Accepting Arvind Kejriwal's Plea To Recuse Will Set Bad Precedent: CBI Tells Justice Swarana Kanta Sharma

The Central Bureau of Investigation told the Delhi High Court on Monday (April 13) that accepting applications filed by AAP Supremo Arvind Kejriwal and others seeking recusal of Justice Swarana Kanta Sharma from hearing the liquor policy case, will set a bad precedent.

Earlier in the day, Kejriwal while arguing in person, claimed that he had a reasonable apprehension in his mind that he will not get a fair hearing. 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.

Threshold for recusal is the highest

Appearing for the CBI, Solicitor General Tushar Mehta submitted before Justice Swarana Kanta Sharma that the matter assumes importance "because of the precedent it may set", that based on "surmises, conjectures and unreasonable apprehension and virtually maligning the bench, a litigant can choose the bench".

"If judges start recusing, will any judge in this country be able to decide impartially?" Mehta asked.

Mehta submitted that the applicants seeking recusal were erroneous, and while the CBI has a right to oppose such applications, the bench also a duty to thwart any action which results into casting aspersions without reasons and create an atmosphere that court may have given into some form of pressure.

"Your ladyships are taking two roster, MP/MLA cases and other cases also. I will assist the court how this is erroneous. There is a pattern. It is not only the right of CBI to oppose but also the duty of bench to thwart any action which results into casting aspersions without reasons and creating an atmosphere that ultimately court may have to succumb to some kind of pressure. It is very relevant that the threshold of deciding a recusal application is always at the highest level".

Regarding Kejriwal's argument that Justice Sharma's previous observations while rejecting his plea challenging the ED arrest, Mehta submitted that as per Section 19 of the Prevention of Money Laundering Act, the Court was mandated to make such preliminary observations regarding the need for arrest.

The SG also pointed out that the Supreme Court has not overruled the High Court's judgment approving his arrest (the matter is only referred to a larger bench while granting interim bail to Kejriwal). He argued that the Kejriwal suppressed this aspect and misled the Court.

On the Supreme Court granting bail to another applicant Manish Sisodia, Mehta said that Apex Court granted bail because of long incarceration.

Applicants were served, chose not to remain present

On Kejriwal's objection to the High Court passing an ex-parte interim order on the first day of hearing the CBI's revision, SG said that the accused were given advance copies and they chose to remain absent.

"See the conduct, that this application is not a bona fide application. Judgment in discharge application was reserved on February 22 and judgment delivered on February 27. Matter was listed on March 9. I will show HC Rules permit that party's lawyers can be served and they were served. Same counsels who were served are appearing now".

"The Court could have stayed the order of discharge but it was neither prayed nor court considered that. Interim order is of such a nature that doesn't cause any prejudice to them," he added.

He said that immediately after the March 9 order, Kejriwal and Sisodia moved before the Chief Justice of High Court for removing the matter from the present bench.

"Chief Justice passes order on March 13. Next date, two proceedings are filed (in Supreme Court). Challenging March 9 order on ground that prima facie some observations were made. Whenever the court anywhere passes interim order, prima facie observations have to be made. But they went to Supreme Court by filing SLP and a writ challenging Chief Justice's order refusing recusal application. When matter was next listed on March 16, time was sought by respondents," Mehta said.

He further said that till date, the SLP is kept under objections which have not been removed.

CBI questions Kejriwal's plea on Justice Sharma attending Adhiwakta Parishad events

Questioning the allegation raised by Kejriwal that Justice Sharma attending events of Adhiwakta Parishad raised an apprehension of bias, the SG said:

"I have very serious view on that. Political views of parties may be anything. But it is a bar association. There is nothing like ideologically inclined. The moot question would be if any judge is invited by a bar association to speak on subject of law and not on ideology, would judge be justified in refusing?

From SC to this court and other high courts have attended functions of Adhiwakta Parishad and spoke on law. I don't want to name and sensationalise. But please have a look, another judge of this court. Would this judge be also disqualified? One sitting judge of SC with your ladyship and the subject was same. His (Kejriwal) bail is granted by one of the Supreme Court judges who attended Adhiwakta Parishad. It is disheartening that someone can even raise this contention".

ED case is only adjourned

Next, Mehta addressed Kejriwal's argument that Justice Sharma deferring the ED trial created a likelihood of bias.

He submitted that CBI filed a specific application seeking that observations against CBI officials be stayed. He said that ED trial is never standalone as there has to be a predicate offence, which is the basis of ED's case.

"The moment an order is an absolutely wrong order, predicate offence is put an end to. The only consequence would have been that ED case also meets the same fate…The bench was fully conscious. Your ladyship has not stayed but only said that ED case be adjourned. A balancing equity order was passed that dont dispose of ED proceedings. Otherwise all properties get released. Properties were attached," he added.

Applicants trying to instil fear

He further said:

"Judges cannot respond…Supreme Court has said that this tendency is growing and it has gone to this proportion as we are seeing today. Fear is something that the respondents are trying to instil. This recusal should be rejected with strictness. Based on material in this case, other benches have also dealt with them and arrived at same conclusion. Even if they have separate view, that is no ground for seeking recusal".

On the argument of apprehension in the minds of the applicants' Mehta said:

"An apprehensive man can apprehend anything that tomorrow the lightening can strike. It can be a tactic also".

Referring to a judgment Mehta submitted, “Even a lawyer signing such application containing scandalous allegations and contemptuous averments is also held guilty. I am not pitching that high in this case".

Can't go by social media posts

On social media posts regarding the matter, Mehta further said:

"This is a matter of institutional respect. There are several things going on in country. It's a question of how system is made to function with honesty. If this is the standard, would the case decide cases on basis of what public feels? For social media posts? For social media, you need few things, phone, data and lot of time. We don't go by media posts".

On the argument by the applicants that short date was given in CBI's revision petition, Mehta said:

"One argument was your ladyship gave small date. High Courts and trial courts are under mandate… in MP MLA cases, the SC has directed (for time-bound decisions). People don't understand this. There is a direction to dispose of cases expeditiously".

To this the court orally said, "There is a standing order which I am bound to follow".

Mehta while concluding, sought that the applications be dismissed with costs and also sought that "contempt action be initiated".

The Court reserved the order today on the recusal application after hearing the arguments.

Case Title: CBI v. Kuldeep Singh & Ors