The Delhi High Court Thursday sought responses from the city government, the police and then Chief Secretary Anshu Prakash on a plea by Chief Minister Arvind Kejriwal and his deputy Manish Sisodia challenging a trial court order in the CS assault case.
The two AAP leaders have challenged the trial court order that prosecution in the case be conducted by an officer of the Delhi Police not below the rank of Additional CP.
The hearing also witnessed a verbal spat between the lawyers appearing for the AAP government and the Delhi Police over representing the police force in the matter.
While AAP-appointed Delhi government standing counsel Rahul Mehra said only he has the right to appear for police in the case before the high court, Additional Solicitor General Aman Lekhi and Central government standing counsel Anil Soni contended that they have been authorised by the Deputy Secretary (Home) of Delhi government to represent the state in the matter.
Mehra strongly objected to Lekhi's appearance in the matter, saying he has been duly appointed through a notification to represent the Delhi Police and no one, including even the Attorney General of India, can appear in a matter when the standing counsel is present there.
Asking Mehra and Lekhi to bring down their pitch, Justice Najmi Waziri said the ASG will have to make out a case for himself to argue the matter and listed it for January 17.
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Kejriwal and Sisodia, who have been summoned as accused in the assault case, have also challenged the order permitting two other advocates to conduct the prosecution on behalf of the officer of the Delhi Police, instead of a regular public prosecutor attached to the court concerned.
The trial court had on October 22 allowed the plea of Prakash seeking direction to conduct the prosecution through the counsel nominated by the Delhi Police and not through lawyers empanelled by the AAP government.
Senior advocate N Hariharan, appearing for Kejriwal, said a special public prosecutor (SPP) can be appointed under Section 302 of CrPC but there has to be special circumstances for it and there was nothing special here.
He said 10 other cases were pending against the chief minister before the same trial court judge and they were being tried by the regular cadre public prosecutor in which the complainant was either state or government officials.
"There was no allegation of suspected bias in any of the cases. There was nothing special in this case," the senior counsel argued.
When Lekhi sought to make a submission regarding the petition, Mehra objected and said he will not allow him to say anything and he has in his favour the order of the Delhi High Court according to which the LG has to act on the aid and advice of the Council of Ministers while exercising the power to appoint a SPP for any case.
This portion of the high court verdict was challenged by the Centre before the Supreme Court which has reserved its judgement on it.
"Is aid and advice of council of ministers taken? It's a direct contempt of the orders of the Supreme Court and the high court," Mehra contended, adding that he would file a contempt case against the police officials who were briefing the ASG in the matter.
The criminal case relates to alleged assault on Prakash during a meeting at Kejriwal's official residence on February 19.
Prakash was recently transferred and will now be the Additional Secretary in the Department of Telecom.
The plea in the high court has sought setting aside of the order of Additional Chief Metropolitan Magistrate (ACMM) and also requested that the prosecution in the case be conducted by the public prosecutor before the trial court.
"The impugned order is otherwise based on conjunctures and surmises and is liable to be set aside," the petition claimed.
The plea has arrayed as parties the Delhi government through standing counsel (the Delhi Police) and Anshu Prakash.
In its October 22 order, the trial court had also asked the investigating agency to supply the copies of charge sheet and documents to the officer appointed so that he could conduct the prosecution.
"Further, Siddharth Aggarwal and V Madhukar, advocates, are permitted to conduct the prosecution on behalf of the officer of Delhi Police so appointed in this regard," it had said.
The ACMM had said let the Delhi Police Commissioner assign the prosecution of this case to some officer not below the rank of Additional Commissioner of Police.
Prakash had told the trial court that the Delhi Police had nominated three well-reputed and experienced counsel for appointment as Special Public Prosecutors and their consents had also been obtained.
Despite recommendation by the officers of the Home Department, the request of the Delhi Police was rejected by the Delhi Home Minister on grounds that the case did not disclose any special features, he had said.
The plea was opposed by the Delhi Police in the trial court claiming that the complainant (Prakash) has not shown any "actual bias" but only an unfounded apprehension of bias and the other cases of similar accused persons have been conducted regular prosecutors and no bias has been reported.
On October 25, Kejriwal, Sisodia and nine other AAP MLAs were granted bail by the trial court in the assault case.
The other two MLAs, Amanatullah Khan and Prakash Jarwal, who are also accused were earlier arrested in the case and granted bail by the high court.
The alleged assault had triggered a bitter tussle between the Delhi government and its bureaucrats.
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