Excise Policy Case: Why Delhi court slammed CBI over approver statements while discharging Arvind Kejriwal and others

The counsel appearing on behalf of the accused persons highlighted the manner in which the statement of the approver, Dinesh Arora, came to be recorded repeatedly under Section 161 (examination of witnesses by police) of CrPC, on at least four occasions, after his statement under Section 164 (Recording of confessions and statements) of CrPC, on the basis of which pardon had been granted to him.

The court observed that permitting such a practice to go unscrutinised would risk setting an unhealthy precedent.

“If such a practice is permitted to pass without judicial scrutiny, it carries the grave potential of setting an unhealthy precedent, effectively normalising a method whereby an investigating agency, after securing pardon on the professed premise of a “full and true disclosure”, continues to repeatedly re-record 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 order dated February 27 read.

Court’s observations

• The investigating agency has offered no explanation whatsoever as to why it found it necessary to record the statement of the approver under Section 161 repeatedly, and that too over a span of nearly one and a half years, extending till the filing of the last supplementary charge-sheet.
• The record is conspicuously silent on any exceptional circumstance warranting such a course.
• This unexplained conduct reflects a disturbing departure from the settled legal principles governing the grant of pardon.
• The law does not contemplate a situation where an approver, having obtained the extraordinary indulgence of pardon, is thereafter subjected to repeated statement-recording under Section 161 of CrPC so as to incrementally refine, expand, or reshape the prosecution case.
• Such an approach strikes at the core of the concept of pardon and undermines the sanctity of the judicial satisfaction recorded at the stage of its grant.
• It gives rise to a legitimate apprehension that the approver’s subsequent statements are not the product of spontaneous disclosure, but of a prolonged and iterative process calibrated to suit the evolving requirements of the prosecution.

‘Narrative construction rather than truth discovery’

• It is a settled principle of criminal jurisprudence that the statement of an approver is inherently suspect and is to be received with great caution. Yet, the approach adopted by the investigating agency in the present case reflects a marked departure from this well-established rule.
• The repeated examination of the approver over a period of one year, ostensibly to elicit further statements, itself demonstrates that what was projected as a complete disclosure gradually devolved into a series of incomplete and evolving versions.
• This aspect has been noted only to underscore the manner in which the investigation has proceeded in the present case, and the weight that has been placed on the shifting statements of the approver.
• The manner in which the investigating agency has proceeded, by repeatedly recording the statements of the approver without justification and over a prolonged duration, reflects an exercise of discretion that cannot be characterised as fair or reasonable.
• If left unchecked, such conduct risks converting the exceptional mechanism of pardon into an instrument for narrative construction rather than truth discovery, thereby causing serious prejudice to the accused and eroding confidence in the criminal justice process.

‘Fairness a constitutional mandate’

• Ignoring or glossing over such infirmities would itself result in a miscarriage of justice. The guarantee of life and personal liberty under Article 21 of the Constitution of India is not confined to protection against unlawful detention alone, but necessarily encompasses the right to a fair and just investigation.
• Fairness in investigation is a constitutional mandate that restrains the exercise of state power and operates as a safeguard against arbitrary or capricious prosecutorial conduct.
• 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.
• Where investigative discretion is exercised in a manner that erodes the presumption of innocence or dilutes the sanctity of a judicially granted pardon, the process itself assumes a punitive character, impermissible in a constitutional democracy governed by the rule of law.