Thread by @barandbench

Bombay High Court is hearing the bail applications of the DHFL promoters, Kapil Wadhawan and his brother Dheeraj, accused in the Yes Bank laundering case.

(Kapil Wadhawan v. Central Bureau of Investigation & Ors., Dheeraj Wadhawan v. Central Bureau of Investigation & Ors.)

Matter is being heard by Justice SV Kotwal.

Senior Advocates Amit Desai and Abhishek Man Singhvi appear for the Wadhawan brothers.

ASG Anil Singh appears for the CBI.

Desai has commenced arguments. He is taking the court through the basic facts in the matters.

Referring to pleadings submitted.

Desai: The averments in the complaint must make out an offence. Ultimately the court will apply its mind. This is under Section 167(2) of CrPC.

Desai: Section 190 stage is where you apply mind for cognizance. Stage of Section 167 where you take cognizance for investigation.

Desai: Not a single averment on introspect or dominion.

Desai shows the orders of the special magistrate court.

Desai points out that completion of investigation is the only requirement for Section 167(2) for releasing an accused.

Court seeks more clarification on this point because it is a substantial right wherever it is possible.

The Court asks Desai to read Section 167 and Section 173 to assist the court in interpretation.

Desai: When we deal with the question of legisative history, in order to deny the accused of statutory bail, all kinds of subterfuges are used. Hence the magistrate court who has power to look into the evidence and investigation, should be given the complete investigation.

Deai: If the investigation is incomplete, the accused may be convicted, but the accused cannot be denied of his right to bail because of that reason.

Desai: The judge has to make a note that the investigation is complete.

Desai: Then there is cognizance.

Desai: Begins with the judgement of Narendra Ameen. of Supreme Court.

Asks the Court to note the dates in the judgement.

Read judgment here: indiankanoon.org/doc/24360272/

Desai: Filing of report under Section 173 meant filing of report not completion of investigation.

Desai: This judgment has no relevance, I am merely distinguishing.

Desai says that this judgment relied by CBI had no application in the present case.

Desai: Section 167 cannot rely upon just the opinion of the investigating officer, the Court has to look into the evidence and apply its mind.

The magistrate is not a post office, it needs to have all material, hence the material matters.

Desai: The Report under 173(2) is complete only when it is in line with Section 173(5)

Desai relies on Veeraswamy judgemnt (Read here: indiankanoon.org/doc/1269046/) only for paragrapgh 76.

Desai proceeds to Musadi judgment (Read here: indiankanoon.org/doc/918619/).

Desai: My submissions are 167 requires submission of all material after a complete investigatin.

Desai: That it must be noted by the judge, that everythign under Section 173 (2) and 173 (5) has to be noted by the judge.

Desai: in the present case the report was not tendered. There is no order sheet of 25 June.

Court will resume hearing at 3 pm.

Hearing resumes.

Desai had submitted that the chargesheet to be submitted under the Section 167(2), the Magistrate has to take cognizance of that .

Court asked CBI to clarify on that point.

Desai reads out several judgments of the Supreme Court and Bombay HC to substantiate his arguments pertaining to Section 167(2).

Court asks Desai to limit the judgments to one or two for each point of law.

Desai: Becuase there was no 409, they came to court on the 60th day just to refuse my right to bail with an incomplete chargesheet.

Advocate Venegaokar appearing for CBI points out that the report of what transpired on 25th June 2020 will have to be produced before Kotwal, if Desai wants to dispute what happened that day.

Court grants leave to CBI to file an affdavit to put on record.

Desai submits another judgment..

Court: if not for me, atleast for Mr. Singhvi who is patiently sitting since morning finish your arguments sooner Mr. Desai.

Singhvi: Milords, the advantage of virtual is, while being visible to the court, we can be gainfully employed.

Singhvi: I would prefer arguing freshly from Thursday.

Court: The advantage for starting today is Mr. Desai will stop.

All laugh.

Desai begins to submire more judgments, the Courts points out that there are more than 16 judgments now.

Desai concludes his arguments by stating that the grounds for invoking default bail are made out in the matter, and hence default bail ought to be granted.

Court asks Singhvi to continue, however Singhvi points out that he is to appear in another matter before the Delhi High Court which is reaching for hearing.

Court adjourns matter to Thursday.