[Satyendar Jain bail plea] ED seeks transfer of case alleging bias on part of Judge; Jain says 'purely malafide'

A Delhi court on Thursday reserved its verdict on a plea by the Enforcement Directorate (ED) seeking transfer of bail plea of Aam Aadmi Party (AAP) minister Satyendar Jain from the judge currently hearing the case, to some other judge..The matter was heard by Rouse Avenue court Judge Vinay Kumar Gupta who reserved his verdict after elaborate arguments by senior counsel representing the two sides..Additional Solicitor General SV Raju, Special Prosecutors Zoheb Hossain and N K Matta, represented ED whereas Senior Advocates Kapil Sibal appeared for Jain. The court at the beginning of the proceedings enquired if both parties were agreeable, it would transfer the case to another court. Sibal, and other Senior Advocates N Hariharan, Rahul Mehra, however, responded by saying they wanted to contest the ED application and argue. ."We have spent hours and hours. This is forum shopping," said Hariharan. Raju objected to the remark.Sibal then said, "Dignity of the judge is more important than anything."The ASG subsequently began the arguments pointing out three grounds for seeking the transfer and argued that Jain initially sought medical bail and got admitted to Lok Nayak hospital under the Delhi government. “We objected saying it was under his control and he was minister. And medical report will be biased, tainted. We asked for transfer. We also produced page of website where his photo was printed. Despite that she (special judge) calls for a report. Doesn’t record out objections,” submitted Raju. He added, "He faked his illnesses. For getting admitted in a hospital of his choice. He was heading the hospital. The photo on the hospital's website showed him to be the patron of the hospital."Despite being pointed out, Raju argued, the judge did not record the investigation agency's apprehension.According to the ED, Jain was in a position to get a fudged medical report and even influence jail authorities as he held the jail ministry portfolio..“Jail is managed by money power or political power,” Raju said.Raju insisted that ED’s apprehension was that the medical report would be fudged because he was the minister and despite this, the special judge had called for a report. “Our case was he is feigning sickness. He is going to manage,” he added.Raju shared that on one occasion when he appeared in the case, and Jain was appearing through video-conferencing, the latter was “was just lying on the bed” and there “was no oxygen mask, cannula". “The learned judge glosses over the fact. When we say he was jail minister, then aslo the court doesn't say anything. The jail superintendent was under him…Look at the conduct of the judge. I need not use any adjectives. But I have demonstrated the conduct of the judge,” he submitted.Further, it was the ED’s contention that the judge did not consider the fact that being the health minister, there would be an “element of bias" as to how he will be examined at the hospital..“He was minister of jail. He had huge influence. The judge doesn't consider it….In my career of 42 years on criminal side, I have never come across any report which says an accused shouldn't be produced because of jerky movement,” submitted the ASG. It was also stated that being the jail minister, Jain had got a certificate asking him to avoid jerky movements. “Judge considers it, endorses it. Demonstrates bias in favour of the accused. Judge knows there's something fishy in the report of Lok Nayak. Delhi high court had said don't consider the report…Then comes another report. Same report… Doctors are sometimes influenced by money, power or positions,” said Raju. Raju, subsequently, submitted, “What I'm trying to say is that the judge should have gone into the veracity of the certificate. It shows bias towards accused.”.Sibal, on the other hand, said that the issue arose with respect to the regular bail application filed on August 17.“I'm assuming that they had reasonable, genuine apprehension that the judge was biased. So any party would move an application that you are biased before. August 17 bail is filed, argued on several days. He files a counter on 20th. He doesn't raise the question before. It he had apprehension that judge was biased, he would have said you can't hear this. Not a whisper. Matter is argued August 20, 23, 27, 30, September,1,8. Not a whisper about bias. Then we closed the rejoinder on September 13,” he contended. Sibal pointed out once arguments were closed, the ED’s counsel wanted to clarify certain issues. “On September 15th, my friend orally told the judge 'don't hear we are seeking transfer'. Before 15th, he didn't have any apprehension. What happened. Between September September13 and15, no case of bias?”Sibal then sought to explain what really transpired according to him..“Orally you are attributing something to the judge. Is the judge not supposed to question. Is he supposed to be a silent spectator? Is he supposed to agree with everything they say… Till the 13th September there was no bias. What is the bias, the judge may grant medical bail not regular bail…Because judge allowed him to be shifted. That happened in July,” he argued. Sibal called the ED’s application seeking transfer of bail proceedings a “purely malafide” and said the same was meant to “derail trial”, “prolong my custody”, “ensure whims and fancies”, and “send message to judiciary that if you disagree to us this is what will happen”. The senior counsel also argued that Jain was factually not a minister.“There is a notification of President that he is not a minister. He is not holding any department. He is not a minister,” he said.Sibal also questioned whether he can attribute bias if the probe agency was under the Central government.He further asked if the hospital being under administrative control of Delhi government was a ground to seek transfer of bail proceedings. “Delhi government funds infrastructure of these courts. How can we say all of this?” Sibal pointed out. “If a union minister goes to AIIMS (All India Institute of Medical Sciences) can anybody say… I have been a union minister, Mr Ghulam Nabi Azad has been a health minister….If we go to AIIMS will we say that they will give fudged reports. Can we say all this? Are we castigating the medical community,” Sibal demanded..He asked, “Can I not say that other hospitals are under union government, there will be bias?” Sibal then remarked, “Where are we going in this country? In other words we don't trust our doctors, judges. Remember this. This is very important. When he was arrested, the same court remanded him to 14 days custody. Then an application was filed for bail, the bail was dismissed by a 81 page order by this judge. No bias. 81 page order. No bias.” According to Sibal, the special judge couldn’t have assumed as a matter of law that the report will be biased. “He (ASG) is arguing that the judge knew. The judge can't assume till such time. The report comes. It is challenged. Court then says let's have another opinion,” said the senior counsel.The plea, was, therefore, termed “frivolous and malafide” and the district judge was urged to “protect the dignity of the judge”. .The CBI had initially registered a case under Sections 13(2) (criminal misconduct by public servant) read with 13(e) (disproportionate assets) of the Prevention of Corruption Act, 1988 against Jain.The case was registered on the allegation that Jain had acquired movable properties in the name of various persons between 2015 and 2017 (check period) which he could not satisfactorily account for.On April 5 this year, the ED, on the basis of its investigation into the money laundering aspect, provisionally attached immovable properties worth ₹4.81 crore belonging to M/s Akinchan Developers Pvt Ltd, M/s Indo Metal Impex Pvt Ltd, M/s Paryas Infosolutions Pvt Ltd, M/s Manglayatan Projects Pvt Ltd, M/s JJ Ideal Estate Pvt Ltd, and other persons under the PMLA.