Justice Swarana Kanta Sharma reserved the order on the applications filed by various accused persons including former CM Arvind Kejriwal who have sought recusal of the judge. Delhi High Court Hearing Highlights: The Delhi High Court Monday reserved order on the plea moved by former Delhi chief minister Arvind Kejriwal and other accused persons seeking the recusal of Justice Swarana Kanta Sharma from hearing the revision petition filed by the CBI against the discharge order passed in favour of Kejriwal and others in the excise policy case.
On Monday, while Kejriwal alleged bias, saying Justice Swarana Kanta Sharma had attended Adhivakta Parishad event linked to BJP, RSS, the CBI, represented by Solicitor General Tushar Mehta, defended the judge’s participation, submitting even sitting Supreme Court and other High Court judges had attended the event organised by the “bar association” and there was nothing wrong with it.
Kejriwal’s submissions: At the outset, Kejriwal submitted that the discharge order passed by the trial court after over 3 months of hearing was declared erroneous in five minutes of hearing by the high court. “I was really shocked, and I started doubts, serious apprehensions whether the court is biased and whether I will get justice here,” he said. Kejriwal further argued that the judge’s order, in five matters including Kejriwal and Manish Sisodia’s bail plea, almost amounted to passing judgment.
Arvind Kejriwal said the discharge order passed by the trial court after over 3 months of hearing was declared erroneous in five minutes of hearing by Justice Swarana Kanta Sharma.
What happened during the last hearing? In the last hearing, Kejriwal had expressed his intention to argue the recusal application personally. Solicitor General of India Tushar Mehta, appearing for the CBI, however, argued that Kejriwal must discharge his advocate if he wishes to argue personally. Mehta remarked that the forum was not for theatrics.
Recusal plea and CBI’s response: Seeking Justice Swarana Kanta Sharma’s recusal citing past instances of alleged bias, Kejriwal and five other accused persons have cited the judge’s “alleged likelihood of ideological association with ABAP”. The ABAP, a lawyers’ body, is considered to be an affiliate of RSS.
Opposing the recusal applications, the CBI, in its affidavit filed on April 7, said, “Attending a legal seminar can never be a ground for recusal when the topic of the seminar was not a political one therefore it does not demonstrate any ideological association”. It termed such “unscrupulous and sweeping” aspersions to attribute the judge’s bias, as contemptuous.
Court: Learnt a lot about recusal jurisprudence. In my life for the first time somebody has asked me to recuse. But I learnt a lot about it. I hope I can give a good judgment
Court rises, order reserved.
Court dictates order: Arguments concluded on behalf of respondents who sought recusal, arguments concluded on behalf of CBI
Rejoinder submissions concludes
Now Hegde begins his rejoinder on behalf of Sisodia
Farasat begins his rejoinder submissions
Court says it will reserve order on plea for recusal, rejects counsel's request to post the matter day after tomorrow for rejoinder submissions
SG Mehta: This (recusal plea) needs to be dismissed with costs, contempt action be initiated
SG Mehta: Would the court decide cases based on what public feels. Are they representative who have taken vote that this is what the public feels? may be few social media posts...for social media, you need a mobile, data and you need a lot of time....you can criticise Donald Trump also...
SG Mehta: I feel that I am apprehending bias is no argument. It should be so strong that court will have to record a finding that his apprehension of bias has some substance
SG Mehta: What is the threshold of a person's apprehension? An apprehensive man can apprehended anything...or apprehension can be a tactic
SG Mehta: There is one more reason why recusal should be rejected...Based on the same material in this case which was dealt with by your ladyship...other benches have also dealt with them and have arrived at the same conclusion
SG Mehta: Fear is something which the respondents are trying to instil that is my respectful submission
SG Mehta refers to a 2008 Supreme Court judgment
SG Mehta: There is a rule in Delhi High court that suppose a matter comes before a division bench which finds some other division bench judgment is in conflict with some SC judgment, they express the opinion. Rule 8 provides that in larger bench, the judges who express contrary view have to be on the bench.
