Karnataka - Bangalore

Accused persons cannot seek discharge from case, maintains prosecution

B.S. Ramesh

Special Court adjourns hearing in disproportionate assets case till Thursday

BANGALORE: The accused in the disproportionate assets case cannot seek their discharge from the case as the evidence in the first case (the Rs. 66.65-crore wealth case) has already been led and charges have been framed against them, according to the prosecution.

The Special Public Prosecutor, B.V. Acharya, told the Special Court hearing the assets case involving the Tamil Nadu Chief Minister, Jayalalithaa, and four others that the Designated Court in Chennai had, in October 1997, framed charges against the accused. None of the accused, including J. Illavarasi, fourth accused, who has filed a petition for her discharge, had challenged the order framing charges against them and they could not seek discharge now.

Moreover, the trial had proceeded, witnesses were examined and arguments were being heard when the Supreme Court transferred the case from Chennai to Bangalore.

Section 362 of the Criminal Procedure Code (Cr.PC) bars the consideration of discharge when a court has already framed charges, he said and questioned the maintainability of such an application.

He said the Special Court here, while ordering the merger of the wealth case and the London hotels case, said the evidence led earlier would not be obliterated. He urged the court to take a decision on the maintainability of the discharge application.

If the court holds that there is merit in the application, the prosecution will have to go through the evidence of 259 witnesses already examined and the 2,000 documents to prove that there is a case against the accused, he said.

Earlier, Mr. Acharya took exception to the application under Section 317 of the Cr.PC by all the accused, except Ms. Jayalalithaa, seeking exemption from personal appearance. Ms. Jayalalithaa is holding a public office, but there is no valid cause or ground for the other accused not to be present before the court, he said. The prosecution had been accused of not filing counters and, henceforth, they would file counters opposing applications for exemption.

The Special Judge, A.S. Pachhapure, said this is not a civil trial but a criminal one, and the accused have to be present unless there is a valid reason.

N. Jothi, advocate for Ms. Illavarasi, said the accused will be present in court whenever the court wants them to do so.

Continuing his arguments seeking the discharge of Ms. Illavarasi, Mr. Jothi said the papers filed by the prosecution do not satisfy the provisions of Section 34 of the Indian Evidence (IE) Act and, therefore, they cannot be adduced as evidence.

The Cr.PC does not bar the accused from moving an application for discharge after a charge sheet has been filed, he said. Discharge is not acquittal but only an instrument to recognise that there is not enough material on hand to proceed against an accused. If the prosecution can gather authentic material, an accused who has been discharged can be asked to face trial again, he said.

Mr. Jothi sought time till Friday to file written submissions on the issue of discharge. He also filed an application on behalf of K.J. Sasikala, second accused, seeking her discharge.

In the application, she said the petition by Ms. Illavarasi for discharge is acceptable to her and she would adopt the factual and legal position raised by Ms. Illavarasi.

Jenasena, counsel for T.T.V. Dinakaran, fifth accused, sought his client's discharge, saying that he has not been charged under any Act or section in the final report. Therefore, the question of taking cognisance of any offence by him does not arise.

The Special Judge wanted to know the charges against Ms. Jayalalithaa and Mr. Dinakaran (in the London hotels case). Mr. Acharya said the charges pertain to conspiracy and abetment (Section 13 (1) (e) read with Section 109 and Section 120 B of the Indian Penal Code).

The hearing has been adjourned till Thursday.

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