While arguing her bail plea in the Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) probes into the Delhi excise policy case, Bharat Rashtra Samithi (BRS) legislator K Kavitha told the Delhi High Court on Friday that even though women do not have an automatic right of bail under the law, they do have a “better right of consideration” for bail.
Kavitha has moved bail pleas before the high court in probes by both the ED and the CBI into the now-scrapped excise policy. She has also moved a plea challenging her arrest by the CBI and the trial court’s subsequent order remanding her to the agency’s custody. Apart from challenging the entire proceedings leading to her arrest, she has also challenged the trial court’s order allowing the CBI to interrogate her while she was in judicial custody.
Appearing for Kavitha, senior advocate Vikram Chaudhary submitted before a single-judge bench of Justice Swarana Kanta Sharma, that out of about 50 accused in the entire case, his client is the “only woman”.
“Under the statutory law of this country, the procedure which is prescribed is that a woman in Section 437 CrPC has been given a different pedestal. I am not saying that it is an automatic right of bail; but a better right of consideration of bail. In so far as Prevention of Money Laundering Act (PMLA) is considered, in the Act, a special favour has been extended to me in the proviso to Section 45. That the court can befittingly lift the twin conditions with respect to a woman for grant of bail. Of course, I have to qualify the triple test. But I definitely have an edge over all other accused. Keeping this in mind, consider my matter in a different perspective,” Chaudhary submitted.
The “triple test” requires the accused to not be a flight risk, likely to tamper with evidence, or likely to influence witnesses. Section 45 of the PMLA provides for bail on money laundering charges. The proviso to the section, however, states that “a person, who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail if the Special Court so directs”. A similar proviso is mentioned in Section 437 CrPC which pertains to bail in non-bailable offences.
He further submitted that the ED had in March 2023 sent a notice to Kavitha to appear before them, stating that the agency has arrested a person who was in custody for seven days and he needs to be confronted with her.
“ED says I have arrested a person who is in ED custody for seven days and we need to confront him with you. I (Kavitha) say come to Hyderabad. They (ED) say sorry you come here because we can’t bring him to Hyderabad. I understood it as a genuine request of ED. As a law abiding citizen, I responded to them in an hour by email on the same day. I said that please defer the examination by one day and I said that I may be examined through video conferencing. They refused to entertain my request,” Chaudhary said.
He submitted that when his client appeared before the ED, no such confrontation took place.
Meanwhile, the ED, in its response to Kavitha’s bail plea, has alleged that co-accused Hyderabad businessman Arun Ramchandran Pillai had given a statement on November 11, 2022, which was sought to be retracted on a “fantastic ground of ‘coercion’ after 118 days (03 months, 28 days)” by filing an application in March 2023. It has been alleged that Kavitha has influenced the co-accused in the case to withdraw their statements given under Section 50 of the PMLA.
“It is quite bizarre that it took 118 days to realise that he was coerced or was there some intervening event which led to his retraction? It is apparent that the applicant (Kavitha) herein wields considerable influence insofar as the 1st summons issued to her was on 07.03.2023 for her personal appearance on 09.03.2023, which clearly prompted Pillai to file an application for retraction on the same day i.e. 09.03.2023,” the reply states.
The agency has further said that while Pillai was arrested on March 6, 2023 and produced before the special court on March 7, 2023, he never mentioned or raised any concern that he was coerced. It said that in the retraction application filed on March 9, 2023, there is not a single allegation of any kind of violence or threat of violence or use of physical force and there is only a “vague allegation” of “coercion” without any material particulars whatsoever.
The ED has said that it is false to suggest that Kavitha’s arrest took place after sunset and the same can be seen by the panchnama of the search which was endorsed by her. It has further said that the provisions on arrest under the PMLA do not carve out any special exemption in favour of a woman at the time of arrest and so “no special treatment is to be given to a woman as long as a lady officer is present during the arrest”.
