Explained: Sisodia’s Bail and SC’s Message to Trial Courts, HCs

On Friday, the Supreme Court granted bail to former deputy chief minister of Delhi Manish Sisodia in two cases linked to an alleged liquor scam being investigated by the Central Bureau of Investigation (CBI) and the Directorate of Enforcement (ED).

A Bench of Justices B.R. Gavai and K.V. Viswanathan declared that Sisodia had been deprived of his right to a speedy trial under Article 21 of the Constitution on account of a long period of incarceration of 17 months without the trial even having commenced.

It noted that the two agencies have named a total of 493 witnesses and the case involves thousands of pages of physical documents and over one lakh pages of digitised documents. Based on these facts, it concluded that it was not possible that the trial would be concluded anytime soon.

“As observed time and again, prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial,” the Bench ruled.

A Bench of Justices B.R. Gavai and K.V. Viswanathan declared that Sisodia had been deprived of his right to a speedy trial under Article 21 of the Constitution.

It also overruled the preliminary objection of the two agencies suggesting that Sisodia should be asked to approach the trial court afresh. It observed that it could not make Sisodia play “snakes and ladders” and doing so would be a travesty of justice.

The Bench rejected the apprehension of the ED and the CBI that there was a possibility of evidence being tampered with if bail was granted to Sisodia. The Bench observed that since the case largely relied on documentary evidence that had already been seized by the prosecution, there was no possibility of evidence tampering.

The Bench has directed Sisodia to surrender his passport to the special court. It has also directed him to report to the investigating officer every Monday and Thursday.

After the pronouncement of the judgment, Additional Solicitor General (ASG) S.V. Raju requested the Bench to also impose conditions similar to those imposed on Delhi chief minister Arvind Kejriwal on Sisodia.

When Kejriwal was granted interim bail for a second time on July 12 in the same case, the court imposed a condition that he would not visit the chief ministerial office or the Delhi secretariat, effectively putting his chief ministership in limbo.

The Bench flatly refused to impose such a condition on Sisodia.

The Bench also had a message for trial courts and high courts. It observed that instead of playing safe in bail matters, courts must follow the well-recognised principle that “bail is the rule and jail is the exception”.

How did the Bench conclude to grant bail to Sisodia?

The CBI registered a first information report (FIR) against Sisodia on August 17, 2022. The ED registered a case against him on August 22, 2202. He was arrested on February 26, 2023 by the CBI. Later, the ED arrested him on March 9, 2023.

The CBI filed a chargesheet on April 25, 2023, for offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption Act, 1988 read with Sections 420, 201 and 120B of the Indian Penal Code, 1860.

Upon completion of the investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 on May 4, 2023.

To understand the Order passed by the Supreme Court on Friday, it is necessary to refer to two previous Orders passed by the Supreme Court in Sisodia’s case. The first of these Orders was passed on October 30, 2023 by a Bench comprising Justices Sanjiv Khanna and S.V.N. Bhatti. The second Order was passed on June 4, 2024 by a Bench comprising Justices Arvinda Kumar and Sandeep Mehta.

What did the first Supreme Court Order say?

The first Order came on a regular bail petition filed by Sisodia. A Justice Khanna-led Bench denied regular bail to Sisodia. However, the Bench expressed concerns about the delay in the trial. It recorded the assurance given by the prosecution that the trial would be concluded by taking appropriate steps within the next six–eight months (from October 4, 2023).

The court thus granted liberty to Sisodia to move a fresh bail application in case of a change in circumstances or in case the trial proceeded slowly in the next three months.

“As observed time and again, prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial,” the Bench ruled.

The Justice Khanna-led Bench also observed that if any bail application was filed, the same would be considered by the trial court on merits without being influenced by the dismissal of earlier bail applications, including the one it was dismissing. It further observed that the observations made regarding the right to a speedy trial would be taken into consideration.

Since the trial proceeded at a snail’s pace in the three months after the first Order, Sisodia filed a second bail application before the trial court on January 27, 2024.

The trial court rejected the bail petition on April 30, 2024 on merits. It also held Sisodia responsible for delaying the trial. On May 21, 2024, Justice Swarna Kanta Sharma of the Delhi High Court also dismissed the bail petition filed by Sisodia. It endorsed the findings of the trial judge regarding Sisodia causing a delay in the trial.

