Supreme Court's Tryst With Politicians' Bail In 2024

Among the many bail pleas the Supreme Court of India was called on to decide during 2024, a few were preferred by political leaders. These included - Aam Aadmi Party leaders Arvind Kejriwal, Manish Sisodia and Sanjay Singh; BRS leader K Kavitha; former Tamil Nadu minister (and MLA) V Senthil Balaji; Jharkhand CM Hemant Soren; UP MLA Abbas Ansari; and former West Bengal Education Minister (and MLA) Partha Chatterjee.

Decisions in most of these cases reflected the Court's heightened priority to preserve values of liberty and resolve against prolonged pre-trial detention. Let's take a look at each of them.

Sanjay Singh

AAP MP Sanjay Singh was arrested by ED in connection with the Delhi Liquor Policy 'scam' on October 4, 2023, following searches at his residence in Delhi. The agency alleged that an employee of businessman Dinesh Arora delivered Rs. 2 crores to Singh's house on two occasions.

On April 2, a bench of Justices Sanjiv Khanna (now CJI), Dipankar Datta and PB Varale granted bail to Singh in the money laundering case related to the 'scam', following a concession by ED. When ED said it had no objection to grant of bail to Singh in "peculiar facts of the case", the Court ordered his release, clarifying that nothing was being expressed on merits.

During the hearing, after observing that there were 9 exculpatory statements made by approver-Dinesh Arora and no money had been recovered from Singh, the Bench had asked ED whether further custody of Singh was required. Further, ASG SV Raju (appearing for ED) was asked to consider the implications of an order being passed in favor of Singh on merits, which would have attracted findings from the Court insofar as Section 45 PMLA was concerned.

In this backdrop, ED gave a concession and Singh obtained bail.

Hemant Soren

Jharkhand CM Hemant Soren was arrested on January 31, 2024 over money laundering charges in connection with an illegal mining case, as well as an alleged land scam in Ranchi. As per ED, approximately 8.5 acres of property in question constituted proceeds of crime and Soren was charged with unauthorized possession and usage.

Prior to Lok Sabha Elections, 2024, Soren approached the Supreme Court for interim bail, but his plea was not considered. During the summer break, a vacation bench of the top Court refused to entertain his petition challenging ED arrest, orally remarking that he had not disclosed facts relating to the Special Court taking cognizance of the complaint filed by ED. The same led to the petition's withdrawal.

Soon after, Soren approached the Jharkhand High Court for bail. The High Court held in his favor, observing that there was no evidence directly linking him to the possession of the land in question and ED's statements (that its intervention prevented illegal possession of the land) were ambiguous. The High Court further observed that in Soren's case, the twin conditions under Section 45 of PMLA were satisfied and thus he had to be released. It was also noted that in the numerous registers and revenue records recovered from accused-Bhanu Pratap Prasad's premises, Soren or his family members' names did not appear.

Aggrieved by this order, ED approached the Supreme Court, claiming that the High Court's order was "illegal" and it could not have said that there was no prima facie evidence against Soren. On July 29, a bench of Justices BR Gavai and KV Viswanathan dismissed ED's plea, opining that the High Court's judgment was "very well reasoned."

Manish Sisodia

Former Delhi Deputy CM Manish Sisodia was arrested by CBI and ED in connection with the Delhi Liquor Policy 'scam' on February 26 and March 9, 2023 respectively.

On August 9, 2024, a bench of Justices BR Gavai and KV Viswanathan granted him bail in both CBI and ED cases, taking note of his long pre-trial incarceration and the fact that the trial in the cases had not even commenced. The bench opined that Sisodia had been deprived of his right to speedy trial.

"We find that on account of long incarceration running around 17 months and trial having not been commenced, the appellant has been deprived of the right to speedy trial".

The Court noted that there was "not even remotest possibility of trial being completed" in the near future considering there were 495 witnesses and thousands of documents running into lakhs of pages. To keep Sisodia under custody for an unlimited period of time in the hope of a speedy completion of trial would result in a grave violation of the fundamental right to personal liberty under Article 21, it said.

Further, the Court opined that Sisodia had "deep roots in the society" and hence he was not a flight risk. Also, most of the evidence in the case is documentary in nature, which has already been collected; hence there is no possibility of tampering. As regards the apprehension of influencing or intimidating witnesses, the Court said that conditions could be imposed.

In the judgement, the Court reiterated that prolonged incarceration and the delay in the trial should be read into Sections 439 of the Code of Criminal Procedure and 45 of the Prevention of Money Laundering Act.

