‘You can’t pick and choose any accused,’ Top 7 things Supreme Court said in BRS leader K Kavitha bail hearing today

The Supreme Court on August 27 granted bail to Bharat Rashtra Samithi (BRS) leader K Kavitha in the money laundering and corruption cases related to now-scrapped Delhi excise policy case.

The top court pulled up the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) over the nature of the probe being conducted in the case, legal news agency LiveLaw reported.

The SC bench comprising Justices BR Gavai and KV Viswanathan, during the course of hearing, questioned the fairness of the two investigating agencies – CBI and ED – and criticised their selective approach in treating some accused as approvers, the LiveLaw report said.

The SC allowed the release of Kavitha, the BRS MLC, on bail in both the cases on furnishing bonds for ₹10 lakhs each. The Court further directed the deposit of passport and that she should not attempt to influence the witnesses, according to NDTV report

Kavitha is the third major political leader to be released on bail in the Delhi Excise Policy case . Earlier, Aam Aadmi Party (AAP) leaders Sanjay Singh and Manish Sisodia were granted bail by the top court. Delhi Chief Minister Arvind Kejriwal is still in jail in the case.

The ED arrested Kavitha on the evening of March 15 . The CBI arrested her while she was in judicial custody in the ED case.

Here is a point-wise observation of the Supreme Court bench:

1- Prosecution has to be fair. A person who incriminates himself has been made a witness. Tomorrow, you pick up anyone as you please? You cannot pick and choose any accused. What is this fairness? Very fair and reasonable discretion, Justice Gavai observed during the hearing.

2- The bench noted that the investigation is complete and chargesheet complaint has been filed in both the CBI and ED cases. Hence, the custodial interrogation of the petitioner, who has been behind the bars for over five months, is no longer necessary, the observed.

3 - The SC bench reiterated its observation in the Manish Sisodia judgment (granting him bail) that the undertrial custody should not be turned into a punishment.

4- The trials in both cases are unlikely to be completed soon since there are about 493 witnesses to be examined and the documentary evidence runs to nearly 50,000 pages.

5-This Court puts a caution that the Courts while deciding such matters should exercise discretion judicially. The Court does not say that merely because a woman is well-education or sophisticated or a Member of Parliament or Member of the Legislative Council is not entitled to the benefit of proviso to Section 45 of the PMLA Act. We find that the learned single bench totally misdirected itself.," the Court observed in the order.

6- The SC bench noted that the contradiction in the Delhi High Court's reasoning to deny the benefit of Section 46 proviso to Kavitha. On one hand, the High Court had noted that Kavitha was a well-educated woman who had made significant contributions through her social work. On this ground, the High Court had concluded that she was not a vulnerable person and had refused to grant her the benefit available to women under the proviso of Section 45 of the PMLA, the Bar and Bench report said.

The learned single-judge while denying relief under Section 45 comes to a heartening conclusion that appellant is highly educated and has made significant contributions and (engaged in) social work. (High) Court while recording her accomplishments said it cannot lose sight of serious allegations and proceeded to observe that present appellant cannot be a vulnerable woman," the Supreme Court noted, according to Bar and Bench.

7-Purely from a legal point, what is the evidentiary value of co-accused implicating the appellant? How incriminatory can it be? You cannot start with this. You have to see for lending assurance after marshalling other evidence. We are ignoring the retraction and going by the unretracted statement, just from a legal perspective, the Court said, according to Bar and Bench.

(With inputs from LiveLaw and Bar and Bench)