What did the second Supreme Court Order say?

Sisodia challenged Justice Sharma’s Order in the Supreme Court. On June 4, 2024, a Bench led by Justice Arvind Kumar disposed of the petition after recording the submissions of ASG Raju that the investigation would be concluded and the final complaint or charge sheet would be filed expeditiously on or before July 3, 2024 and immediately thereafter, the trial court would be free to proceed with the trial.

The Justice Kumar-led Bench also granted liberty to Sisodia to revive his prayer afresh after the final complaint or charge sheet had been filed. Sisodia did so.

ASG Raju, for the CBI and the ED, raised a preliminary objection on the very maintainability of the new petition in the Supreme Court.

His contention was that Sisodia could not be permitted to file a second special leave petition (SLP) to challenge the Order of the high court when the earlier SLPs arising out of the same Order had been disposed of. He submitted that the liberty granted by the court on June 4, 2024 had to be construed as a liberty to apply to the trial court afresh.

Senior advocate Dr Abhishek Manu Singhvhi, for Sisodia, opposed the submissions made by Raju. He argued that the second Order of the court clearly reserved the right of Sisodia to revive the request after the final complaint or charge sheet had been filed.

The Bench also had a message for trial courts and high courts. It observed that instead of playing safe in bail matters, courts must follow the well-recognised principle that “bail is the rule and jail is the exception”.

On merits, Singhvi argued that the first Order of the court gave various findings in favour of Sisodia. He submitted that a perusal of the records would reveal that the investigation in the case had not been completed. Therefore, he submitted that unless the investigation is complete, the trial cannot proceed.

He also submitted that three more supplementary complaints had been filed on May 10, 2024; May 17, 2024 and June 20, 2024 in the ED matter, and as of July 27, 2024, 40 persons had been arrayed as accused in the proceedings with more than eight complaints.

Singhvi further submitted that in the ED matter, the agency has cited 224 witnesses and produced 32,000 pages of documents. He further submitted that, in the CBI matter, the agency has cited 269 witnesses and produced around 37,000 pages of documents.

Singhvi thus argued that all in all, there are 493 witnesses, excluding the ones in the fourth supplementary charge sheet filed by the CBI, who will have to be examined and that in total the documents run into around 69,000 pages.

Importantly, Singhvi also highlighted that the ED deliberately concealed the documents it had acquired during the investigation by putting documents exculpating the accused persons in the category of “un-relied upon documents”. Sisodia had filed applications in the trial court to inspect those documents. Singhvi argued that there was an inordinate delay on the part of the ED and the CBI in producing the list of “un-relied upon documents”.

ASG Raju, for the CBI and ED, argued that the Supreme Court, in its first Order, found a prima facie case against Sisodia. He also argued that though the Supreme Court, through its first Order, had granted liberty to file a fresh application in the trial court, it was held that the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail applications, including the first Order.

On this count, Raju submitted that the trial court as well as the high court were required to take into consideration the merits of the matter but Sisodia opposed consideration of the application on merits and insisted on consideration of the application only on the ground of delay in trial.

Supporting the trial court and the high court Orders on merits, Raju also submitted that both the courts specifically came to a finding that Sisodia had delayed the pre-charge proceedings by taking recourse to the provisions of Section 207 of the Criminal Procedure Code.

Since the trial proceeded at a snail’s pace in the three months after the first Order, Sisodia filed a second bail application before the trial court on January 27, 2024.

He submitted that more than a hundred applications have been filed out of which many are under Section 207 of the CrPC. These applications had been filed only for the purpose of delaying the trial.

Justice Gavai-led Bench overruled the preliminary objection

The Bench observed that when Sisodia had approached the Supreme Court in the second round and when the second Order was passed by the court on June 4, 2024, a period of seven months and four days had elapsed from the date of the first Order of the court.

But the court took into consideration the statement of ASG Raju that the investigation would be concluded and the final complaint or charge sheet would be filed expeditiously on or before July 3, 2024 and thereafter, the trial court would be free to proceed with the trial.

