Bombay High Court to continue hearing the bail applications of the DHFL promoters, Kapil Wadhawan and his brother Dheeraj, accused in the Yes Bank laundering case.
Justice SV Kotwal will begin hearing the applications shortly.
Justice SV Kotwal will begin hearing the applications shortly.
Sr. Adv. Amit Desai began his submissionson behalf of Kapil Wadhawan in the previous hearing.
Read here:
Read here:
https://twitter.com/barandbench/status/1318437812379643904?s=20
Hearing resumes.
Court: I was privy to your conversation before I joined in. I am glad there was no discussion on the 'judge'
Desai: We were not aware milord.
Sr. Adv. Dr. Abhishek Manu Singhvi: We did not know the judge is allowed to eavesdrop from the lobby like that
Court: I was privy to your conversation before I joined in. I am glad there was no discussion on the 'judge'
Desai: We were not aware milord.
Sr. Adv. Dr. Abhishek Manu Singhvi: We did not know the judge is allowed to eavesdrop from the lobby like that
Singhvi: It is dangerous.
Court: extremely
Court was referring to the conversation amongst advocates over video conference while waiting for the court to log in the hearing.
Court: extremely
Court was referring to the conversation amongst advocates over video conference while waiting for the court to log in the hearing.
ASG Anil Singh made a submission before the petitioners begin, that the investigation report was submitted in the registry of the lower court, after the special magistrate's direction due to the protocols during pandemic.
Court had asked the ASG to verify this fact.
Court had asked the ASG to verify this fact.
Court: You show me a SC judgment or HC judgment or CrPC to prove that the report has to be submitted with the magistrate.
Desai submitted that there was no judge assigned for the matter on that date. I am disputing this fact.
Desai submitted that there was no judge assigned for the matter on that date. I am disputing this fact.
ASG: My instructions are the filing of the report was an oral direction.
Desai: How was there no roznama? If there was a judge, there has to be a roznama.
ASG: Milords may record Mr. Desai' statement that no court was assigned.
Desai: How was there no roznama? If there was a judge, there has to be a roznama.
ASG: Milords may record Mr. Desai' statement that no court was assigned.
Court: Desai if you are serious about his allegation, the ASG will file an affidavit, you file counter affidavit, and then I will call for proceedings.
Desai: Give me sometime, I will get back with this in the afternoon.
Court asks Dr. Singhvi to begin his arguments.
Desai: Give me sometime, I will get back with this in the afternoon.
Court asks Dr. Singhvi to begin his arguments.
Singhvi: I have two propositions.
1. statute bail is a vital liberty linked indefeasible right and subterfuges, direct or indirect, will be seen through and eliminated by the Ld. Judge to effectuate the right in letter and spirit.
a. this relates only to the 90 day rule u/s409
1. statute bail is a vital liberty linked indefeasible right and subterfuges, direct or indirect, will be seen through and eliminated by the Ld. Judge to effectuate the right in letter and spirit.
a. this relates only to the 90 day rule u/s409
Singhvi: I want to begin with the judgments in this proposition.
b. the nature and concept of statutory bail is originally forgotten, use of personal liberty, whether oral or written, it is indefeasible,
b. the nature and concept of statutory bail is originally forgotten, use of personal liberty, whether oral or written, it is indefeasible,
b. (contd.) ask for it on 60/90, no subterfuges, strategms to frustrate, strict construction, no concern to the seriousness of the offence, how technological advances have impacted statutory bail.
Singhvi: Now I begin with Rakesh Paul judgment.
Singhvi: Now I begin with Rakesh Paul judgment.
Court: As I understand 167 - 60/90 days, there is a common thread in these numbers.
CrPC gives powers to the Courts to give remand for a certain time. The point is why is accused entitled to bail?
Power to continue remand is under 209 and 309 CrPC.
CrPC gives powers to the Courts to give remand for a certain time. The point is why is accused entitled to bail?
Power to continue remand is under 209 and 309 CrPC.
