Transfer excise policy case to impartial bench, Kejriwal urges Delhi HC CJ

On February 27, a trial court had discharged all 23 accused in the CBI’s case, including Kejriwal and Sisodia. After the CBI challenged the order, the HC on March 9 stayed the trial court’s observations recommending departmental action against the Investigating Officer (IO). The order was passed ex parte after no one appeared on behalf of the accused.

In her order, Justice Sharma said that the stay was necessitated by  “certain factual discrepancies” in the trial court’s order. The HC said that some of the trial court’s observations regarding statements of witnesses and approvers, made at the stage of charge itself, prima facie appeared to be “erroneous”.

Justice Sharma also requested that the trial court’s proceedings in the case of the Directorate of Enforcement (ED), which is based on the CBI’s offence, should be deferred.

In their representation to Chief Justice D K Upadhyaya, the AAP leaders have said that Justice Sharma’s order “does not disclose any reasons as to what specific perversity warranted such ex parte restraint”.

“This assumes significance because it is settled that interim interference with an order of discharge is an extraordinary course, to be exercised only in the rarest of circumstances and upon clear grounds of illegality or perversity,” the AAP leaders have said.

With respect to the deferment of the trial in the ED case, the leaders have submitted, “That the grant of such wide and consequential relief — without the same being pleaded, and in a proceeding where the ED is not a party — at the threshold stage and without hearing the discharged accused, materially fortifies the applicant’s reasonable apprehension that the present revision may not be approached with the requisite degree of judicial detachment, and that the matter may not receive a hearing that is manifestly impartial, as required by settled principles governing apparent bias.”

Justice Sharma has “not even once” in the past given “relief to any accused person (in the excise policy case) and repeatedly dismissed the matters while also commenting on merits”, the representation has said. It has cited five examples, including Justice Sharma’s refusal to grant bail to AAP leader Sanjay Singh in the ED case and Sisodia in both the ED and CBI cases, upholding Kejriwal’s arrest in the ED case, and recording a prima facie view of conspiracy against former Lok Sabha MP K Kavitha based on approver statements.

The representation has noted that the Chief Justice, as the master of the roster, “is vested with the power to constitute benches and allocate matters,” and sought the transfer of the matter to any other Bench “as deemed fit, in the interest of justice and to maintain the confidence of litigants and the public in the fairness of the process”.

The judicial process allows an accused who apprehends bias to approach the High Court with a transfer petition, which is the formal legal remedy available in such cases.