NEW DELHI: Virtually upholding the now-scrapped Delhi excise policy, a special CBI court has observed that the then Lieutenant Governor was consulted and that his secretariat was involved in the processing of the policy.
The court noted that in such a scenario, the theory of conspiracy could not selectively survive against one constitutional authority while being rendered inapplicable to another.
Special Judge Jitendra Singh rejected the prosecution’s claim that then chief minister
Arvind Kejriwal and his deputy Manish Sisodia had unilaterally tweaked the policy. Instead, the court pointed out that the changes were attributed to the Lieutenant Governor.
Highlighting what it termed an “internal contradiction” in the prosecution’s case, the court said: “The contemporaneous documentary record establishes that formulation and processing of DEP-21/22 (excise policy) involved consultation at the highest executive level.”
“The file notings record discussions with Hon’ble LG, incorporation of suggestions, approval by the council of ministers, and subsequent appraisal of Hon’ble LG,” the court added.
The material shows institutional participation of the LG Secretariat in scrutiny and movement of the file. It further reflects that the policy was neither concealed nor processed in isolation, but travelled through recognised constitutional channels," the court observed.
It relied upon the CBI's voluminous documentary evidence to note that, in such a "scenario, the theory of conspiracy cannot selectively survive against one constitutional authority while being rendered inapplicable to another on the basis of the very same material."
The court examined the documentary trail, including committee reports, departmental notings, GoM deliberations, Cabinet approvals and communications with the LG's Secretariat, and concluded that the charge "of unilateral manipulation cannot logically and legally be sustained against the deputy chief minister alone when the documentary chain demonstrates deliberation, consultation and processing through the office of the Hon'ble LG. The same notings cannot, in law, exonerate one authority while simultaneously incriminating another, when both are reflected in the same institutional record."
The judge highlighted that the LG and the senior officers of his secretariat "were integral to the movement and scrutiny of the file. If the prosecution case were to be taken to its logical conclusion on the premise of manipulation in policy formulation, it would inevitably extend to those very authorities who processed, examined and apprised themselves of the policy. Yet no such allegation is pressed."
However, the court was quick to clarify its observations "do not imply that any other constitutional functionary ought to have been arraigned as an accused. On the contrary, the contemporaneous record, when objectively examined, discloses no unilateral manipulation by deputy CM. The material reveals a process marked by consultation, communication and administrative engagement at multiple levels. Once it is shown that the policy travelled through established constitutional channels and was processed in accordance with the Transaction of Business Rules, the foundation of a selective conspiracy allegation collapses."
The then LG Anil Baijal had deposed as one of the witnesses in the case. The CBI alleged that Baijal suggested only 1 change in the policy, but the elected govt carried out 7 changes and attributed all these falsely to the LG.
However, the court cited testimony of officials in the LG secretariat who handled the file and categorically denied any fabrication or misattribution in the matter. The court flagged the divergence in Baijal's claim, as alleged by CBI, and the denial of any fabrication by his officers. It said the files showed "shared deliberation."
Singh said if conversely, it were to be "accepted that seven suggestions emanated from the LG and were duly incorporated into the policy after discussion, then the deliberative process would stand institutionally shared. In that eventuality, any allegation that the incorporation of those suggestions formed part of a criminal design would logically extend to Anil Baijal, who was the constitutional authority and the LG at the relevant time, and to the officers of the LG secretariat who processed, recorded and communicated those inputs." The court refrained from making any adverse observation against the office of the LG as it "is a constitutional one, and judicial restraint is both appropriate and necessary".