In a major setback to the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) and a big relief to Bharat Rashtra Samithi (BRS) leader Kalvakuntla Kavitha, the Supreme Court on Tuesday granted her bail in the now-scrapped Delhi excise policy 2021-22.
A Bench of Justices BR Gavai and KV Viswanathan passed the order after noting that the investigation is over and trial will take a long time to conclude.
The bench also questioned the fairness of the prosecution agency (CBI/ED) and criticised their selective approach in treating some accused as approvers. It also asked the ED and the CBI about the "material" they had to show that Kavitha was involved in the alleged scam.
The bench noted that the investigation is complete and chargesheet/prosecution complaint has been filed in both the CBI and ED cases. Hence, the custodial interrogation of the petitioner, who has been behind the bars for over five months, is no longer necessary.
Also, the trials in both cases are unlikely to be completed soon since there are about 493 witnesses to be examined and the documentary evidence runs into nearly 50,000 pages. "The appellant (Kavitha) is directed to be released forthwith on bail… on furnishing bail bonds in the sum of `10 lakh in each of the cases," the bench said, while allowing her appeals against the July 1 verdict of the Delhi High Court which had denied her bail in the two cases.
“The appellant (Kavitha) shall not make any attempt to tamper with the evidence or influence the witnesses. The appellant shall deposit her passport with the learned Trial Judge. The appellant shall regularly attend the Trial Court and cooperate with the expeditious disposal of the trial,” reads the order. Later in the day, a city court issued release warrants for Kavitha, paving the way for her release from jail.
The Supreme Court’s decision has given hope to AAP convener and Chief Minister Arvind Kejriwal whose bail petition is pending in the apex court. Kejriwal’s legal team is expected to argue the case on the basis of bail granted to Kavitha and Manish Sisodia in the same case. Special Judge Kaveri Baweja issued the release order for Kavitha after being informed that the politician was granted bail earlier in the day by the SC in both the cases.
The bench reiterated its observation in the Manish Sisodia judgment that the undertrial custody should not be turned into a punishment. It also set aside a July 1 order of the Delhi High Court which denied bail to the BRS leader in the two cases. The Delhi HC on July 1 had denied bail to Kavitha. Among other grounds, Justice Swarana Kanta Sharma held that Kavitha was a “well-educated” woman who could not be considered “vulnerable”, so the exception would not apply to her. A trial court order by Judge Kaveri Baweja had interpreted the provision on the same lines to deny bail to Kavita.
Both CBI and ED came in for some sharp criticism over the "fairness" of their investigation, with the apex court observing "Sorry to see this state of affairs". "You will pick and choose anyone?" it asked, while referring to one of the witnesses whose statements were read out in the court during the arguments. "The prosecution has to be fair. You can't pick and choose anyone. What is this fairness? A person who incriminates himself has been made a witness," the bench said, adding, "Tomorrow you will pick up anyone as you choose and leave anyone as you choose as an accused? Very fair and reasonable discretion!"
When Additional Solicitor General S V Raju, appearing for the probe agencies, referred to some witnesses who have claimed Kavitha's involvement in the alleged scam, the court told him it would be compelled to "observe everything" if he tried to pull it into the details."We will have to observe about the fairness and impartiality of the investigating agencies," it said, adding, "If you want those observations, you argue more".
During the argument, Raju had referred to "independent evidence" by former accused Bucchi Babu and Raghav Magunta Reddy, who transformed into government witnesses (and received pardons) in April last year and March this year, respectively.
However, senior advocate Mukul Rohatgi, appearing for Ms Kavitha, pointed out many of the same statements, by the same individuals, had been cited as "evidence" in related cases, particularly that involving Delhi Chief Minister Arvind Kejriwal, who was arrested in March, days after Ms Kavitha.
"You say Kejriwal is kingpin... say (ex-Delhi Deputy Chief Minister Manish) Sisodia is kingpin... then say I (K Kavitha) am kingpin! There is no evidence apart from approvers' tainted statements!"
At this point the court stepped in, observing approvers' statements needed to be backed up by direct evidence. "What is the material to show she was involved in the crime?" Justice Gavai asked Mr Raju. The top court's observation is being seen as critical in the context of the liquor policy case, much of which, it appears, depends on statements by former accused-turned-approvers.
During the hearing, Justice Gavai also asked the ASG whether any distinction can be drawn between an ordinary woman and a woman of high status while considering the applicability of proviso of Section 45 PMLA. ASG said that status of a person can have no relevance and it is the role in the crime which matters.
ASG Raju argued that when she was summoned, her phone was found to have been formatted to erase all call records, FaceTime data etc. At this juncture, Justice Viswanathan said, "Phone is such a private thing, would anyone share the details with anyone? People delete messages. I have the habit of deleting group messages. These school and college groups post many messages. Let us see the normal human conduct. Any one in this room would do.."
ASG further argued that it was not a regular formatting or a deletion of sensitive data but the formatting of the entire data which would amount to tampering with the evidence. “You are arguing from the reverse. What is the material to show she is involved in the crime?" Justice Gavai said.