Singhvi: Our idea is accused cannot be kept indefinitely.
Court: So it is there is power to grant remand, and if there is no power then bail is default.
Singhvi: What I am proposing is that the bail is being granted for x days, that increases by adding a section later.
Court: So it is there is power to grant remand, and if there is no power then bail is default.
Singhvi: What I am proposing is that the bail is being granted for x days, that increases by adding a section later.
Court: It is difficult for the court to take cognizance if the report comes at the last minute on the 90th day. What happens in that situation?
Singhvi: I am arguing that kindly exclude the cognizance period, for this case.
Singhvi: This liberty aspect is vital.
Singhvi: I am arguing that kindly exclude the cognizance period, for this case.
Singhvi: This liberty aspect is vital.
Singhvi asked the court to note: if the charge sheet is not filed and the right for ‘default bail’ has ripened into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext
From the Rakesh Paul judgment.
From the Rakesh Paul judgment.
(contd.) We reiterate that no subterfuge should be resorted to, to defeat the indefeasible right of the accused for ‘default bail’ during the interregnum when the statutory period for filing the charge sheet or challan expires.
Singhvi (from the judgment): We are dealing with ‘default bail’. There is no discretion in such matters.
“Any society that would give up a little liberty to gain a little security will deserve neither and lose both” - Benjamin Franklin.
“Any society that would give up a little liberty to gain a little security will deserve neither and lose both” - Benjamin Franklin.
Singhvi also point out another judgment of Supreme Court.
He then proceeds to the facts to point out the subterfuge.
FIR filed in April, the chargesheet filed on the 60th day.
By 30th June default bail applicaitonis filed. 90th day expires on 25th July.
He then proceeds to the facts to point out the subterfuge.
FIR filed in April, the chargesheet filed on the 60th day.
By 30th June default bail applicaitonis filed. 90th day expires on 25th July.
Singhvi: 27th July bail application filed qua 90th day.
There are 8 dates of remand, in none of those dates is there a mention of any offence or ingedient under 409 and the likes.
Chargesheet comes with a suddenness.
There are 8 dates of remand, in none of those dates is there a mention of any offence or ingedient under 409 and the likes.
Chargesheet comes with a suddenness.
Special magistrate noted that there are ingredients which can meet the 409 elements. But the chargesheet had no whisper of that.
Singhvi reads out the judgment of constitution bench by Justice Mukherjee.
And another judgment Velji Raghavji Patel vs State Of Maharashtra. Read here: indiankanoon.org/doc/573838/
And another judgment Velji Raghavji Patel vs State Of Maharashtra. Read here: indiankanoon.org/doc/573838/
He points out a paragraph from the judgment in Central Bureau Of Investigation, vs Duncans Agro Industries (indiankanoon.org/doc/980208/)
Singhvi: I am pointing out that section 409 was added to make it a 90 day period.
Singhvi invites the court's attention to the order of the Special Magistrate of CBI.
Singhvi invites the court's attention to the order of the Special Magistrate of CBI.
Singhvi: The magistrate should not be hunting for ingredients in the chargesheet.
Singhvi: If your lordship has chargesheet with no ingredients but only offences, then use personal liberty and lean in favour of the accused.
Singhvi: If your lordship has chargesheet with no ingredients but only offences, then use personal liberty and lean in favour of the accused.
Singhvi: I haven't come across a chargesheet which has no ingredients for the offences.
Singhvi: Now my second proposition.
Court: Before that complete reading the order. (magistrate order)
Singhvi: Now my second proposition.
Court: Before that complete reading the order. (magistrate order)
Singhvi: next submission is filing of chargesheet within statutory bail time limit but before the wrong forum and refiling beyond time in the right forum fully activates and ripen the indefeasible right to default bail,
(contd) irrespective of the diversity of reasons for which the wrong filing occured.
This is for the 60th day proposition.
This is for the 60th day proposition.
