New Delhi: Prolonged incarceration before being held guilty should not be permitted to become “punishment without trial”, the Supreme Court has said while granting bail to BRS leader K Kavitha in the Delhi excise “scam” cases.
The court also said the fundamental right to liberty is “superior” than the restrictions imposed by the anti-money laundering law.
K Kavitha, 46, was in jail since her arrest by the Enforcement Directorate on March 15 in a money laundering case linked to the alleged excise policy scam. The Central Bureau of Investigation (CBI) later arrested her in the main corruption case on April 11.
A bench comprising Justices B R Gavai and K V Viswanathan on Tuesday granted her bail in both the cases and questioned the central probe agencies over the fairness of their investigation and asked if they were free to “pick and choose” an accused.
In a 13-page judgement, uploaded on the apex court website on Wednesday, Justice Gavai reiterated the well-established principle that “bail is the rule and refusal is an exception”.
Referring to various judgements, including in the case of Manish Sisodia, a former Delhi deputy chief minister and a co-accused, the verdict said, “The prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.”
“We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions (of the Prevention of Money Laundering Act),” the judgement said.
It noted that the CBI and the ED have concluded their investigations and Kavitha’s custody was not needed for the probe.
Taking note of Kavitha’s stay in jail for the last five months, the bench said 493 witnesses were yet to be examined and documents running into about 50,000 pages to be considered which made conclusion of the trial impossible in the near future.
“We had also reiterated the well-established principle that ‘bail is the rule and refusal is an exception’,” it said.
The bench also dealt with section 45 of the PMLA which provides for the twin conditions which are required to be satisfied before granting bail to an accused under the anti-money laundering law. The twin conditions are that the judge should be prima facie satisfied that the accused has not committed the offence and that he is not likely to commit any offence while on bail.
It also found fault with the Delhi High Court judgement which did not grant benefit of bail to Kavitha under section 45(1) of the PMLA which entitles a woman to special treatment.
The said proviso to Section 45(1) of the PMLA reads : “Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special court so directs”.
“A perusal of the…proviso would thus reveal that the proviso permits certain category of accused including woman to be released on bail, without the twin requirement under Section 45 of the PMLA to be satisfied …However, when a statute specifically provides a special treatment for a certain category of accused, while denying such a benefit, the court will be required to give specific reasons as to why such a benefit is to be denied,” it said.
The high court came to a “heartening conclusion” that Kavitha was highly qualified and a well-accomplished person, the apex court bench said.
“The learned Single Judge thereafter proceeds to observe that the present appellant cannot be equated to a ‘vulnerable woman’…We find that the learned Single Judge erroneously observed that the proviso to Section 45(1) of the PMLA is applicable only to a ‘vulnerable woman’,” Justice Gavai noted.
“We, therefore, find that the learned Single Judge of the High Court has totally misdirected herself while denying the benefit of the proviso to Section 45(1) of the PMLA,” the verdict said.
The Supreme Court ordered Kavitha’s release on bail on furnishing bail bonds in the sum of Rs 10 lakh in each of the cases.
While quashing the high court verdict, the apex court said Kavitha shall not make any attempt to tamper with evidence or influence the witnesses and shall deposit her passport with the trial judge.
It said she shall regularly attend the trial court proceedings and cooperate to ensure expeditious disposal of the trial.
Kavitha, the daughter of former Telangana chief minister K Chandrashekar Rao, has been accused of being part of the ‘South Group’, a cartel of businessmen and politicians, which allegedly paid kickbacks of Rs 100 crore to Delhi’s ruling AAP in return for liquor licences. She has denied all allegations.
