Digambar and Churchill are not ‘equal': Court

GOANEWS DESK, PANAJI | 24 August 2015 19:21 IST

Former chief minister Digambar Kamat was granted anticipatory bail on technical ground and not on merit. But there is a merit in refusing bail to former PWD minister Churchill Alemao, though both of them face similar charges as co-accused in the bribery case.

This is in nutshell said the CBI court today while rejecting the bail application of Alemao and justifying granting anticipatory bail to Kamat.

After granting anticipatory bail to Kamat on 19th August, Alemao had made a fresh plea next day, seeking bail, which was earlier rejected on 17th August, claiming ‘change in circumstances’.

Both Kamat and Alemao - CM and minister in the erstwhile Congress government - are today facing a serious charge of accepting huge amount of bribe from Louis Berger International Inc., a US-based consultancy firm.

While rejecting Alemao’s bail for the second time, special judge B P Deshpande stated:

“…after considering all aspects of the matter, I am of the considered opinion that there is no change in the circumstance from the time of rejection of first bail which was only two days prior to filing of present bail application and secondly the applicant (Alemao) cannot claim bail on parity. Therefore present bail application deserves to be rejected.”

Criminal background is the hurdle

The major hurdle for Alemao to get the bail appears to be his criminal background the crime branch of Goa police had citied, including his smuggling activities, his NSA detention and another case of fraud the crime branch is probing regarding floating PWD tenders without advertising in the media.  

The charge Alemao is facing is misappropriating public funds to the tune of Rs 300 crore by “fraudulently floating 13 short tender notices pertaining to 258 works of roads/maintenance as urgency works, out of which 89 works were above Rs 5 lakh, which were not published in the newspapers.”

“There was opportunity with the applicant to file rejoinder stating that there is no criminal record, however this aspect cannot be now considered while deciding second bail claiming that applicant is now giving more material”, stated the court.


Why Digambar and not Churchill?

Kamat got major benefit of a technical error by crime branch of not recording reason of his arrest in the police diary, as required under Section 41-A of CrPC. The court refused to extend this benefit to Alemao, though his lawyer had argued forcefully that it applies more to Alemao than Kamat:

“The case in hand is similarly placed as present applicant (Alemao) was denied bail on merit whereas other accused (Kamat) was granted bail on the basis of violation of mandatory provision of the Code. It has been already observed that the Investigating Officer has complied with the said provision of the Code as far as present applicant is concerned and therefore case of applicant is not similarly placed as that of other accused who has been granted anticipatory bail.”

“… the fact remains that there is a record in the case dairy that custodial interrogation of the applicant is necessary to unearth conspiracy and to find out about missing file as well as to find out bribe money and after considering it, this court granted police remand (to Alemao). Therefore case of the applicant is not similar to that of other accused (Kamat) in this regard and hence applicant is not entitled to claim any benefit of alleged violation of Section 41 of the Code.”

Conscience of Judge revolts?

Alemao’s Mumbai-based lawyer Shrikant Shivade had forcefully argued for ‘rule of parity’ to grant bail, since another ‘main co-conspirator’ in the bribery case was already granted anticipatory bail. But the court had a different point of view:

“That parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of co-accused are allowed. Even then the court has to satisfy itself that on consideration of more material placed, further developments in the investigation or otherwise and other different considerations, there is sufficient ground for releasing the applicant on bail”.

While refusing the bail on the ground of parity, Judge Deshpande quoted from the case of Nanha Nabhan Kha v/s State of UP of 1993.

“… The word ‘parity’ means the state or condition being equal or on a level; equality; equality of rank or status. In other words it means being placed at the same footing. While considering of different accused, the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing... Nonetheless the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and strait-jacket to grant bail automatically. There may be a case which may require an exception, where the conscience of the judge revolts in granting bail. In such a situation the judge may choose to depart from the rule by recording his reasons.”

 

What Churchill did which Digambar didn’t?

The observations laid down by Judge Deshpande are self-explanatory:

“Now coming to the role allegedly played by the present applicant (Alemao) and the other accused (Kamat), it has to be noted that the record clearly shows that the applicant had deliberately kept the file of the project pending and also formed separate committees even though it was not permissible as per JICA regulations with the only intention to take the project in his control and pressurized the consultant to accept the terms. Notings in the files and remarks of the Chief Secretary speak for itself and therefore role played by the present applicant is much different and more specific than the role of other accused, who is granted anticipatory bail only on technical ground.”

Change in circumstances shouldn’t be cosmetic: HC

The CBI court has outrightly rejected Alemao’s claim that he has come back for bail within three days since there is ‘change in circumstances’ with Digambar Kamat being granted anticipatory bail.

“Granting of bail to other accused (Kamat) on technical ground in same crime cannot be considered as change in the circumstance of the case of present accused (Alemao) as such change has to be in connection to the case/allegations/ evidence against the accused who is claiming bail on such ground…”

“In that context the High Court has observed that there has to be a substantial change in the circumstance and not only cosmetic change.”

“The contention raised therefore has to be considered on the basis of the observations of the High Court that there has to be a substantial change which presupposes that such change has to be in the investigation of the matter and not granting of bail to co-accused.”

It is learnt that Alemao is now planning to approach the high court, challenging rejection of his bail twice.

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