SG Mehta: Honourable judges of Supreme Court, this court have attended event of Adhivakta Parishad which is a bar association...I don’t want to name or sensationalise
SG Mehta: Fanciful submission of your ladyship having attended functions of adhivakta parishad.....It is a bar association. There is nothing like ideologically inclined etc.....If any honorable judge is invited by a bar association, to speak on law, will the judge be to justify refusing?
SG Mehta: In order of 9 March the court was pleased to issue notice...not an order adverse to anyone.
SG Mehta: This application is not a bonafide application that is my respectful submission
SG Mehta: Only on the ground of long incarceration Mr Sisodia was released (by Supreme Court). There is no interference with the findings
SG Mehta refers to Kejriwal's petition
SG Mehta: We may succeed or lose, but we have to be fair to the court.
SG Mehta: There are two preconditions before this statutory power can be exercised- existence of material on record and the satisfaction which has to arrive at....
SG Mehta: There is a pattern, an ecosystem which is working but not only right of CBI to oppose, but the court to thwart any aspersions without reasons..
SG Mehta: Suppose every litigant making such allegations it might result into honourable judge's recusing....it might remain in the mind of judge that he has made an allegation and are being floating around in public
SG Mehta: The question is if the honourable judges start recusing will any judge in this country will be able to decide impartially, without fear or favor?
Mehta: The precedent it sets — based on surmises , conjecture and unreasonable apprehension and virtually maligning the bench, the litigant can choose the bench
Applicants conclude arguments.
SG Tushar Mehta begins arguments
SG Mehta: Very easy for court and prosecuting agency for the matter to go to any other bench
Now counsel for advocate Rajat appears for accused Rajesh Joshi..
Advocate Rajat for accused Rajesh Joshi: In a revision jurisdiction, having granted relief to ED and the IO who were not party, it is creating a very strong apprehension in the mind of the applicant.
Counsel: There is a damaging article
Court: Damaging for whom?
Court: File an affidavit.
SG Mehta: Now arguments are over, no more affidavits
Submissions conclude on behalf of counsel for Durgesh Pathak
Counsel: There is a common principle person has to be treated as innocent until proved...
Court: You are still discharged
Court records counsel’s submission that a lot of things are being said on social media which is affecting his mental health.
Counsel: There are a lot of articles on social media
Court: I am not responsible what social media is writing
SG Mehta: We should be confined to the pleadings
Counsel: CBI has shown over enthusiasm in my case
Counsel: This is a matter of personal liberty under article 21...if my discharge order is set aside I may have to go inside..i have to spend time in jail
Counsel: There is not a single allegation in my application against the judiciary. The only question of bias, in mind of applicant and general public.
Counsel appears for Durgesh Pathak
Senior advocate Shadan Farasat concludes submissions
Farasat: Recusal in a criminal matter stands on a more stronger or constitutionally sensitive position in the sense that the person's article 21 rights are implicated which in a civil matter may not happen
Farasat: There were two or three aspects of the 9 march order.....There is in that order the determination made in the order....Possibly it can lead to an apprehension that the view the court has taken earlier is flowing into that order and in these proceedings already
Farasat: The view that this court has taken at stage of bail is exact opposite of what the discharge court has taken
Farasat: For us counsels it is a matter...for the person it is his life. In this case the court has taken a view. Having taken that view, the question arises the persons who have suffered, is it possible to take a completely opposite view?
Farasat: Vijay Nair’s matter has not come before this court… The ladyship has not come before this court.....recusal is peculiar jurisdiction as legally trained minds for the first time are asked not to view the matter from our own lens.
Senior advocate Shadan Farasat to start arguments. He appears for Vijay Nair
Hedge concludes
Court: Pleasure hearing you
Court: Not all judgments need not be read
Hedge: The confidence that this court and our system evokes in public that we should not compromise. Cases come here and there.
Hedge: Though Mr Kejriwal has relied on some judgments... there are some paragraphs which is missed out...there are some backdrop which a lawyer can give
Hegde: We have a detailed chart that sets out what the trial court has said and what this court has said
Hegde: Public perception must be taken into account
Court: Recusal is going to happen only on two grounds number one is this..... Its your apprehension that i will not be able to do justice because have been hearing only them...