Singhvi refers to the judgment of Suvarnamala Chavan from the Aurangabad bench of Bombay High Court
Read here: indiankanoon.org/doc/145244880/
Read here: indiankanoon.org/doc/145244880/
Singhvi then reads the order of the magistrate court in the present case.
Singhvi: At this point, I submit the strictness to appoint law and Justice Nariman's judgment should be applied in spirit.
Singhvi: Now I will supplement Mr. Desai'a argument by adding something from the judgment of Narendra Amin and Veeraswamy.
Singhvi: Now I will supplement Mr. Desai'a argument by adding something from the judgment of Narendra Amin and Veeraswamy.
Singhvi: Finding of Narendra Amin is in ignorance of the facts and it is perincuriam because it is directly contrary to the 5 judge bench judgment of Veeraswamy.
Singhvi points out to a judgement of Justice Ramana - Shah Faesal vs Union Of India (indiankanoon.org/doc/77360882/#….)
Singhvi concludes by submitting that above all, the guiding pole star is that this is not about technicality.
We should be able to persuade Milords in normal bail about the triple test : Co-operation, flight risk, interference with witnesses.
We should be able to persuade Milords in normal bail about the triple test : Co-operation, flight risk, interference with witnesses.
And there may be a judgment which has all the above, but at the end of the judgment, bail is denied because of "nature of offences".
But in American jurisdiction, a murderer is given bail, within 24 hours, upon fulfilling the triple test.
But in American jurisdiction, a murderer is given bail, within 24 hours, upon fulfilling the triple test.
Singhvi: For a larger issue of some other day, we must note that our justice system there is no presumption of guilt, and this should not be forgotten.
Singhvi: This was digressing from my case.
Singhvi concludes his arguments.
ASG Anil Singh begins arguments for the CBI.
Singhvi: This was digressing from my case.
Singhvi concludes his arguments.
ASG Anil Singh begins arguments for the CBI.
ASG begins by reading the Section173 and Section 167 of the CrPC.
ASG: What is relevant for 167(2) is a report which is referred in 173(2) and not 173(5).
ASG: What is relevant for 167(2) is a report which is referred in 173(2) and not 173(5).
ASG relies and points out important paragraphs from the judgments submitted to the Court in a compilation.
He refers to judgements in the case of RS Pai (indiankanoon.org/doc/924107/)
Court breaks for lunch, will resume at 3 pm.
Hearign resumes.
ASG: I was showing the judgment of Harvinder Singh.
ASG points out more judgments from the compilation submitted.
ASG: I was showing the judgment of Harvinder Singh.
ASG points out more judgments from the compilation submitted.
ASG: My submission pertains to the entire argument that Narendra Ameen is per incuriam Veeraswamy and that it has ignored Veeraswamy.
Having interpreted Veeraswamy in Narendra Ameen, the law of per incuriam arises when the higher court or larger bench is not referred.
Having interpreted Veeraswamy in Narendra Ameen, the law of per incuriam arises when the higher court or larger bench is not referred.
ASG: HC will not interpret the judgment of SC.
ASG: I will refer to the judgment of Central Board Of Dawoodi Bohra vs State Of Maharashtra
Read here: indiankanoon.org/doc/934139/
ASG: I will refer to the judgment of Central Board Of Dawoodi Bohra vs State Of Maharashtra
Read here: indiankanoon.org/doc/934139/
ASG points out the judgments referred to by Desai and Singhvi to submit to the Court that the facts in those judgments were totally different.
He submitted that the courts have held that if all conditions under Section 173(2) are complied with, then the procedure is followed.
He submitted that the courts have held that if all conditions under Section 173(2) are complied with, then the procedure is followed.
ASG: I am submitting that for fulfilling conditions of 167(2), the conditions mentioned in the 173(2) have to be fulfilled.
Court: But what about cognizance?
ASG: reads out the paragraphs from the Veeraswamy judgments to make his further submissions.
Court: But what about cognizance?
ASG: reads out the paragraphs from the Veeraswamy judgments to make his further submissions.
