New Delhi: The Supreme Court on Tuesday made some crucial observations, which may likely have an impact on the alleged Delhi liquor policy case, regarding the fairness and impartiality of the central agencies probing opposition politicians, while granting bail to Bharat Rashtra Samithi leader K Kavitha.
A bench comprising justices BR Gavai and KV Viswanathan shot a volley of questions at additional solicitor general SV Raju, representing the Enforcement Directorate and the CBI, who vehemently opposed any relief for Kavitha.
During the hearing, Raju claimed that she either destroyed phones or formatted them and pointed at her conduct, which included tampering with evidence and influencing witnesses.
“Mr Raju is a private thing…I am on human conduct. People delete messages and I have a habit of deleting messages, and group messages (school and college groups). The normal course of human conduct”, said Justice Viswanathan.
Raju replied that one may delete messages but why format the phone? Why delete contact history and why no data on the phone?
Justice Gavai asked Raju, “What is the material to show that she is involved in the crime?” Justice Viswanathan said, “As the brother said it. This is negative proof; you must have something positive”.
The bench queried Raju, why the status of a person cannot be grounds for bail, while pointing at the observations made by the High Court regarding Kavitha’s educational qualifications and added that she has deep roots in society.
Raju said that the status of a person cannot be a ground to grant bail and that the court should look at her role in the scam, and insisted that her phone may contain crucial evidence.
“Do you have anything independent to show that this was the evidence, which was there and which was tampered with? This only shows that the cell phone was formatted. Unless you show…otherwise it shows only a phone was formatted. For tampering evidence, you need…”, said Justice Viswanathan, seeking specific details regarding evidence against Kavitha.
Raju said, “We have two CDRs, which show she was talking with the other accused. There is one accused in the CBI case and not ED. There are chats with that person in his phone, but in her phone, it is deleted”.
Raju referred to “evidence" by former accused Bucchi Babu and Raghav Magunta Reddy, who later became government witnesses and received pardons in April last year and March this year, respectively.
The bench stressed that the prosecution has to be fair and it cannot pick and choose anyone. “Prosecution has to be fair. You cannot pick and choose anyone. What is this fairness? A person who incriminates himself has been made a witness! Tomorrow, you pick up anyone as you choose and leave anyone as you choose?”, said Justice Gavai, adding the court will make these observations if the agencies’ counsel wants it.
Justice Viswanathan said, referring to an approver, “Now he has a status higher than an approver because he is a witness…but the substance shows that he is directly involved…”. Raju said even as a witness he will be subject to cross-examination.
“But he will not have the status of an accomplice though in substance (he is) an accomplice”, said Justice Viswanathan. Justice Gavai said the court would have to make observations (in the bail order) about the fairness and impartiality of the investigating agency and told Raju, “If you want those observations, you argue more…”.
The bench said there are three grounds to grant bail to Kavitha: the investigation is complete and the chargesheet is filed, in the ED case the complaint is also filed, and there are 493 witnesses and the likelihood of the trial not being concluded within a short period.
Justice Gavai said the court will have to give reasons for granting bail to Kavitha and told Raju, “If you argue (more), but then you invite every objection…observation regarding the unfair conduct of the investigating agency. Any observation about unfair investigation, we do not know what effect it will have. Or, otherwise, we are restricting on only these three grounds”. Justice Gavai said. He added that regarding tampering of evidence, "we will impose conditions" and criticized the high court’s observations that an educated and sophisticated woman is not entitled to bail.
Justice Gavai stated, "We must address this issue; otherwise, it will become established law in the eyes of the Delhi High Court. According to the court's observations, no educated woman will be entitled to benefits. We will argue that these observations are misguided. If they stand, every woman within the jurisdiction of the Delhi High Court could be affected, as a high court judgment is binding on all lower courts within its jurisdiction, though not necessarily on other High Courts."
Kavitha was arrested by the ED in March in the liquor policy case and the CBI the following month. Senior advocate Mukul Rohatgi, representing Kavitha, during the hearing, cited that out many of the same statements, by the same individuals, had been cited as evidence in related cases, particularly those involved Delhi Chief Minister Arvind Kejriwal, who was arrested in March, days after his client’s arrest. It was argued that the agencies say that Kejriwal is the kingpin, then they say Manish Sisodia is the kingpin, and then K Kavitha is the kingpin! Rohatgi stressed that there is no evidence apart from the approvers' tainted statements.
Justice Gavai told Raju that he was arguing before a bench which has granted bail to an accused against whom there are more serious allegations and he (Sisdoia) was supposed to be the kingpin. Sisodia was granted bail after suffering 17-month-long incarceration.
The apex court noted that Kavitha has also spent months in jail without a trial, and there is no reason to keep her in prison, given there is no likelihood of a trial being conducted soon.
The apex court said that the law provides special treatment for women while considering bail applications while citing a provision in Section 45 of the Prevention of Money Laundering Act that permits certain categories of accused, including women, to be released on bail without (satisfying) twin requirements.
The observations made by the apex court will play a crucial role in the future hearing in the alleged Delhi excise policy case, as it appears that the agencies are heavily relying on statements by former accused-turned-approvers. Earlier this month Sisodia was granted bail in the case.
Read more: BRS Leader K Kavitha Released from Tihar Jail After SC Grants Bail In Excise Policy Case
