ED’s submission that “investigation is an art and sometimes one accused is given lollypop of bail and pardon and induced with some assurance to make them tell the story behind the offence,” was questioned by special judge Niyay Bindu.“The court has to take a pause to consider this argument…that investigation is an art, because if it is so, then any person can be implicated and kept behind bars by artistically procuring the material against him after artistically avoiding/withdrawing exculpatory material from the record. This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias.”
The judge observed that the complete truth cannot be revealed through people who have backtracked from their previous statements. She was referring to some witnesses in the case. She said the complete truth shall be established on the basis of incriminating material available on record which the investigating agency is “under an obligation to procure in a legal manner”.
The court observed that ED had failed to give any direct evidence linking Kejriwal to proceeds of crime. However, it may be possible that some known persons to the CM were involved, she said.
The agency had failed to clarify how it reached the conclusion that an amount of Rs 1 crore attached from Vinod Chauhan was part of the proceeds of crime, said the judge, adding that it was also not clarifying as how the alleged amount of Rs 40 crore traced during the investigation was part of the proceeds of crime.
Regarding that amount, the judge said the IO had informed the court that out of an alleged amount of Rs 100 crore, about Rs 40 crore had been traced but ED had failed to clarify how much time it needed for tracing the rest of the amount. Which, she said, raised the question whether Kejriwal is supposed to remain behind bars without proper evidence against him till they recover the entire amount.
“It seems that ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever… The investigation agency should be prompt and fair so that it can be perceived that the principles of natural justice are also being followed by the agency,” the court noted.
The court observed that ED was silent on certain issues raised by Kejriwal, including his submission that he had not been named either in the CBI case or in the ECIR (ED’s enforcement case information report).
Taking note of the ED’s claim regarding the fact mentioned in the chargesheet i.e Vijay Nair stayed at the house of Kailash Gehlot and he was having close relations with Kejriwal; that his stay at a seven-star hotel at Goa was sponsored by co-accused Chanpreet Singh which shows the close proximity of both of them; and that an amount of Rs 1 crore was attached from the residence of a co-accused who is an associate of Kejriwal, the court said “ED has not shown anything on record (to prove) that Vijay Nair was acting upon the directions of the applicant.”
Even if Vinod Chauhan had close relations with Chanpreet Singh, how would that help ED establish Kejriwal’s guilt, even if he was acquainted with both co-accused, the judge wondered.
The judge observed that higher courts have been urging trial courts to consider the constitutional rights of undertrials. “There have been thousands of cases where the accused have undergone a long trial and agony resulting from the same till they have been acquitted by the court for being innocent. Unfortunately, the mental and physical agony of such a person cannot be compensated in any manner whatsoever,” she said.
Referring to SC’s interim bail order of May 10, 2024, the court recalled that the bench had said that though serious accusations have been made, Kejriwal has not been convicted and he did not have any criminal antecedents. He was not a threat to society either, it had observed, pointing out that the investigation in the case had remained pending since August 2022. “More importantly, legality and validity of the arrest itself is under challenge before this court and we are yet to finally pronounce on the same,” SC had said.