Approver statements used to ‘fill gaps, improve narrative’, says court in excise policy order

A Delhi court criticized the CBI for improperly handling statements of accused-turned-approver Dinesh Arora in the excise policy case, questioning fairness.

The role of an accused-turned-approver in the excise policy case investigated by the Central Bureau of Investigation (CBI) came under sharp scrutiny on Friday, as a Delhi court criticised the agency for violating legal principles and belatedly recording statements to suit its theory of an overarching conspiracy.

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Special judge Jitendra Singh of Rouse Avenue Courts questioned the manner in which the statement of Dinesh Arora – an accused who was granted pardon and turned approver – was recorded on at least four occasions. The court observed that repeat instances of recording Arora’s statement raised concerns about the fairness and propriety of the process.

In criminal law, an accused may be tendered pardon on the condition that they make a “full and true disclosure” of all facts within their knowledge. Upon accepting the pardon, the accused becomes an approver – effectively a prosecution witness – whose testimony can be used against co-accused perceived to bear greater culpability.

In the excise policy case, CBI’s prosecution theory relied substantially on the statements of two accused-turned-approvers: Raghav Magunta Reddy, son of a YSR Congress MP, and businessman Dinesh Arora. Both purportedly described their presence at meetings related to the formulation of the 2021-22 Delhi excise policy and alleged that kickbacks routed through hawala channels were used to finance the Goa assembly election campaign of the Aam Aadmi Party (AAP).

The court noted that while CBI secured a pardon for Arora on the assurance that he would make a complete and truthful disclosure, it continued to re-record his statements over nearly one-and-a-half years, “ostensibly to fill gaps, improve the prosecution narrative, implicate additional accused, or artificially weave missing links in the chain of circumstances”.

The court said the agency failed to offer any convincing explanation for recording Arora’s statements repeatedly over such a prolonged period. This unexplained conduct, the judge observed, reflected a “disturbing departure” from established legal norms governing the grant of pardon.

The law does not permit, the court underlined, that once an approver has been granted pardon, he can be subjected to repeated statement-recording under Section 161 of the Code of Criminal Procedure merely to refine or reshape the prosecution’s case.

The court emphasised that that the approver’s statements assumed significance especially as the prosecution’s case largely rested on surmises, conjectures and inferential leaps which were unsupported by cogent material.

Analysing a statement given by Arora on October, 2023, wherein he allegedly referred to the delivery of an amount of ₹1 crore which was stated to have been handed over to one Sarvesh Mishra acting on behalf of Sanjay Singh, the court said that it was surprising as Singh’s name never came up in any of the chargesheets.

“There is no allegation anywhere on the record attributing to Sanjay Singh any role, direct or indirect, in the formulation, approval or implementation of the excise policy,” the court said.

The court said that the approver, who has been projected as an all-encompassing source for the prosecution narrative, appeared to introduce new assertions with each examination. “On one occasion he introduces an entirely new allegation, and on another, seeks to supply explanations to fill links that are otherwise conspicuously absent in the evidentiary chain,” the court noted.

Pulling up CBI, the court highlighted that the manner in which the investigating agency had proceeded by repeatedly recording the statement of the approver without any justification and over a prolonged duration, was an exercise of discretion and could not be termed fair or reasonable.