The Bench pointed out that the June 4, 2024 Order, after observing that “having regard to the fact that a period of six-eight months fixed by this court in its first Order having not come to an end”, disposed of the petitions with liberty to Sisodia to revive his prayer afresh after the filing of the final complaint or charge sheet.

In view of this, the Bench observed that to make Sisodia approach the trial court again and thereafter the high court and only thereafter the Supreme Court would be akin to making him play a game of “snakes and ladders”.

“The trial court and the high court have already taken a view and in our view relegating the appellant again to the trial court and the high court would be an empty formality.

In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post,” the Bench ruled while rejecting the preliminary objections of the CBI and the ED.

On merits, the Bench took note of the contention of ASG Raju that since the conditions for the grant of bail as provided under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA) have not been satisfied, Sisodia is not entitled to the grant of bail.

The Bench rejected the argument.

It underscored that both the high court and the trial court were required to consider the bail applications in light of the observations made by the Justice Khanna-led Bench in its first Order regarding the delay in trial.

Singhvi also highlighted that the ED deliberately concealed the documents it had acquired during the investigation by putting documents exculpating the accused persons in the category of “un-relied upon documents”.

The Bench held that both the trial judge and the high court had rejected bail to Sisodia citing Section 45 of the PMLA. This, the Bench added, was in ignorance of the observations made by the Justice Khanna-led Bench in the first Order wherein it was specifically observed that the right to bail in cases of delay coupled with incarceration for a long period should be read into Section 439 of the CrPC and Section 45 of the PMLA.

On the observations made by the trial court and the high court that it was Sisodia who had been delaying the trial, the Bench observed that Sisodia filed only 13 applications in the CBI matter and 14 in the ED matter.

Some of the applications are for seeking permission to meet his wife or permission to file vakalatnama, to put signatures on the documents, seeking permission to sign a cheque, etc.

Most of the applications are for the supply of missing documents and legible copies under Sections 207 and 208 of the CrPC. Some of the applications are for inspection of the “un-relied upon documents”.

The Bench highlighted that all these applications had been allowed by the trial court. Some of these Orders were also challenged before the high court wherein a stay was granted.

The Bench stated that when it specifically asked the ASG to point out any Order wherein the trial judge found any of the applications filed by Sisodia to be frivolous, not a single Order could be pointed out by him.

The Bench thus ruled that the findings of the trial judge that Sisodia is responsible for delaying the trial is not supported by the record.

On the high court’s endorsement of the finding of the trial court on the ground that the accused persons had taken three months from October 19, 2023 to January 19, 2024 for inspection of “un-relied upon documents” despite repeated directions from the trial court to conclude the same expeditiously, the Bench observed that there are around 69,000 pages of documents involved in both the CBI and the ED matters.

The Bench thus ruled that the findings of the trial judge that Sisodia is responsible for delaying the trial is not supported by the record.

“Taking into consideration the huge magnitude of the documents involved, it cannot be stated that the accused is not entitled to take a reasonable time for inspection of the said documents. In order to avail the right to a fair trial, the accused cannot be denied the right to have an inspection of the documents including the ‘un-relied upon documents’,” the Bench ruled.

Importantly, the Bench also pointed out a self-contradictory statement of the ED and the CBI. It noted that it was submitted on June 4, 2024 before the court that the investigation would be concluded and the final complaint or charge sheet would be filed expeditiously on or before July 3, 2024.

Accordingly, the eighth charge sheet was filed on June 28, 2024 by the ED. The Bench noted that even according to the ED and the CBI, the investigation was to be concluded on or before July 3, 2024.

“If the investigation itself was to conclude on or before 3rd July 2024, the question is how could the trial have commenced prior to that?” the Bench observed.

“In that view of the matter, we find that the contention raised by the learned ASG is self-contradictory. If the investigation itself was to conclude on or before 3rd July 2024, the question is how could the trial have commenced prior to that?

“If the investigation itself was to conclude after a period of eight months from the date of the first Order of this court, there was no question of the trial being concluded within a period of six–eight months from the date of the first Order of this court. We find that both the high court and the trial court have failed to take this into consideration,” the Bench observed.

Click here to read the judgment.