A good poker player knows when to hold and when to fold.
After initially opposing Sanjay Singh’s application for bail, in a case filed by the enforcement directorate, Additional Solicitor General S.V. Raju was asked by the Supreme Court to consider his client’s position. The case against Singh was based upon a statement by a witness, who had initially not alleged criminality, but changed his statement much later. There had been no money ever recovered from Sanjay Singh and there appeared to be no possibility of proving that Singh had partaken of the proceeds of crime. Singh had been in custody for over six months and neither investigation or trial had made progress.
The court therefore asked ASG Raju, “….You have kept him in custody for 6 months. Dinesh Arora has not initially implicated him. Later on, in a statement, he does. No money has been recovered, the trace of money is not there because it was long back. Fact of the matter is money has not been recovered. Please keep in mind that if we are […] with him, we are required to record in terms of section 45 that he has prima facie not committed an offence. That could have its own ramifications in trial.”
Raju returned post lunch and threw in his hand. He said that he would not oppose the grant of bail, in the peculiar facts of the case. He did not want the order in the case to be cited as a precedent that would be applicable to the bail petitions of the other accused.
As a result, the court’s order reads:
“….Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent – Directorate of Enforcement1 was asked in the morning session to obtain instructions. He states that the respondent – Directorate has no objection in case the appellant – Sanjay Singh is released on bail during the pendency of the proceedings arising out of ECIR no. HIU-II/14/2022 dated 22.08.2022 instituted in respect of offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. We must record that the concession has been made on behalf of the respondent – Directorate before commencement of arguments on their side. In view of the statement made, we allow the present appeal and direct that the appellant – Sanjay Singh will be released on bail during the pendency of the aforesaid proceedings, on terms and conditions to be fixed by the trial Court.
“…We clarify that the concession given in the Court today would not be treated as a precedent.We also clarify that we have not made any comments on the merits of the case…”
The first takeaway from this episode is that when faced with draconian legislation, courts may initially yield to a presumption of constitutionality and good faith on the part of the arresting agencies, but that yielding cannot indefinitely continue. The law enforcement machinery has a mandate for fair and impartial prosecution. It does not have a licence for political persecution. The present case has seen not only the arrest of Sanjay Singh but that of Manish Sisodia, K. Kavitha and Arvind Kejriwal as well.
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The arrests and detention have not resulted in any tangible advance in the investigation. On the contrary, public perception has been that the possible destruction and demise of the Aam Aadmi Party is a consummation devoutly wished for by those who direct the directorate, Thus the ED could not expect to indefinitely detain without trial, by simply relying on the tough conditions set out in Section 45 of the PMLA.
The second takeaway is that fanciful prosecutions can fall apart, if courts ask the right questions. Prosecutions may at an interim stage try to shut out bail applications, by drowning the applicant and the court process in a sea of papers and mass of undigested material. However, if forensic focus is attracted towards the crucial facts alone, then unnecessary confusion which aids the prosecution is avoided. This case appears to have turned on the fact that the witness kept improving his statements.
The third takeaway is that harsh laws made for extraordinary cases, are allowed to be applied in routine fashion for all cases, they will lead to an abuse of due process and the rule of law. PMLA was intended to take away the proceeds of crime from Arms dealers and drug lords. Ordinary crime was meant to be handled though the routine process with inbuilt safeguards. Suspected corruption in political opponents, cannot be a lever for locking them away in election season. An electoral democracy works best, when political parties can equally participate in elections. An election without effective participation by the opposition, is a recipe for authoritarianism. Courts will not long tolerate a system where advance punishment without trial is administered as due process.
Sanjay Singh may return home today to face a trial in the future. His co-accused in the same case, deserve parity notwithstanding ASG Raju’s tactical concession trying to limit bail to Singh alone. Not every matter requires to be fought all the way to the Supreme Court and it is not the sole sentinel on the qui vive. Trial courts and the high courts equally need to pay heed to what Chief Justice Patanjali Shastri said in VG Row’s case in 1952:
“If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights “, as to which this Court has been assigned the role of a sentinel on the qui vive.”
The Supreme Court in the order on Sanjay Singh’s bail has blown the bugle against the excesses of the ED. Other courts too can reasonably be expected to hearken to the call.
Sanjay Hegde is a senior advocate at the Supreme Court of India.
