“You Are Not A CM": High Court Denies Interim Bail To BJP Leader For Contesting Maharashtra Polls, Says Arvind Kejriwal Order Not Applicable

The Bombay High Court on Thursday while denying interim bail to a Bharatiya Janata Party (BJP) leader Digambar Agawane for contesting the upcoming Maharashtra Assembly Elections, said 'right to contest' was not a fundamental right and that the applicant can contest the ensuing polls from the jail itself.

Single-judge Justice Manish Pitale, while refusing to accept the contention of Agawane that the recent ruling of the Supreme Court in Arvind Kejriwal's case would squarely apply on his case, as he too seeks interim bail to contest the upcoming elections just like Kejriwal had sought interim bail for campaigning in the then held Lok Sabha Elections.

However, the judge noted that the Supreme Court specifically considered the fact that Kejriwal was not a threat to the society and that he had no antecedents. 

"I am not inclined on merits. If you want to contest you can fill in the nominations (through jail). No antecedents, no threat to society, probe is complete - these were the considerations of the Supreme Court. But in your cases these will not apply. Of course you aren't a Chief Minister nor the Chairperson of a national party. This right to contest is not a fundamental right. If you still want to contest you can file nominations and fight from jail. One gentleman in Jammu & Kashmir had even won the parliamentary elections from jail," Justice Pitale said orally.

Notably, Agawane was arrested in January this year on allegations of duping several investors by promising double returns for investing in his 'bogus' companies, based on which he obtained hefty loans. The Enforcement Directorate (ED) which registered an ECIR after relying over 12 First Information Reports (FIRs) lodged against the BJP strongman from Satara's Phaltan constituency. He is booked for serious offences (in the 12 FIRs) for offences like attempt to murder, forgery, kidnapping and also under stringent laws like the Maharashtra Control of Organised Crime Act (MCOCA), Maharashtra Protection of Interests of Depositors (MPID) and also the Maharashtra Money Lending (Regulation) Act (MMLRA) of 2014.

In his defence, Agawane contended that he never obtained the loan to the tune of Rs 12 crore, as alleged by the ED and alleged that he was being 'falsely implicated' in all these cases registered against him at the behest of his rival and former BJP Member of Parliament (MP) Ranjeetsinh Naik Nimbalkar. He alleged that all the cases were filed after Nimbalkar, who took Agawane as his 'political rival' wrote letters to various authorities including ED, on his then official letter head (as an MP), asking them to book him in various cases.

Further, Agawane argued that the 'right to contest' was his right, which cannot be taken away from him. He relied upon the SC ruling in Arvind Kejriwal's case, wherein the former Delhi Chief Minister was granted interim bail to campaign for the then General Elections. He emphasised that in the 2019 State Assembly Elections, though he was defeated but he received more than 40 per cent votes in the constituency. 

However, the plea was vehemently opposed by Special Public Prosecutor Sandesh Patil, assisted by advocate Chintan Shah, who highlighted that Agawane was a 'history sheeter' in 12 predicate offences and is also booked in one offence under the stringent Prevention of Money Laundering Act (PMLA). The special prosecutor further argued that Agawane to get even interim bail, must pass the 'twin test' under the PMLA case, especially the condition that 'he will not commit a crime.'

"Investigation is still going on in 5 of the predicate cases. It is our case that he is a threat to the society given the number of serious offences, he is booked for. He does not have a fundamental right to contest. As far as the ruling in Arvind Kejriwal's case is concerned, the top court considered that he had no antecedents and that he was an elected Chief Minister of Delhi. But in this case, Kejriwal ruling cannot be applied," Patil told the court.

Having heard the contentions, Justice Pitale took into account the fact that Agawane is charged for serious offences under MPID, MCOCA and even the MMLR Act.

"It cannot be said at this stage itself that he doesn't have antecedents. At this stage it cannot be accepted that the 12 FIRs are lodged against him at the behest of then sitting MP. Considering the fact that serious offences under the IPC concerning body injury are lodged against the applicant besides MCOCA, MPID, MMRL Act etc, at this stage, I cannot give a finding that he isn't a threat to the society. He is certainly not a Chief Minister or a Chairman of a national party. Suffice it to say contesting an election isn't a fundamental right," the judge observed in the order, while rejected the interim bail plea.