For Justice Swarana Kanta Sharma's Recusal, Arvind Kejriwal Relies On Delhi HC Accepting ED Plea To Change Judge In Satyender Jain's Case

Seeking the recusal of Justice Swarana Kanta Sharma from hearing the liquor policy case, Aam Aadmi Party supremo Arvind Kejriwal cited the 2022 order of the Delhi High Court, which accepted the Enforcement Directorate's plea to change the trial judge in AAP leader Satyender Jain's case.

Kejriwal claimed that he had a stronger case than the ED's plea seeking recusal of the judge hearing Jain's case. He is seeking the recusal of Justice Sharma from hearing the CBI's revision petition challenging the trial court's order discharging Kejriwal and all other accused in the controversial liquor policy case.

Kejriwal appeared before Justice Sharma and argued the matter himself. At the outset, he submitted that he respected the court and the judiciary.  

To this, Justice Sharma said, "The respect is mutual. We will just concentrate on this case and argue the recusal application. I am there to cooperate with you". 

Kejriwal submitted that he was no longer an accused, as he had been discharged. Referring to the discharge order of the trial court, Kejriwal said that the Trial court had heard the matter day-to-day, and after reading the evidence, he had been discharged. Kejriwal highlighted that the Trial Court said that the CBI's case was premeditated. 

However, on March 9, Justice Sharma, on the first date of hearing the CBI's petition, partially stayed the Trial Court's order, and made a prima facie finding that some of the Trial Court's observations were erroneous, even without hearing the other side. This, Kejriwal said, was an extraordinary action, which created a reasonable apprehension of bias in his mind.

He said, "When this order came, my heart dropped. I had doubts whether court is biased and if I will get justice here. This is why I wrote to Chief Justice (of Delhi High Court) that case may be transferred to any other bench. Then I filed this application (for recusal)".

He referred to a Supreme Court judgment on the principle of recusal and said:

"The Supreme Court said that it is not necessary that a judge has to be biased, but if there is a reasonable doubt in the minds of the parties, then it is a case for recusal. I have apprehension in my mind. 

He further submitted that the application for recusal is between the Court and the applicant, and CBI has no locus in this. 

Similarities with Satyendar Jain's case on recusal

He further said that in a matter pertaining to Satyendar Jain's case, it was heard for 6 days. At that time, the ED had no apprehension, but on the last date of hearing, suddenly ED had an apprehension and the matter was transferred to another judge. 

He said, "This court granted judgment in ED's favour. In that case, and in my case there are a lot of similarities. The question is not of the integrity of the judge, question is apprehension in the mind of the party. In that case, this court relied on the SC judgment. I am only requesting the same parity as ED (in Satyendar Jain), especially when my apprehensions are on much stronger ground".

Though Jain had approached the Supreme Court against the high court order, however he had subsequently withdrawn his petition. Jain was booked in a money laundering case, after the ED had attached properties worth Rs. 4.81 crore belonging to five companies and others in connection with an alleged disproportionate assets case against Jain and others. These assets reportedly were in the name of Akinchan Developers, Indo Metal Impex, Paryas Infosolutions, Mangalayatan Projects and J.J. Ideal Estate etc.

The money laundering case is based upon an FIR registered by the CBI against the minister and other individuals in the year 2017, under the Prevention of Corruption Act, wherein it was alleged that during the period of February 2015 to May 2017, the minister had acquired assets disproportionate to his known sources of income. The CBI had then filed a chargesheet in December 2018 against Jain.

Reasonable apprehension of not getting a fair hearing

Referring to various judgments, Kejriwal further said, "…here exists in my mind real, grave and reasonable apprehension that this petition will not get a fair hearing. I am showing 10 grounds (of apprehension)...In Kanak Lata case, Supreme Court held that earlier strong observations may create reasonable apprehension…". 

Kejriwal further said that Justice Sharma had earlier dealt with his bail applciation and his challenge to arrest in the cases, and while dismissing those matters, observations regarding his guilt were made. These orders were subsequently reversed by the Supreme Court.

"The High Court's observations almost amounted to judgments. My case related to illegal arrest. Limited matter court had to decide was whether the IO has reasons to believe. Court was not required to put weight behind reasons or give a final verdict. It appears the court gave a final judgment in just two hearings," he argued. 

Kejriwal referred to Justice Sharma's 2024 judgment upholding his arrest in liquor policy case and said:

"One issue of ED, CBI's raids where no recovery was made, this court gave strong finding, final finding on that. This is a very strong statement," he said. 

Kejriwal said that there were deals between approvers and ED, CBI wherein they were arrested, and later there used be bargaining and they would "give some names".

He said that on this point also there was a finding by the High Court wherein, he argued, a final finding was given on approver statements and he was "almost declared guilty and corrupt". 

Kejriwal said, "Trial court's order on this point is completely contrary. It has concluded no crime took place, no bribery, no proceeds of crime. No money was taken to Goa".

The court then orally asked, "What is your argument?  Trial court heard you after me. I am only hearing you only on recusal. Till now you have argued correctly. We will concentrate on your 10 points. I have recorded three of your points...I have noted it".

