Prima facie erroneous: Delhi HC stays trial court order for action against CBI IO in excise case

New Delhi, Mar 9 (PTI) The Delhi High Court on Monday stayed a trial court recommendation on initiation of departmental action against the CBI's investigating officer in the excise policy case and sought the stand of former chief minister Arvind Kejriwal and 22 others on a petition by the agency challenging their discharge in the matter.

Issuing notice to all 23 accused, Justice Swarana Kanta Sharma said certain observations and findings of the trial court at the stage of framing of charges "prima facie appear erroneous and need consideration".

Justice Sharma further said the reasons given for passing "scathing remarks" against the Central Bureau of Investigation (CBI) official, including that he abused his official position to conduct an unfair investigation, were "prima facie foundationally misconceived, especially when made at the stage of charge itself".

"Needless to say, at this stage, the reasons given for passing such remarks are also under challenge in the present petition and need consideration as opined by this Court. In view of the aforesaid, the observations limited only qua the Investigating Officer are stayed, till the next date of hearing, including the direction recommending departmental action against him," the court said in its order.

"This Court is of the opinion that certain factual discrepancies pointed out in the impugned order, the observations made by the learned Trial Court regarding statements of the witnesses and the approvers, at the stage of charge itself, prima facie appear erroneous and need consideration when viewed in the background of well-settled law on charge and conspiracy," it added.

The court listed the matter for hearing on March 16 and directed that replies be filed by Kejriwal, former deputy chief minister Manish Sisodia and others by then.

It further directed the trial court to adjourn the connected money laundering case probed by the Enforcement Directorate to a later date and await the outcome of the CBI's petition.

During the hearing, Solicitor General Tushar Mehta, on behalf of the investigating agency, urged the court to stay the operation of the "prejudicial" remarks by the trial court on the CBI officials.

Mehta urged the court to finally decide the CBI's plea by fixing a time schedule for the hearing.

He contended that the trial court order discharging Kejriwal and Sisodia in the excise policy case was perverse and "turned the criminal law on its head".

The excise policy case was one of the biggest scams and a clear case of corruption, he alleged.

"This is one of the biggest scams in the history of the capital of this nation and therefore, a national shame. Scientific investigation is carried out," Mehta submitted.

Asserting that the trial court passed an order of acquittal in favour of Kejriwal, Sisodia and others without a trial, Mehta contented that meticulous evidence was collected by the agency to show conspiracy and bribery for a manipulated liquor policy, which "cannot be brushed away".

There is enough evidence against Kejriwal, Sisodia and other accused for framing charges, and the CBI's case was supported by the approvers and witnesses, he added.

Mehta submitted that the discharge order relied on the lack of "independent corroboration" for approver statements when such corroboration was not required at the stage of framing charges.

Requirement of corroboration for approver evidence applies at the stage of conviction and not at the stage of framing charges, he said.

He submitted that around 170 mobile phones were changed or destroyed by the accused and other related people during the period of the scam, and despite such destruction of evidence, the CBI recovered evidence to show the criminal conspiracy and the role of the accused persons.

Mehta said the material on record undeniably established a grave suspicion of a systematic criminal conspiracy among the accused to manipulate the Delhi Excise Policy 2021-22 for illegal gratification, which was followed by money laundering and utilisation of the proceeds for the AAP's election expenditure for the Goa elections.

On February 27, the trial court discharged Kejriwal, Sisodia and 21 others, pulling up the CBI by saying its case was wholly unable to survive judicial scrutiny and stood discredited in its entirety.

The trial court ruled that the alleged conspiracy was nothing more than a speculative construct resting on conjecture and surmise, devoid of any admissible evidence. Therefore, to compel the accused to face the rigours of a full-fledged criminal trial in the stark absence of any legally admissible material did not serve the ends of justice, it said.

Among the 21 people given a clean chit in the case is Telangana Jagruthi president K Kavitha.

While Kejriwal was in jail for six months in the case, Sisodia was behind bars for almost two years.

The CBI has been probing alleged corruption in the formulation and execution of the erstwhile AAP government's now-scrapped excise policy.

In its revision petition filed soon after the trial court's decision, the CBI said the discharge order was patently illegal, perverse and suffered from errors apparent on the face.

The petition contended that the trial court conducted a "mini-trial" at the stage of framing of charges and passed the discharge order on a "selective reading of the prosecution case".

Not only did the trial court fail to appreciate the facts of the case, but it also passed unwarranted adverse remarks against the investigating agency and the investigating officer, the plea claimed.

"In substance, a case of rampant corruption, emanating from the highest levels of executive, has resulted in a discharge owing to incorrect conclusions being drawn to impute aspersions on the investigating agency, when the record of the case, which is to be treated as uncontroverted at this stage, speaks otherwise," the petition stated.

In the discharge order, the trial court said the investigation appeared to have proceeded on a predetermined trajectory, implicating virtually every person associated with the formulation or implementation of the policy to lend an illusion of depth and credibility to an otherwise fragile narrative.

It said that the endeavour to further connect such allegations to the Goa Assembly elections to project utilisation of alleged proceeds of crime rested more on inference and assumption than on legally sustainable material. PTI ADS DIV DIV