Delhi Chief Minister Arvind Kejriwal on Thursday vehemently opposed in the Supreme Court the Central Bureau of Investigation's argument that he should have approached the trial court first for bail in the corruption case linked to the alleged excise policy scam, asserting it would not be fair to send the matter back to the trial court at this stage.
After protracted arguments by the counsel for the beleaguered Aam Aadmi Party leader and the central probe agency, the court reserved its judgement on separate pleas filed by Kejriwal for bail and against his arrest by the Central Bureau of Investigation.
Questioning the maintainability of Kejriwal's pleas, Additional Solicitor General S V Raju, appearing for the central agency, submitted that even in the money laundering case in which he had challenged his arrest by the Enforcement Directorate, he was sent back by the apex court to the trial court.
"He has approached Delhi High Court directly without going to sessions court. Under Section 439 of the Code of Criminal Procedure (CrPC), both have concurrent jurisdiction. My preliminary objection is he must first go to trial court.
"He seems to be an extraordinary person who requires different approach. When all other Aam Aaadmis (common people) go to the trial court for bail, there cannot be a special treatment for anyone," Raju told a a bench of Justices Surya Kant and Ujjal Bhuyan.
Raju said if the Supreme Court grants bail to Kejriwal, it will demoralise the Delhi High Court, while had upheld his arrest.
"Don't say that. Whatever order we pass, we will ensure nothing like that happens," the bench assured Raju.
Countering Raju's submissions, senior advocate Abhishek Singhvi, appearing for the chief minister, said the questions arising for consideration in the present bail case have already been extensively dealt with by the trial court during remand.
"It's not a fair argument for CBI to raise at this stage. You cannot consider sending me back there. Arguments were looked into during remand and affirmed against me. It is not fair to raise that argument now. At this stage, there is huge delay involved since it has been heard on merits. I am giving the right of appeal. CBI should be the last one to complain," Singhvi said.
Pointing out alleged legal infirmities in the case, Singhvi said no notice was served to Kejriwal by the CBI before his arrest and an ex-parte arrest order was passed by the trial court.
Caling it as a mere "technicality", the ASG said the CBI did not issue a notice to Kejriwal under section Section 41A of the Code of Criminal Procedure as he was already in judicial custody.
Singhvi countered the submission and said, "Matters of liberty cannot be termed technicality. What I am referring to are procedural safeguards."
Seeking bail for the embattled AAP national convener, Singhvi said every possible co-accused in the case has been released on bail, including Manish Sisodia, K Kavitha and Vijay Nayar.
Raju replied that the co-accused who got bail from the apex court had approached the trial court first which Kejriwal did not do.
Sisodia, a former deputy chief minister who held the excise portfolio when the alleged scam took place, was granted bail on August 9 by the top court which also extended the same relief to Kavitha on August 27.
The law officer informed the top court that the charge sheet in the case against Kejriwal was filed on July 29.
Raju said Kejriwal has not annexed a copy of the charge sheet to his application and his bail plea should be dismissed on grounds of concealment and suppression of facts.
During the hearing, the bench made an oral observation that if the high court took a tentative view that Kejriwal should have approached trial court first, then it should have opined so when notice was issued in the first place.
"Ideally, the high court should have been decisive on this question. The high court should have passed that order on that very day when notice was issued," the bench said.
Raju replied that high courts are heavily burdened and that the Delhi high court heard the matter on Muharram holiday.
Contending that arrest is a part of an investigation, Raju opposed bail for Kejriwal and said he is a very influential person wo may tamper with evidence in the case.
At the outset, Singhvi told the top court that the CBI did not arrest him for nearly two years in the alleged excise policy scam and an "insurance arrest" was made on June 26 after he got bail in the "harsher" money laundering case filed by the ED.
Singhvi submitted that Kejriwal is a constitutional functionary and not a flight risk.
He said Kejriwal was also not named in the CBI FIR.
The senior lawyer pointed out that the top court, while granting him interim bail in the money laundering case, had said the chief minister was not a threat to society.
“What started in August 2023 has led to arrest in March this year in the money laundering case,” he said, adding the top court and the trial court have already granted him bail.
The excise policy was scrapped in 2022 after the Delhi lieutenant governor ordered a CBI investigation into alleged irregularities and corruption involving its formulation and execution.
According to the CBI and the ED, irregularities were committed while modifying the excise policy and undue favours extended to licence holders.