Recently, the Court deleted a bail condition imposed on Sisodia which required his appearance before the Investigating Officers of ED and CBI twice a week.

K Kavitha

On August 27, 2024, a bench of Justices BR Gavai and KV Viswanathan granted bail to BRS leader K Kavitha in the money laundering and corruption cases related to the Delhi Liquor Policy 'scam'. It was noted that the prosecution complaints/chargesheets had already been filed and further custody of the leader, who had already spent over 5 months in jail, was no longer necessary.

The Court also observed that the trial in both cases was unlikely to complete soon, since there were about 493 witnesses to be examined and documentary evidence ran into nearly 50,000 pages. The observation in Manish Sisodia's case, that undertrial custody should not be turned into a punishment, was reiterated.

Kavitha was arrested by ED on March 15 and had been under custody since then. The CBI had arrested her while she was in judicial custody in the ED case.

During the hearing of Kavitha's case, the Court also questioned the fairness of the prosecution agencies (CBI/ED) and criticized their selective approach in treating some accused as approvers. "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!", remarked Justice Gavai.

Arvind Kejriwal

Former Chief Minister of Delhi-Arvind Kejriwal was arrested by ED in connection with the Delhi Liquor Policy 'scam' on March 21, after the Delhi High Court refused to grant him interim protection earlier in the day. He remained in custody thereafter, until the Supreme Court granted him the benefit of interim release (for the purposes of Lok Sabha elections) on May 10. The same expired on June 2.

The Delhi CM initially approached the Delhi High Court challenging ED's arrest. However, his plea was dismissed and aggrieved by the same, he moved the top Court. The eventful hearings in the case witnessed questions being raised on the necessity and timing of the leader's arrest, as well as allegations that ED withheld material favoring him. ED's case remained that there was "direct" evidence to show that Kejriwal demanded Rs. 100 crores, which went to AAP for Goa election expenses.

At the time when the parties were heard on the question of interim bail to Kejriwal, the bench questioned ED's timing of arrest, noting that the ECIR was registered in August, 2022, but Kejriwal came to be arrested about 1.5 years later (before elections). Ultimately, ED's contention that Kejriwal's release for the purposes of election campaigning would amount to putting politicians in a beneficial position, compared to ordinary citizens, was rejected and the interim relief granted.

"Given the prodigious importance (of general elections), we reject the argument raised on behalf of the prosecution that grant of interim bail/release on this account would be giving premium of placing the politicians in a benefic position compared to ordinary citizens of this country. While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances. In fact, to ignore the same would be iniquitous and wrong", the Court said while rejecting a contention that grant of interim bail to Kejriwal would amount to conferment ofpecial status.

Balancing other aspects of the case with the severity of allegations against Kejriwal, it added, "The appellant – Arvind Kejriwal is the Chief Minister of Delhi and a leader of one of the national parties. No doubt, serious accusations have been made, but he has not been convicted. He does not have any criminal antecedents. He is not a threat to the society."

After Kejriwal was temporarily released from jail, he surrendered back on June 2. Thereafter, on June 20, he was granted bail in the ED case by a Delhi Court. This order was stayed by the Delhi High Court on June 25. On the very same day, CBI arrested Kejriwal under the Prevention of Corruption Act in relation to the liquor policy case.

On July 12, the Supreme Court granted Kejriwal interim bail in the money laundering case, while referring his petition challenging ED arrest to a larger bench to examine the question whether need or necessity of arrest must be read as a condition into Section 19 PMLA. While the relief was granted, it was directed that Kejriwal shall not visit the CM office and Delhi Secretariat during the period of interim release. From a legal perspective, the Court observed inter-alia that arrest under Section 19 PMLA cannot be made simply for the purposes of investigation. Rather, the power can be exercised only when the concerned officer is able to form an opinion, based on material in possession, and upon recording reasons in writing, that the arrestee is guilty.

Be that as it may, Kejriwal continued to remain in judicial custody due to his arrest by the CBI. The Delhi High Court dismissed his plea challenging CBI arrest, but insofar as bail was concerned, liberty was given to approach the trial Court. Aggrieved by the High Court order, Kejriwal approached the Supreme Court.

On September 13, he was granted bail by the Supreme Court in the CBI case. However, the bench of Justices Surya Kant and Ujjal Bhuyan dismissed his challenge to the arrest made by CBI, holding that there was no "procedural infirmity", even as Justice Bhuyan questioned the necessity and timing of his arrest. Remarking that CBI's arrest raised more questions than it sought to answer, Justice Bhuyan noted that CBI did not arrest Kejriwal for over 22 months and arrested him on the cusp of his release in the ED case.