The agency has further said that a person can only be released under Section 45 of the PMLA if the twin conditions are satisfied. One of the conditions required is “reasonable grounds” for the court to believe that the accused is not guilty of money laundering and that she is not likely to commit any offence while on bail. The ED has said that Kavitha’s argument that twin conditions may not be applicable due to the proviso to Section 45 is to be rejected in view of her “position in the society”, her “role” and the nature of the evidence. It has further said that the special court also rejected this argument –application of proviso to Section 45 of the PMLA as Kavitha is a woman – in its April 8 order.
“The applicant is a highly influential individual coupled with the fact that is accused of commission of a grave economic offence and has the potential to tamper with the evidences and influence the witnesses as has been done by her in (the) past also. That further investigation is going on to trace proceeds of crime and the role of various persons. Huge amount of proceeds of crime have been found to be laundered and investigation to trace the proceeds of crime is ongoing. There exists a reasonable apprehension of crucial evidence being destroyed if the applicant is enlarged on bail,” the reply states.
It said that even otherwise, the likelihood of her evading the process of law if enlarged on bail cannot be ruled out. While personal liberty is of paramount importance, the same is not absolute but subject to reasonable restrictions, including the interest of the state and public, the agency has said.
The Telangana Legislative Council member, who has been under the scanner of the central investigating agencies for almost two years now, was arrested by the ED from Hyderabad on March 15. Following her arrest in the ED case, she was arrested by the CBI in the corruption case on April 11. Kavitha is currently in judicial custody in both matters.
The CBI has alleged that Kavitha met co-accused Magunta Srinivasulu Reddy in March 2021 and told him that Delhi Chief Minister Arvind Kejriwal had allegedly spoken to her and demanded Rs 100 crore. She had allegedly also asked Reddy to arrange Rs 50 crore.
In its prosecution complaints (equivalent to chargesheets), the ED has claimed that members of the so-called ‘South Group’ that Kavitha was associated with had paid bribes to exploit the loopholes in the excise policy that would secure their uninhibited access to various wholesale businesses and retail zones in violation of the rules.
The matter is next listed on May 27.
Verdict on Hyderabad businessman Arun Ramchandran Pillai’s plea reserved
Hearing a plea moved by Bharat Rashtra Samithi (BRS) legislator K Kavitha’s co-accused Hyderabad businessman Arun Ramchandran Pillai in the CBI probe related to the Delhi excise policy, the agency said that “with regard to K Kavitha a chargesheet is about to be filed”. The agency said that a fresh chargesheet is likely to be filed against Kavitha in 10 days.
Pillai had moved the high court seeking setting aside of a trial court order which had dismissed his plea against commencement of arguments on charge till the conclusion of an investigation by the CBI.
Pillai’s counsel argued that “arguments on charge cannot be heard by the trial court since there is no compliance of Section 207-208 CrPC” and so the trial court could not have heard the arguments on charge. He further said that the investigation with respect to some other co-accused was pending and chargesheets have not been filed. Till the chargesheets are filed and those are also provided to his client, it will cause prejudice to the petitioner if arguments on charge take place, the counsel said.
Section 207 CrPC deals with supplying copies of police report statements (recorded by the police), other relevant documents, or extracts from the documents to the accused persons.
“Petitioner (Pillai) and K Kavitha who is presently in custody are in the same thread. A conspiracy regarding them has been alleged. If today a charge is framed against Arun Pillai then what will happen to K Kavitha’s chargesheet when it comes, because both are in the same conspiracy angle? Till investigation is going on, arguments on charge may not be heard. Kavitha is completing her arrest in the CBI case (60 days about to get over). That chargesheet if they file it they will have to supply it to us also,” Pillai’s counsel said.
The CBI said that the material before the trial court against Pillai is already before it and the trial court can decide whether a charge is made out against Pillai or not based on this material. It said that the agency cannot go beyond this material at this stage.
After hearing the arguments from both sides, the high court reserved its verdict on Pillai’s petition.
BRS leader K Kavitha. (Express file photo by Gajendra Yadav) 
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