Court: I am only hearing a recusal application. This point has been strongly made that these 4 orders… The common thread in all application is this that I have given very strong observations and there I cannot decide dispassionately
Hegde seeks to continue later
Court: I will finish hearing this matter today...Since I have discharged all other matters. I will sit till late
Hegde: In this court, it is not as if there are no other judges to whom the matter can be sent if there were a recusal
Court: Any other point
Hegde: The point is also is that after an apprehension is raised and if your ladyship is satisfied that it is reasonable the question to be asked is- Is there a necessity to go ahead with the matter
Hegde: The point of view in these matters in not that of a judge it is that of a man fighting for his freedom
Court: I wrote that
Hegde: Your ladyship is not sitting in appeal and your ladyship will be sitting in revision. Normally the exercise is not that of a careful evaluation of facts which is required in appeal...
Court (records submissions): Learned senior counsel has drawn the attention of the bail application decide by the court he states that the court has given extensive findings which appear to be as if given in merit and declaring him guilty. He still states though this court may be able to decide this case without bias. The test is not of bias of the judge but the real focus.....is on the bias of the judge in the mind of a litigant
Hegde: Your ladyship has domain knowledge of the case......Sometimes its the judicial mind when it most certain of things it is that moment it requires the judicial mind to pause and take a relook, it is a reasonable apprehension
Senior advocate Sanjay Hegde's submissions continues with his submissions
Kejriwal seeks permission to leave courtroom
Court to Kejriwal: You argued well. You can be a lawyer.
Kejriwal thanks the court.
Kejriwal: Thank you. I am happy with what I am doing right now
Court: Some judgments gave me opportunity change the entire system of Tihar jail as to how they should treat the undertrials
Hegde: Bias per se encompasses various colours....I am using the word bias in a limited sense....not saying pecuniary, personal but on subject matter
Senior advocate Sanjay Hegde on behalf of Manish Sisodia now begins submissions
Hegde: To start on a lighter vein, sometimes a stint in jail makes a better lawyer.
Kejriwal concludes his submissions
Kejriwal: Home Minister Amit Shah has made a statement in a tv programme that whatever judgment comes from HC, kejriwal will have to go to SC
Court (records his submission): This court has attended some programs organised by adhivakta parishad which follows a particular ideology. His party is against that ideology. This has created a doubt whether he will get justice, since this court has attended the function.
Kejriwal: There’s a lawyer’s body Adhivakta Parishad. It is an ideological body of BJP and RSS. Your honour has attended their event 4 times… Their ideology, we are strongly against it.. this is a political case.
Kejriwal: This court has been endorsing everything and anything that the CBI is demanding
Kejriwal: Last week I appeared for the first time.. You said right to file reply is closed.
Kejriwal: 598 pages of trial court verdict but criminal revision petition was filed within 4 hours.
Kejriwal: There is a trend in passing orders. Whenever CBI, ED argue or seek a prayer, it is allowed by this court.
Court: So you are insinuating a political bias
Kejriwal: This court got MP/MLA roster since March… The speed at which this case and another case is going… there’s no other case going on at such speed. Both cases are prominent case where Centre is opposite party
Kejriwal: The language used by this court also indicated a bias
Kejriwal: Court mentioned in the order 'they had chosen not to appear'....I was hurt (reading this)
Kejriwal: Without hearing us, the order was partly stayed and the rest was declared erroneous
Kejriwal: The remarks were stayed on the plea of the CBI and not the IO. This creates a serious doubt against court.
Kejriwal: IO didn't even ask to stay
Kejriwal: Proceedings initiated against the IO were also stayed.
Kejriwal: It creates a serious doubt in the mind of the accused
Kejriwal: The consequence is that I am still an accused in the ED case. A message went out that keep ED proceedings pending...
Court records the submission.