While the same bail conditions as imposed by the coordinate bench in ED case were directed to apply to the CBI case, Justice Bhuyan expressed reservations about the bail condition that Kejriwal should not visit the CM's office or the Delhi Secretariat. However, he chose not to pass any direction in that regard having regard to judicial discipline and reverence for a direction passed by a coordinate bench.

The verdict put to rest litigations over the CBI case, however, Kejriwal's arrest in the ED case, and the question whether he should continue on interim bail in the case, are still pending consideration.

Abbas Ansari

On October 18, a bench of Justices Surya Kant and Ujjal Bhuyan granted bail to Uttar Pradesh MLA Abbas Ansari in a case involving allegations that his wife made unrestricted visits to him in Chitrakoot jail and he used her mobile phone to threaten witnesses and officials. The order was passed having regard to the fact that investigation was complete, chargesheet had been filed, Ansari had been in custody for more than 1.5 years (in the concerned case) and that conclusion of trial was likely to take time.

At the same time however, the bench denied Ansari relief in a case under the UP Gangsters' Act. Dismissing his bail plea, the Court granted liberty to approach the High Court for bail, with a request to the High Court that it decide the bail plea within 4 weeks of filing.

The same day, Ansari was granted bail in a money laundering case by a bench of Justices MM Sundresh and Pankaj Mithal. As per allegations in this case, he used two firms (M/s Vikas Construction and M/s Aaghaaz) to launder money; one of these ie M/s Vikas Construction usurped government land in districts Mau and Ghazipur by resorting to forgery, cheating, and criminal trespass.

V Senthil Balaji

Former Tamil Nadu Minister V Senthil Balaji was arrested by ED in June, 2023 following allegations of involvement in a cash-for-jobs scam during his tenure as the state's Transport Minister between 2011-2016.

On September 26, a bench of Justices Abhay S Oka and AG Masih granted him bail in the money laundering case, despite finding a prima facie case, considering the unlikelihood of early completion of trial and long incarceration. It was said that stringent bail provisions and delay in trial cannot go together, and the requirement of speedy trial must be read as a condition in special statutes which impose stringent bail conditions.

Subsequently, on September 29, Balaji took oath as a Minister in the Cabinet led by Chief Minister MK Stalin, with charge over the portfolios of electricity, non-conventional energy development, prohibition & excise.

Following this, ED sought recall of the judgment granting bail on the ground that Balaji's appointment as a Cabinet Minister shortly after he was granted bail was causing undue pressure on the witnesses against him. The agency highlighted that Balaji was reinstated as a Cabinet Minister within 48 hours of his release on bail. Further, it was alleged that despite the Court's earlier direction to expedite trial, Balaji's actions showed a deliberate attempt to delay proceedings.

On December 2, the Court expressed surprise at Balaji's appointment as a Cabinet Minister soon after being granted bail. It refused to recall the judgment granting bail but limited the scope of inquiry to whether witnesses in the case might be under pressure due to his ministerial position.

Partha Chatterjee

Former West Bengal Education Minister (and MLA) Partha Chatterjee moved the Supreme Court aggrieved by Calcutta High Court's denial of bail to him in the money laundering case arising out of a scam involving illegal recruitment of Assistant Teachers under the West Bengal Board of Primary Education. Over the course of hearings, the top Court expressed concerns about keeping an accused under custody for a long period without trial and flagged the low conviction rates in the cases prosecuted by ED.

The day orders were reserved in the case, Chatterjee's counsel (Sr Adv Mukul Rohatgi) sought to claim parity with co-accused (who had been granted bail). However, Justice Surya Kant stressed that Chatterjee alone was holder of a Ministerial post and as such, could not claim parity. When Rohatgi said that no recovery had been made from him, the judge said that as a Minister, Chatterjee would not keep money with him "obviously." As arguments continued, Justice Kant got displeased and commented in a raised voice, "On the face of it you are a corrupt person! What message you want us to send to society? That corrupt persons can get bail like this?"

On December 13, a bench of Justices Kant and Ujjal Bhuyan directed that Chatterjee be released on bail in the ED case on or before February 1, 2025. Despite observing that the materials suggested existence of a prima facie case against Chatterjee, the Court granted relief following the principles that pre-trial incarceration should not amount to punitive detention and a suspect cannot be kept in custody indefinitely.

Other Supreme Court Annual Round-up stories can be read here.