‘If investigation is an art, anyone can be implicated artistically’ — court in Kejriwal bail order

‘if investigation is an art, anyone can be implicated artistically’ — court in kejriwal bail order

‘If investigation is an art, anyone can be implicated artistically’ — court in Kejriwal bail order

New Delhi: Coming down heavily on the Enforcement Directorate (ED) which defended use of approvers’ statements against Delhi Chief Minister Arvind Kejriwal by saying investigation is an “art”, Special CBI Judge Niyay Bindu said in her order granting him bail that this line of argument would open the doors to false implication of innocent persons.

This, said the order, could be done by “artistically” procuring materials and evidence against innocent persons and “artistically” hiding facts favouring them from court proceedings.

Additionally, the vacation bench also emphasised a lack of “direct evidence”, besides “nothing on record” to prove Vijay Nair worked at Kejriwal’s behest, the untraced Rs 60 crore — of the Rs 100 crore alleged to be proceeds of crime — and the agency’s lack of explanation for its claim that said proceeds were utilised during Goa assembly polls.

Taking a leaf out of the Supreme Court’s 10 May order granting Kejriwal interim release, Judge Bindu noted that the Aam Aadmi Party (AAP) chief does not have any “criminal antecedents” and his challenge against his arrest on 21 March by the ED is still pending before the apex court.

“An important submission has been made by Ld. (learned) ASG during the arguments on behalf of ED whereby making submissions in respect of the credibility of the approvers that investigation is an art and sometimes one accused is given lollypop of bail and pardon and induced with some assurance to make them tell the story behind the offence,” read the Special CBI court order granting Kejriwal bail.

“The court has to take a pause to consider this argument which is not an potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/withdrawing exculpatory material from the record. This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias,” noted the order.

On Friday, the ED moved the Delhi High Court challenging the bail order passed by the lower court.

The ED has argued that Kejriwal was the kingpin of the alleged Delhi Excise Policy scam, a probe into which has been ongoing for nearly two years since the Central Bureau of Investigation (CBI) first filed a FIR in July 2022 naming Kejriwal’s former deputy Manish Sisodia as an accused.

Kejriwal was chargesheeted by the ED in this case on 16 May and the Aam Aadmi Party also named as an accused, making it the first political party ever to have been named as an accused in a criminal case.

The ED has consistently alleged that Kejriwal was the main architect of the now-withdrawn Excise Policy 2021-22 and that he negotiated with the so-called ‘South Group’ to extract a kickback of Rs 100 crore for his party.

ED ‘silent’ on claims, its contention ‘not acceptable’

The Special CBI judge further noted in her order that the Investigating Officer (IO) could not furnish a proper timeline of the investigation or state how much time it would require to unearth the remaining Rs 60 crore proceeds of crime and trace the money trail.

On the argument that Kejriwal must not be granted bail until the money trail is established since he could influence witnesses and the probe in general, the court termed it “not acceptable”.

It also noted that the ED has been silent on its claim that alleged proceeds of crime were spent during the Goa assembly elections, more so because even after two years a “bigger portion” of said proceeds remains untraced.

The agency, it said, has not been able to counter Kejriwal’s objection that delayed summonses to him nearly a year after it first acquired material against him in July 2022 shows “malafide intentions”.

Highlighting other facets of the case, the court also noted that ED has been silent over the fact that Kejriwal was not named as accused in either the CBI’s FIR or the ECIR — equivalent of FIR — registered by ED, and that his name surfaced only later in statements of the co-accused.

Kejriwal, it said, has been in judicial custody even without facing summons from the court “on the pretext of” the ongoing investigation.

‘ED too believes evidence not sufficient’

Special CBI Judge Niyay Bindu further noted in her order that the ED has been alleging that Vijay Nair, one of the accused, was a close associate of Kejriwal but stressed that the agency has not been able to bring “anything on record” to establish Nair was working at his behest.

On co-accused Charanpreet Singh, who the agency alleged is another close associate of Kejriwal and sponsored his stay in Goa, the judge questioned how ED tried to establish Delhi CM’s guilt citing this aspect.

The ED had also alleged that another accused, Vinod Chauhan, carried the alleged kickback from the ‘South Group’ to the AAP and that the agency seized approximately Rs 1 crore from his residence.

The court opined that even if Kejriwal’s close association with Nair, Charanpreet or Chauhan is established, the ED has failed to establish that the seized amount of Rs 1 crore was part of the alleged proceeds of crime.

It added that the ED has so far even failed to establish how the traced Rs 40 crore are linked to the alleged overall proceeds of crime in this case.

“ED is harping upon certain contents of the chargesheet i.e. Vijay Nair stayed at the house of Kailash Gehlot and Mr Nair is having close relations with the applicant. Secondly, that the stay of the applicant in seven star hotel at Goa was sponsored by co-accused Charanjeet which shows the close proximity of both of them. Thirdly, that an amount of rupees one crore was attached from the residence of a co-accused who is an associate of the applicant,” the judge noted in the order.

“On the other hand, ED is silent on certain issues raised by the applicant such as that he (Kejriwal) was not named either in CBI case or in the ECIR FIR. Secondly, the allegations against the applicant have surfaced after the subsequent statements of certain co-accused. Thirdly, this is also an admitted fact that the accused has not been summoned by the court till date, yet, he is lying in the judicial custody at the instance of ED on the pretext of the investigation being still going on,” added the order.

It went on to say, “In addition to the same, ED has not shown anything on record that Vijay Nair was acting upon the directions of the applicant. It has also failed to establish that even if Vinod Chauhan has close relations with Charanpreet, how come the same going to help ED to establish the guilt of the applicant, even if the applicant is having acquaintance with both of these co-accused.”

“ED has also failed to clarify as to how it came to the conclusion that the sum of rupees one crore attached from Vinod Chauhan was the part of the proceeds of the crime. ED is also not clarifying as to how the alleged amount of rupees 40 crores being traced out during the investigation is forming a part of the proceeds of the crime,” it added.

“It seems that ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever to convince the court with respect to the availability of the evidence against the applicant. The investigation agency should be prompt and fair so that it can be perceived that the principles of natural justice are also being followed by the agency,” read the order.

(Edited by Amrtansh Arora)

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