Kejriwal refers to Vijay Madanlal Chaudhary judgment
Kejriwal: On oral prayer of SG Tushar Mehta, the order included it. principles of natural justice were violated. 2 days later ED filed a petition before you. ED didn’t even demand. But court was very generous to grant without a prayer, when they filed a plea, passed an order.
Kejriwal: Now i come to reason number 3
Kejriwal: Previous statements and observations are weighing heavily on the mind of this court.
Kejriwal: CBI ka poora case approver k upar hai
Kejriwal: Now I come to point number 2
Kejriwal: Trial court found Manish Sisodia not guilty.
Kejriwal: It was a very strong paragraph. There were only 3 hearings and it was concluded that Manish (Sisodia) was very corrupt....It was set aside by Supreme Court.
SG Mehta: It was not set aside by the Supreme Court
Court: He got bail
Kejriwal: There was a para… where ‘aisa laga humlogo ko corrupt nahi maha corrupt kaha gaya tha’ (It was felt that we were not only labelled corrupt but extremely corrupt.)
Kejriwal: Almost the judgment was pronounced in his case too....It was announced, pronounced that he was guilty of money laundering which was not required at that stage
Kejriwal refers to Manish Sisodia’s case
Court: I am hearing you on recusal....The trial court's order didn't come then...we will focus on your 10 points
Court: What is your apprehension?
Kejriwal: It concluded no crime took place, no corruption, no kickbacks, no demands of bribery
Kejriwal: Trial court's points are all contrary.
Kejriwal: These are earlier strong observations… they create create reasonable apprehensions.
Court records Kejriwal's submissions
Kejriwal: I was almost declared guilty, corrupt
Kejriwal refers to Justice Swarana Kanta Sharma’s judgment upholding his arrest in excise policy case.
Kejriwal reads the judgment
Kejriwal: It appears the court gave final judgment on the facts in just 2 hearings
Kejriwal: My matter related to illegal arrest. The limited matter court had to decide was whether the investigating officer had reasons to believe. The court was not required to give a final verdict
Kejriwal: This court has heard matter 5 times......this court gave observation almost amounting to judgments
Kejriwal refers to an order
Kejriwal: There exists in my mind the reasonable, grave apprehension that this court will not be....
Kejriwal: All I am asking for is the same parity as ED in Satyender Jain
Court records his submissions
Kejriwal: If a party has a reasonable doubt then it’s a matter of recusal...I have a small objection..My apprehension and recusal is between court and the party
Kejriwal: I wrote a letter on March 11 that the case maybe sent to some other bench...I got a reply that after a matter has been assigned… the decision lies with the judge whether they want recuse or not.....Basic principle of recusal is given in Ranjeet Thakur v Union of India
Kejriwal: The order that was passed after being heard for 3 months, this court passed an order in a few minutes
Kejriwal: March 9 this court heard the matter first time. On that only CBI was present. Without the presence of any other party, the court passed an ex parte order that the trial court order appears “erroneous” on legal issues
Kejriwal is arguing in Hindi
Kejriwal refers to trial court order where the court is saying the investigation advances in an “premeditated” manner
Kejriwal: I have been honorably discharged. I am not appearing as an accused
Court: Let’s concentrate on the recusal.
Court to Advocate Jain: Are you assisting him? Once a litigant is allowed. Let’s not do proxy. Let’s come to recusal directly.
Kejriwal: The trial court heard the matter for 3 months and read 40,000 pages of documents.
Kejriwal begins his arguments.
He thanks the court that the court has allowed him to argue in person
Kejriwal: I respect you on the personal level. I respect the judiciary, SG Tushar Mehta
Bench: Mr kejriwal you filed an application that you want to argue in person. I will allow this application. This court allows him to address arguments in person.
Hearing begins
Solicitor General Tushar Mehta and Additional Solicitor General SV Raju are present in Court. They are appearing for the CBI.
Justice Swarana Kanta Sharma will shortly hear the plea moved by ex-CM Arvind Kejriwal seeking her recusal from hearing the revision petition filed by the CBI against the discharge order passed in favour of Kejriwal and others in the excise policy case.
