‘Premeditated, choreographed exercise’: Court throws out CBI case, discharges Kejriwal, Sisodia and 21 others

While the AAP and its leaders hailed the ruling and called it a vindication of their stand, the CBI moved the Delhi High Court, challenging the trial court verdict.

The Judge, in several instances, slammed the CBI over its conduct, the nature of its investigation, and its presentation of evidence. He described the investigation as a “pre-meditated and choreographed exercise, wherein roles appear to have been retrospectively assigned to suit a preconceived narrative”.

The court raised questions on the course of the investigation, calling it “seemingly driven by the question of who all can be brought within its fold” and “an ever-expanding sweep” to eventually arrest national leaders of the AAP.

And in a rare instance, it also recommended “appropriate departmental proceedings against the erring investigating officer” for “framing A-1 as an accused in the absence of any material against him, so that accountability is fixed and the institutional credibility of the investigative machinery is preserved” – A-1 or the first accused in the case was Kuldeep Singh, a former excise department official.

The court said the case against Singh was “solely on “inadmissible hearsay attributed to an approver.” It also criticised the executive (the Lieutenant Governor of Delhi) for granting prosecution sanction.

“…the Court finds it difficult to comprehend how, in the admitted absence of incriminating material, these public servants were arrayed as accused, and how sanction for their prosecution came to be accorded despite the lack of any admissible material against A-1 and A-2,” it said.

It noted that the CBI’s case against the accused rested predominantly on statements of approvers and documents which were inadmissible in law.

“…this Court finds that the entire alleged chain of payments rests predominantly on so-called pauti entries of Angadia firms, documents which are inadmissible in law, and on (an) approver-like statement which remains uncorroborated on material particulars. These infirmities are not peripheral; they strike at the very root of the prosecution case and render it unsustainable even at the threshold stage,” the ruling stated.

The Judge said there was an attempt to “stitch together disparate fragments so as to create an impression of a vast and complex conspiracy, unsupported by legally admissible material”. He called the investigation “steered by a preconceived outcome rather than by objective evaluation of evidence”.

“The investigative trail begins with a campaign-related company, then moves through small vendors and intermediaries, thereafter to angadiyas who admittedly operate organised cash-transfer networks, followed by house owners, hotel operators, political volunteers, contesting candidates, state-level office-bearers, and ultimately the national leadership. This widening arc does not appear to be founded on fresh or independent incriminating material emerging at each stage, but rather on a preconceived assumption of the existence of ‘proceeds of crime’, coupled with an apparent attempt to demonstrate that no segment has been left untouched in the purported effort to trace such proceeds,” he said.

The corruption case arose out of a report submitted in July 2022 by Delhi Chief Secretary Naresh Kumar to Lt Governor Vinai Kumar Saxena, pointing to alleged procedural lapses in the formulation of the Delhi Excise Policy 2021-22. The report said “arbitrary and unilateral decisions” taken by Sisodia in his capacity as Excise Minister had resulted in “financial losses to the exchequer” estimated at more than Rs 580 crore. It alleged that “kickbacks… received by the AAP Delhi government and AAP leaders” from owners and operators of alcohol businesses for preferential treatment such as discounts and extensions in licence fee, waiver on penalties and relief due to disruptions caused by the Covid-19 pandemic, etc. were used to “influence” the Assembly elections in Punjab and Goa in early 2022.The policy came into force in November 2021, but was scrapped in July 2022.

Almost all top AAP leaders in Delhi were once behind bars in relation to the excise policy case, including Kejriwal and Sisodia.

The CBI had claimed that Rs 100 crore in “advance kickbacks” was paid by a Hyderabad-based “South Group” to AAP leaders. This money, the agency alleged, was used by the party to fund the election campaigns in Goa and Punjab.

The two main procedural lapses alleged by the CBI were the insertion of a wholesale margin of 12 per cent to allegedly benefit the “South Group” and the enhancement of the turnover eligibility criteria for grant of L-1 licence to Rs 500 crore every year for five years to eliminate competition and favour the group.

The trial court criticised the use of the expression “South Group”, which the Judge said could be deemed offensive in certain circumstances.

“What emerges, therefore, is not a transition from a fixed 5% to 12%, but a transition from no cap (with a 5% minimum) to a standardised 12%. The first draft did not prescribe a 5% ceiling; it prescribed only a floor. The second draft replaced a flexible regime with a uniform rate,” the Judge said on the first allegation.

He also pointed out various “lapses” such as making some persons who should have been accused in the case as prosecution witnesses and over-reliance on an approver’s statement to implicate the accused.

“Individuals who openly acknowledge operating systematic cash-movement syndicates are not proceeded against as accused, but are instead converted into prosecution witnesses. Their largely uncorroborated and self-serving statements are then employed to implicate persons placed progressively higher in the alleged chain,” he said.

“An investigation that departs from transparency, consistency, and procedural discipline, particularly by repeatedly rerecording statements of an approver after the grant of pardon without any disclosed justification, does not merely affect evidentiary appreciation, but strikes at the heart of these constitutional and international guarantees,” he said, stating that the agency resorted to “repeatedly re-recording” statements of the approver over an extended period, “ostensibly to fill gaps, improve the prosecution narrative, implicate additional accused, or artificially weave missing links in the chain of circumstances”.

“The record reveals that the approver, who has been examined on multiple occasions over an extended period of more than 1 year, has come forth with this new allegation only in the course of his later statements,” he said.

The trial court also observed that the CBI had strayed into the domain of the Election Commission of India by scrutinising election campaign logistics.

“…the investigation strays into the constitutionally demarcated domain of election expenditure. By scrutinising campaign logistics, accommodation arrangements, political volunteers, and alleged cash payments, the investigating agency, in substance, undertakes a self-conducted audit of election spending. This field falls within the exclusive constitutional jurisdiction of the Election Commission of India,” it said.