The Delhi High Court on Monday stayed the adverse observations made by the trial court against the Central Bureau of Investigation (CBI) and its investigating officer in its verdict discharging all 23 accused including Aam Aadmi Party (AAP) leaders Arvind Kejriwal and Manish Sisodia in connection with the Delhi excise policy case.

Justice Swarana Kanta Sharma also directed the trial court to postpone the hearing in the money laundering case connected to the matter till the Court decides CBI's revision plea against the trial court verdict.

"I will pass an order of stay with regard to whatever remarks and statements are made against the investigating agency and officer. I will ask the trial court to postpone the hearing of the PMLA case to a date after the hearing before this court," the judge said.

She then issued notice to the accused persons and asked them to file their replies to the CBI's plea.

The CBI filed the revision petition challenging the trial court's verdict of February 27.

Solicitor General Tushar Mehta, appearing for CBI, said that he is, for now, not seeking a stay on the discharge of the accused, but only a direction that the trial court verdict will not affect the money laundering case being probed separately by the Enforcement Directorate (ED).

"It's a peculiar way in which the discharge has taken place. I understand that the stay of the judgment would mean that the trial takes place. I would not ask for that, but this is a CBI case based on which the ED case is proceeding. This judgment may not affect that. My ladyship may stay this saying that the ED case will not be affected," he said.

He further said that the excise policy scam is one of the biggest in the nation's history.

"This is one of the biggest scams in the history of the capital of this nation and in my opinion a national shame. Scientific investigation was carried out. Each and every aspect of conspiracy was established," he contended.

He also argued that there were witness statements which clearly established a conspiracy.

"There were 164 [CrPC] statements. There are witnesses who clearly elaborate how the conspiracy was hatched, how the bribe was paid, and to whom the bribe was paid. There is one person called Vijay Nair, he is the communications incharge of the political party... ₹19 crore to ₹100 crore bribe was paid in lieu of favours given. Out of this, ₹44.50 crore were transferred by hawala, and meticulous scientific investigation demonstrates that the money went to Goa to fund the elections for the party," it was contended.

Background

Special judge Jitendra Singh had on February 27 discharged all the accused in the case, holding that the prosecution case does not survive judicial scrutiny as the CBI had tried to construct a narrative of conspiracy on the basis of mere conjecture.

Hence, it ruled that the case did not merit a trial.

The case arose in 2022 when the CBI registered a First Information Report (FIR) alleging that the Delhi Excise Policy of 2021-22 was manipulated to facilitate monopolisation and cartelisation of liquor trade in Delhi.

The CBI case was registered on a complaint made by Lieutenant Governor VK Saxena on July 20, 2022. 

The probe agency said that the Aam Aadmi Party (AAP) and its leaders received kickbacks from liquor manufacturers due to manipulation of the policy. The Enforcement Directorate (ED) also later registered a case under the Prevention of Money Laundering Act (PMLA) in the matter.

What followed was a series of arrests of opposition leaders, criticised by some quarters as being politically motivated.

It was alleged that a criminal conspiracy was hatched by AAP leaders, including Sisodia and Kejriwal and other unidentified and unnamed private persons/entities at the stage of the policy’s formulation.

The conspiracy, it was alleged, involved loopholes “intentionally” left or created in the policy. These loopholes were allegedly meant to favour some liquor licensees and conspirators post the tender process, it was claimed.

Based on its claims, the CBI chargesheeted 23 accused.

The political leaders spent a considerable time in jail as the Rouse Avenue Court and the Delhi High Court denied them bail. It was the Supreme Court which later granted them relief.

However, the trial court on February 27 discharged all the accused.

The special court also pulled up the CBI for building its case through approver statements.

"If such conduct is allowed, it would be a grave violation of the Constitutional principles. The conduct where an accused is granted pardon and then made an approver, his statements used to fill the gaps in the investigation/narrative and make additional people accused is wrong," the judge said.

In its criminal revision petition, the CBI said that the order passed by the special judge on February 27 is "patently illegal, perverse and suffers from errors apparent on the face".

The CBI argued that the judge essentially conducted a mini-trial and dealt with separate limbs of conspiracy in isolation.

According to the plea,

"The Ld Special Judge has passed the impugned order on a selective reading of the prosecution case, disregarding the material showing the culpability of the accused."

Further, as per the petition, the judge's order directing departmental action against the CBI officer who investigated the case is "shocking to say the least".

The plea stated that while making observations in the court during pronouncing the discharge order, the judge orally stated that he had spent the last four months reading only the file of the case, which shows appreciation of evidence in great details and the same is not permitted at this stage of framing of charge.

The revision plea said that the trial court erred in analysing the role of Arvind Kejriwal and Manish Sisodia.

"The Ld Special Judge has erred in not appreciating the conspectus of the conspiracy in its entirety. Such piecemeal appreciation of evidence, rather than a conjoint reading of the case, has led to the passing of the Impugned Order, which needs to be set aside," it was contended.

Hearing today

The SG today argued that the discharge order was more like an acquittal order though no trial was held.

"This is an order of acquittal without trial. It is as bad as that. It may sound like an overstatement, but it is an understatement," the SG said.

He said that the evidence adduced by the investigating agency was "meticulous".

"At least with my limited experience in this field, I have not come across such meticulous evidence collected by an investigation agency," he argued.

He said that the judgment turns the criminal law on its head since approver statements don't need corroboration till the stage of trial.

"This [the judgement] is turning criminal law on its head. Approver statements do not need corroboration till the stage of trial. They [approvers] can be cross-examined (during trial). Approver has not been placed before the court in the witness box, not examined, not cross-examined. His approvership is before the magistrate, and it is nobody's case that he became an approver under threat or coercion," the SG submitted.

He said that one of the findings by the trial court was that Manish Sisodia handled the bribe.

"So, now we have to show that the person personally handled the cash, like in the past when an officer was caught red-handed with cash?" he asked.

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