"The status of a person changes in law after filing of the chargesheet. They are not entitled to release on bail ipso facto (by default) on appearance before the court. From being suspects, they have now become accused and hence, will have to justify their bail plea," senior advocate U U Lalit, who has been appointed as a special prosecutor by the Supreme Court, said.
"There are nearly 180 prosecution witnesses and some of them are under political perception of threat," Lalit said and gave some classified documents to CBI Judge O P Saini who has been appointed to hear exclusively the 2G case on a day-to-day basis.
After defence lawyers sought a copy of the document, Lalit said "it is not for you. I may use them in our reply."
The plea drew sharp reactions from defence lawyers, including senior advocates Mukul Rohatgi, K T S Tulsi and Ranjit Kumar who said it is the CBI, in fact, which will have to justify the arrest in the backdrop of the fact that the accused were not arrested during the investigation.
Top corporate leaders Swan Telecom Director Vinod Goenka, Unitech Wireless (Tamil Nadu) Ltd Managing Director Sanjay Chandra, and three top officials of Reliance ADA Group Gautam Doshi, Surrendra Pipara and Hari Nair appeared in the packed courtroom alongwith a battery of lawyers. They were not arrested in the case.
Within minutes of commencement of hearing, Rohatgi, appearing for Vinod Goenka of Swan Telecom, moved the bail application saying "the accused is entitled to release on bail."
"The chargesheet has already been filed, cognizance taken. If an accused is not arrested during the investigation, then there is no question of his arrest subsequently," Rohatgi said.
"What is the apprehension of the CBI? I have appeared before it during the investigation and now I am before the court and there is no precedent that the accused is denied bail after being summoned in such a case," he said.
The maximum sentence in such cases is seven years and the prosecutor has made an argument as if it is a heinous offence, Rohatgi said, adding "cite a case where bail is denied to an accused who is summoned after filing of the chargesheet in such cases".
"The prosecutor has made a topsy-turvy argument. The court could have issued a warrant but the summons were issued," he said.
Endorsing the plea of Rohatgi and Tulsi, arguing for MD of Unitech Ltd Sanjay Chandra, said "can the prosecution, at its whims and fancy, change its view? No circumstances have changed except the change in the prosecutor."
"When a person is not required for custodial interrogation, he shall not be arrested at the time when he appears before the court. It is a pressure tactics by CBI," Tulsi said, adding "they are opposing the bail just for the sake of opposing."
The defence lawyers said they were willing to abide by any conditions to be imposed by the court. Responding to this, Lalit said "the arrest of accused during the investigation and arrest at the time of appearance are two different things."
"Every suspect is not required to be arrested but after a suspect becomes an accused, he will have to justify the plea for bail," Lalit said while citing a legal provision which envisages that an accused could be put behind bars during the trial.
"It is an enormous case and the accused must satisfy the court about their plea as it is between them and the court," he said and sought time for filing replies to the plea of the accused.
The court then posted the matter for further hearing on April 15 and asked CBI to provide a copy of its reply to the accused in advance.
The court ordered that status quo regarding the accused be maintained and asked the corporate honchos to remain present during the next hearing.
It also asked CBI to supply the documents and the chargesheet to the accused.
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