CBI case based on approver statements

Kejriwal, "Trial court said that approver statements are completely unreliable…The trial court discharged me with complete contrary findings (to high court). Now I come to Manish Sisodia's case. Case was under PMLA. In this case also I felt that almost judgment was pronounced". 

Kejriwal further said it was pronounced that Sisodia committed money laundering. "In one paragraph, it was almost said that all these people are corrupt. It felt as though Kejriwal is not only corrupt but he was declared as Maha-corrupt," he said. 

Kejriwal said that the CBI's entire case is based on statements of approvers. "Your finding on approvers' statements gives serious doubt that previous observations are weighing very heavily in the court's mind. It shows that the court still strongly sticks to its earlier findings. On March 9, only CBI's petition was listed and trial court's order was there. Trial court's record was not before the high court. What was the need for this order (March 9 order)?," the former CM said. 

March 9 order also creates apprehension

Kejriwal questioned the urgency of March 9 order passed by the High Court, because of which there was an apprehension in his mind. 

"In March 9 order, trial court proceedings with respect to ED were stayed. It was criminal revision petition. ED had nothing to do with the CBI petition. There was no written prayer regarding ED. Mr. Mehta was appearing for the CBI, not for the ED. On his oral prayer, this part (regarding ED) was put in the order. Nobody was heard. Two days after, ED filed a petition but the court was very generous to ED," Kejriwal said. 

"Even today, I stand like an accused in the ED's case. A message has gone out after this stay that the ED's proceedings should be kept pending; now, they're sending you the order reversing the discharge

As reason number 4, Kejriwal cited Justice Sharma staying the trial court's adverse comments against the CBI Investigating Officer.

"Reason no 4—proceedings with respect to the IO were also stayed by the high court. The trial court's remarks are not just strictures. Trial court had written points against the IO. Those remarks were against IO, not the CBI. IO did not ask for a relief from the high court, he was not before the high court. Only on CBI's request, proceedings against IO were halted, this creates deep apprehension," he stated. 

Kejriwal said that Supreme Court, in a judgment, has said that no discharge order shall ordinarily be stayed.

"It says it is only in rare cases where discharge order is stayed. Without hearing us, the order was partly stayed and other part was set aside by high court. It appears that most of the trial court order is neutralized by way of ex parte order," Kejriwal said. He also added that he was not served the CBI's petition. 

"Reason no 6, this court has had MP/MLA roster since 5 January. We analysed the revision petition. There is no other case which is being heard at this speed. These two cases are pertaining to important political opponents," he said. 

At this stage, Justice Sharma asked, "So you are insinuating political bias?".  "In one case, three months time was given. In another case, 6 months time was given...". 

Thereafter, Kejriwal said that he had observed a trend that every single argument of ED CBI is endorsed by Justice Sharma.

"All arguments accepted by this court. Every prayer of ED CBI is converted into a judgment. Except one (Arun Pillai case). Whenever ED CBI ask for anything, that argument is accepted and order is passed in their favour. In 4 hours CBI filed revision petition against trial court order which has detailed findings. CBI's petition has nothing; it is a very general petition. But in this petition, ex parte order is passed on first hearing," he added.

On Justice Sharma attending event of Adhiwakta Parishad

He thereafter said:

"Reason 9–there is a body called Adhiwakta Parishad. It is linked to the RSS. Your honour had attended its events 4 times. We are completely against their ideology. And this case is political. If your honour is attending program of a particular ideology, then reasonable bias is created; an impression is created that because I am from opposite ideology, whether I will get justice or not". 

At this stage, Justice Sharma orally asked Kejriwal:

"Whether when I had gone to that program whether I had made a political statement or ideological statement or was it a legal program?".

To this, Kejriwal responded that the mere fact that the Judge had gone and attended the program gives rise to suspicion.

He further said, "The Home Minister made a statement recently, that against the High Court order which will come, appeal will be filed. Kejriwal will have to go to Supreme Court". At this stage the court orally asked, "What control I have over what he or you says?".

Kejriwal then submitted that there were discussionin social media about Justice Sharma's children being empanelled as Central Government lawyers.

"The reasons create a very strong suspicion. There is one topic being discussed on social media. If a judge's near and dear ones..." At this stage, SGI Mehta said that there was nothing submitted by Kejriwal on this issue in the pleadings. 

Kejriwal said, "If a judge's near ones were related to parties or were related to lawyers, they would recuse. My request is to kindly consider it". 

CBI opposed Kejriwal's application

Last week, the CBI had filed its reply opposing the applications filed by Kejriwal, saying that bias cannot be attached to views of judges taken in their decisions.

The excise policy was framed by the Delhi Government to boost revenue and reform liquor trade in 2021, which was later withdrawn after allegations of irregularities in implementation were made and Lieutenant-Governor Vinay Kumar Saxena ordered a probe by the Central Bureau of Investigation into the policy.

The AAP chief (Kejriwal) was formally arrested by CBI on June 26, 2024, while he was in custody of the Enforcement Directorate in the money laundering case arising out of the alleged liquor policy scam.

Case Title: CBI v. Kuldeep Singh & Ors