ASG submits that the Narendra Ameen rightly went through the judgment of the judgment of Veeraswamy and applied that law to the facts of the case before Narendra Amin.
Court: Does Narendra Ameen discuss this difference of facts?
ASG checks.
Court: I am asking to understand if Veeraswamy held something different?
ASG checks.
Court: I am asking to understand if Veeraswamy held something different?
Court: The judgment says that documents have to be filed with the report.
What does the Section say?
What does the Section say?
ASG: If we meet the requirements of Section 173(2) then that is enough and I do not agree that documents have to be part of the documents.
ASG: Document is a diffeent aspect that goes after the report.
ASG: Document is a diffeent aspect that goes after the report.
ASG: I will now show the chargesheet to show that there is compliance of Section 173(2).
ASG: moves to the SC judgement in the case of Abdul Aziz of 2014.
Court: Beofre going to Section 409 arguments, give me what happened about submission of the report.
ASG: My statement is Inspector of Police in office of CBI, along with the Public Prosecutor went to Court no. 47, presided by Judge SU Wadgaokar to file the chargesheet.
ASG: My statement is Inspector of Police in office of CBI, along with the Public Prosecutor went to Court no. 47, presided by Judge SU Wadgaokar to file the chargesheet.
ASG: They went on 25.06.2020 at 10 am because court was sitting at 10 am. Prosecutor mentioned the matter and told the court that he wanted to tender the chargesheet.
Prosecutor was informed by the court associate as directed by court to file the chargesheet in the registry.
Prosecutor was informed by the court associate as directed by court to file the chargesheet in the registry.
ASG: The registry was outside the court building where special arrangements were made because of COVID.
After reaching the counter, the registration clerk asked the officer whether you have intimated the court
The officer said he had informed.
After reaching the counter, the registration clerk asked the officer whether you have intimated the court
The officer said he had informed.
ASG: As per instructions of the court, the papers were kept in the registry untouched. this was the COVID protocol.
Court: I will record in my order as it is.
Court: I will record in my order as it is.
Desai: I will have to file an affidavit, because I have other instructions.
Court: So then you both file affidavits, this will have to be postponed.
Court: So then you both file affidavits, this will have to be postponed.
Desai: Milords I will have to put on affidavit because my instructions are completely different from what the ASG has submitted. I have a certified copy of the Court record.
Court: what are you disputing? Are you disputing that the date was different?
Court: what are you disputing? Are you disputing that the date was different?
Court: Why don't you point out the provision where it is mandatory that the reoprt has to be filed with the magistrate only?
Desai: Let my friend finish his submissions on Section 409 and then I will proceed on that.
Court asks ASG to continue with his submissions.
ASG points out to the chargesheet to show how the ingredients of Section 409 were laid out in the chargesheet.
Court asks ASG to continue with his submissions.
ASG points out to the chargesheet to show how the ingredients of Section 409 were laid out in the chargesheet.
ASG: makes submissions pertaining to the offences.
Desai disputes on some of the them.
ASG relies on documents submitted.
Court asks Desai to let ASG finish his submission.
Desai disputes on some of the them.
ASG relies on documents submitted.
Court asks Desai to let ASG finish his submission.
There is a constant breakage in the internet connectivity.
ASG logs in from two devices.
Court: Log out from one device.
ASG: Milords there are 4 applications, hence two devices.
Court: See even your device battery is draining out, the judge's battery is not.
ASG logs in from two devices.
Court: Log out from one device.
ASG: Milords there are 4 applications, hence two devices.
Court: See even your device battery is draining out, the judge's battery is not.
ASG concludes his arguments by submitting that the investigation procedures have been complied with and a case has been made out. Hence this application ought to be rejected.
Desai requests the courts permission to submit a short rejoinder on the issue of Section 167(2) and Section 173(2) and 173(5).
Desai refers to the 41st law commission report.
Desai reiterates his previos arguments regarding the submission of the documents with the report.
