How ‘fair’ are the CBI and ED, asks the Supreme Court on K Kavitha's case

A Supreme Court bench comprising justices B.R. Gavai and K.V. Viswanathan on Tuesday, 27 August, granted bail to BRS leader K. Kavitha in the money-laundering and corruption cases related to the Delhi liquor policy.

Kavitha had been arrested on the evening of 15 March this year by the Enforcement Directorate (ED) and has been in custody since. The CBI then also arrested her while she was already in judicial custody in the ED case.

'Prosecution has to be fair. A person who incriminates himself has been made a witness!' said Justice Gavai during the hearing. 'Tomorrow you (will) pick up anyone as you please? You cannot pick and choose any accused. What is this 'fairness'?' 

Justice Gavai also had occasion to warn the additional solicitor general of India, S.V. Raju, that the court would feel constrained to record adverse observations in its order if the ASG continued to oppose bail on merits.

The ASG, after arguing for nearly an hour, finally conceded. However, refusing to adjourn the hearing, the bench proceeded to dictate the order.

The bench noted in its order that the investigation has been completed and that the chargesheet or prosecution complaint had already been filed in both the CBI and ED cases.

The custodial interrogation of the petitioner, therefore, was no longer necessary.

With as many as 493 witnesses to be examined and the documentary evidence running into nearly 50,000 pages, the trial is unlikely to end soon, the bench noted. However, it pointed out, the undertrial's custody could not be extended into a punishment as seemed to have been awarded by the trial court.

The bench criticised the observations made by the Delhi High Court while denying bail to the BRS leader too. Pointing out that the Prevention of Money Laundering Act (PMLA) entitled a woman to special consideration as regards bail, the bench frowned on the high court’s refusal to grant her bail on the plea that she belonged to a high status and was not vulnerable. The Delhi High Court order came from Justice Swarna Kanta Sharma.

Senior Advocate Mukul Rohatgi, appearing for the BRS leader, argued that being an ex-MP and a current member of the Legislative Council, there was no chance of Kavitha fleeing from justice.

Rohatgi also questioned the High Court's reasoning in saying that she was not a 'vulnerable woman' and hence was not entitled to the benefit of the proviso to Section 45 of the PMLA. "The normal practice is that women do get bail," Rohatgi submitted.

Pointing out that no recovery had been made from the BRS leader, he argued for bail to be granted. Responding to the ASG’s contention that she had changed her mobile phone to destroy evidence, Rohatgi argued that she was summoned for the first time in March 2024 and the phone was changed four months before that.

ASG S.V. Raju, appearing for the CBI and the ED, said that when she was summoned, her phone was found to have been formatted to erase all call records, FaceTime data, etc.

Justice Viswanathan intervened to say, "Phone is such a private thing — would anyone share the details with anyone? People delete messages. I have the habit of deleting group messages. These school and college groups post many messages. Let us see the normal human conduct. Anyone in this room would (delete messages)."

When the ASG referred to statements of the co-accused, Arun Pillai, Justice Viswanathan asked whether the incriminating statements of a co-accused could be relied on solely to implicate someone else in the absence of independent evidence.

The ASG replied that there was indeed independent evidence in the case. He referred to the statements of certain individuals such as Raghav Magunta Reddy and Bucchi Babu, recorded by the judicial magistrate under Section 164 CrPC.

"Approvers' statements also need corroboration," Justice Viswanathan quipped in reply.