In a significant observation – which could have a big impact on future hearings in the alleged Delhi liquor policy case – the Supreme Court has questioned the Enforcement Directorate and the Central Bureau of Investigation‘s “fairness” as they investigate opposition politicians and others in this matter.

A two-judge bench of Justices BR Gavai and KV Viswanathan 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.

This came after the prosecution challenged the bail plea by Bharat Rashtra Samithi leader K Kavitha, who was arrested by the ED in March in the liquor policy case and the CBI the following month.

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”.

READ | “Travesty Of Justice”: Sisodia Gets Bail, Top Court Slams Delay

Mr Kejriwal, who has also contested charges against him by noting the material is based on approvers’ statements, remains in jail. He was given bail in the ED case but not yet in the CBI case.

Formatting Phone Not “Criminal”

Moving on, the court also dismissed the prosecution’s claim that Ms Kavitha had deleted incriminating content from mobile phones by formatting them.

“Phones are a private thing… people delete messages (all the time). I have a habit of deleting group messages… these school and college groups post many messages. (This is) normal human conduct… anyone in this room will do the same thing,” Justice Viswanathan told the prosecution.

READ | “As Observed In Manish Sisodia…”: What Supreme Court Said

Merely formatting a phone could not, the court argued, “lead to any inference of criminality”. “You have independent data to show there is any incriminating evidence? Otherwise this (material presented) only shows the mobile phone was formatted,” Justice Viswanathan said.

Bail For K Kavitha

Meanwhile, moments after the court’s tough questions to the agencies, Ms Kavitha got bail.

In doing so the court also noted she too had spent months in jail without a trial, and that to keep her in prison, given “likelihood of trial be in near future is impossible”, would violate fundamental rights.

READ | “Just Because Woman Is Educated…”: Court’s Rap As Kavitha Gets Bail

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.”

The prosecution had argued against bail on this ground, declaring Ms Kavitha’s status as an educated woman and former MP, excluded her from being a ‘vulnerable’ person.

READ | Delhi High Court Rejects K Kavitha’s Bail Pleas In Liquor Policy Case

The Supreme Court, though, disagreed and rapped the lower court, stating it is wrong to conclude a woman cannot get bail “… merely because she is well-educated, or sophisticated, or a Member of Parliament…” “We find the learned single bench totally misdirected itself,” the top court said.

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