Court asks Desai to poitn out judgments which clearly point out that the report has to be filed before the Magistrate.
Desai informs that he has a list ready.
Court asks him to only give the judgments and paragraphs.
Desai informs that he has a list ready.
Court asks him to only give the judgments and paragraphs.
Desai starts listing out the jugdments, the Court asks him to to point out the specific paragraph which lays down this specific point that the report has to be produced before the Magistrate.
Court: But where in the judgments does it say that it is not accepted in the registry?
Desai: I am hoping that you will interpret that in your order.
Court: but your proposition was clear that the report is to be produced "only" before the magistrate.
Desai: I am hoping that you will interpret that in your order.
Court: but your proposition was clear that the report is to be produced "only" before the magistrate.
Desai: I am sorry Milords if my articulation is insufficient
Court: What are you saying Mr. Desai! That was not my intention.
Desai: Let me rephrase in clearer words.
The filing of a completed report under 173 is a requirement under 167.
Court: What are you saying Mr. Desai! That was not my intention.
Desai: Let me rephrase in clearer words.
The filing of a completed report under 173 is a requirement under 167.
Desai: Inorder to determin that such a report is complete for his indefeasible right, that report must be placed and considered by the judge who is empowered to take cognizance, jurisidcitional court. and not the registry.
Only when the report is complete, will this process work
Only when the report is complete, will this process work
Desai: Submitting the report before anyone but the judge is not fulfilling the requirement of 167.
Only when the court finds it complete, will it consider the indefeasible right.
Pandemic does not exempt the Investigating agency to give an excsue to not place before judge
Only when the court finds it complete, will it consider the indefeasible right.
Pandemic does not exempt the Investigating agency to give an excsue to not place before judge
Desai: therefore on facts of the case, this part of the procedure was not done, there was no complete report.
Court: come to your pleading then (referring to a pleading)
Court: You have not raised the contention of registry and magistrate before the magistrate.
Court: come to your pleading then (referring to a pleading)
Court: You have not raised the contention of registry and magistrate before the magistrate.
Desai: ASG is not puttign it on affidavit, but I will put it on affidavit.
ASG: This is an argument without any pleading.
ASG: This is an argument without any pleading.
Court: Do I take it that the arguments are concluded or you will be filing affidvits.
Desai: I want to put it on affidavit
Court: But have the other arguments been concluded?
Desai: Singhvi has sent a message that there is some submission on the Section 409.
Desai: I want to put it on affidavit
Court: But have the other arguments been concluded?
Desai: Singhvi has sent a message that there is some submission on the Section 409.
Court: If there are any more arguments, then those have to happen today and now.
ASG: As far as the submissions of the Union is considered, those are concluded, but about the affidavit, I leave it to the Court.
ASG: As far as the submissions of the Union is considered, those are concluded, but about the affidavit, I leave it to the Court.
ASG: All I am saying is the Special Judge has heard the matter and that was not before him, there is no pleading, it is unfair to him.
Court: I will ensure that the judge is protected. Nothing unfair against him. Never against a judge.
Court: I will ensure that the judge is protected. Nothing unfair against him. Never against a judge.
Desai: Can I point out a factual submission from the chargesheet? ASG has argued somethign that is factually correct.
Court: Mark my words, I will not go into the truthfulness and falsity of the chargesheet.
I will confine to the report.
Court: Mark my words, I will not go into the truthfulness and falsity of the chargesheet.
I will confine to the report.
Desai: Singhvi wants 15 mins but tomorrow, post lunch, just 15 mins.
Court: I will allow not one more minute and on one more condition that the affdavits will have to be filed before 4 pm tomorrow, not a minute after that.
And nothing after tomorrow.
Court: I will allow not one more minute and on one more condition that the affdavits will have to be filed before 4 pm tomorrow, not a minute after that.
And nothing after tomorrow.
Court adjourns the matter to tomorrow at 4 pm for Dr. Singhvi to submit his rejoinder.
Hearing concluded for the day.
Hearing concluded for the day.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
