Manas Dasgupta
NEW DELHI, Aug 27: The Supreme Court on Tuesday granted conditional bail to Bharat Rashtra Samithi leader K Kavitha who was arrested by both the Enforcement Directorate and the Central Bureau of Investigation in connection with the alleged Delhi liquor policy scam in which the Delhi Chief Minister Arvind Kejriwal and his former deputy, Manish Sisodia, are also named.
Ms Kavitha is the second big opposition leader to get bail in this case; Mr Sisodia, who was arrested in February last year, was released earlier this month after the Supreme Court noting a delay in trial in his case too had observed that he could not be kept in the jail for an unlimited time violating his fundamental rights. Arrested by both the agencies now only Mr Kejriwal remains in jail having got bail in the ED case but not, yet, in that filed by the CBI. The Supreme Court this month refused relief.
A two-judge bench of Justices BR Gavai and KV Viswanathan pointed Ms Kavitha – like Mr Sisodia – had already spent over five months in jail and that “the trial is not expected soon,” even if the investigation has been closed. “We find the investigation is complete. As such, custody of appellant is not necessary… she is in jail for five months and, as observed with Sisodia, likelihood of trial be in near future is impossible…” it said.
The court also noted “the law provides special treatment for women while considering bail applications,” referring to provisions in Section 45 of the Prevention of Money Laundering Act that “permits certain category of accused, including women, to be released on bail without (satisfying) twin requirements.”
On this note the Supreme Court strongly objected to the Delhi High Court rejecting Ms Kavitha’s plea – on grounds she is an educated woman. The High Court had said in July that Ms Kavitha could not be given bail – despite arguments that it was “normal practice” for women to be released on bail – as her education and status (of a former Member of Parliament) meant she was not a ‘vulnerable’ woman.
Arguing the High Court had “totally misapplied” the relevant section of the law, the Supreme Court said, “… the courts, while deciding such matters, should exercise discretion judicially. The court cannot say that merely because a woman is highly educated, or an MLA, (she) should be denied benefit of bail.” “(Then) every arrested woman will get bail…” the prosecution argued in vain.
Shortly after the bail order was passed the BRS posted on X, “She was illegally imprisoned for 166 days… without showing of any evidence. Justice finally won in a politically motivated case.” Ms Kavitha’s brother, BRS Working President KT Rama Rao, was in court when bail was granted.
Earlier senior advocate Mukul Rohatgi argued it was “normal practice” for women to get bail. The plea also identified her as mother of two kids, one of whom is a minor in shock and undergoing medical care. He also pointed out Ms Kavitha had, by now, spent over five months in jail without either agency having recovered the ₹ 100 crore the ‘South group’ allegedly paid to the AAP for liquor licenses.
“She is an ex-MP and there is no chance she will flee from justice…the normal practice is that women do get bail,” he stressed, to which the court responded, “(But) she is not a ‘vulnerable’ woman.” “There is no recovery… allegation is ‘South’ lobby paid ₹ 100 crore but there is no recovery. The allegation is also she threatened a witness but it is only their word…” Mr Rohatgi replied.
The argument then shifted to claims by the prosecution that Ms Kavitha had deleted text messages – key evidence, it was argued – from her mobile phone and then reformatted the device. In June authorities accused her of having wiped clean eight mobile phones and reformatted at least one. However, Ms Kavitha has denied this claim. And today Mr Rohatgi hit out at the ED’s “bogus” claim”, arguing, “How can you say I ‘destroyed’ my phone… people change phones. I changed my phone.”
The prosecution, though, questioned Ms Kavitha’s actions, counter-arguing, “Why would you give a maid or a servant an iPhone (authorities had earlier said the BRS leader gave one of the reformatted phones to her maid)… her conduct amounts to tampering (with evidence).”
The prosecution also questioned how a phone used by a senior political leader for at least four months could contain no messages. “On examination of the phone it is found there is no data (but) you have been using the phone for four to six months?”
The Supreme Court, though, was unconvinced, and pointed out that “people delete messages”. “I have a habit of deleting messages… normal conduct. Any of us in this room (do it),” Justice Viswanathan said, but the prosecution responded, “You do not delete contacts, history…”
The Supreme Court has imposed various conditions on Ms Kavitha, including directing her to not tamper with evidence or influence witnesses. She has also been told pay bail bonds of ₹ 10 lakh each – one for the ED and another for the CBI cases – and surrender her passport.
The court also made some significant observations which could have impact on future hearings in the Delhi liquor policy case as it questioned the “fairness” in the investigations by both the agencies directed only at opposition politicians and others in the matter.
The bench observed the federal agencies could not rely only on statements made by former accused persons who have turned ‘approver’, or become prosecution witnesses. “You have to be fair… a person who incriminates himself has been made a witness? You cannot pick and choose… What is this fairness?” the court wanted to know.
Arguing against Ms Kavitha, Additional Solicitor General SV 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. Mention of approvers’ statements featured heavily in bail pleas filed by Mr Kejriwal and Mr Sisodia before the Supreme Court. Mr Sisodia was granted bail by the top court earlier this month.
The court then had noted that he had spent nearly 18 months in jail and there was no prospect of a trial anytime soon. To keep him in prison, the court said, would be a “travesty of justice.” Mr Kejriwal, who has also contested charges against him by noting the material is based on approvers’ statements, remains in jail.
The court reasoned that there were 493 witnesses in the cases. The completion of the trial in the near future would be impossible. The court said the ED has filed its prosecution complaint (equivalent of a chargesheet) and the CBI has filed its chargesheet in the predicate offence. There is no need for her continued custody.
The court granted Ms Kavitha the special privilege accorded to women, and granted exception from meeting the twin requirements under Section 45(1) of the Prevention of Money Laundering Act (PMLA). According to Section 45 of PMLA, bail can be granted to an accused in a money laundering case only if the twin conditions — there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail — are satisfied.