telecom Pvt Ltd and, consequently, the transfer of Rs 200 crore from Dynamix Realty to Kalaignar TV (P) Limited as bribes. But the court dismissed the oral evidence of Aseervatham Achary, Raja’s former private secretary, that Balwa and Goenka made more than 20 visits to Raja’s office on the specious ground that there was no documentary evidence.
And so, those who comprised the executive walked out of jail with smiles on their faces, while the blame was placed on the Comptroller and Auditor General for inflating figures and creating a scam when there was none. But Judge Saini’s judgment makes a mockery of the Supreme Court judgment in 2012 which cancelled 122 licences. Either the Supreme Court was right, and Judge Saini is wrong, or the converse is true.
Perhaps the Supreme Court, being supreme, was right after all, which may be proved after the appeal is filed.
The writer is a practicing lawyer-cum-journalist of the Bombay high court.