Surviving Judicial Scrutiny

On 27 February 2026, a Special Court at Rouse Avenue in New Delhi discharged all 23 accused in the CBI’s prosecution concerning the Delhi Excise Policy. The list included former Chief Minister Arvind Kejriwal, former Deputy Chief Minister Manish Sisodia, and BRS leader K. Kavitha. The decision arrived after years of investigation, high-profile arrests, and extended pre-trial incarceration.

Yet the court concluded that the case did not warrant even the framing of charges. The distinction between discharge and acquittal is neither semantic nor technical. It goes to the heart of how criminal law functions. An acquittal follows trial. Evidence is examined, witnesses are cross-examined, and the prosecution’s case is tested against the standard of proof beyond reasonable doubt. A discharge, by contrast, is a threshold determination. It is governed by Sections 227 and 239 of the Code of Criminal Procedure, 1973, which require the court to assess whether the material placed on record discloses sufficient grounds to proceed. The standard is low. The court does not weigh evidence meticulously. It asks whether, assuming the prosecution’s material to be true, a case is made out. In this instance, the court answered that question in the negative.

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The Legal Standard at the Stage of Charge:

The jurisprudence governing discharge is well settled. In State of Bihar v. Ramesh Singh (1977), the Supreme Court held that at the stage of framing charges, the court need only determine whether there is a strong suspicion that the accused has committed an offence. The evaluation is preliminary and not a mini-trial. Later, in Union of India v. Prafulla Kumar Samal (1979), the Court clarified that while the judge may sift and weigh the evidence for a limited purpose, the court must not conduct a roving inquiry into the merits. More recently, in Sajjan Kumar v. CBI (2010), the Supreme Court reiterated that if the material on record gives rise to grave suspicion against the accused, charges must be framed. The threshold is deliberately modest because the detailed assessment is reserved for trial. It is against this doctrinal backdrop that the discharge of Kejriwal and Sisodia assumes significance. If even a prima facie case cannot be discerned, the implication is that the prosecution’s material failed to generate the “grave suspicion” contemplated in precedent. According to reports of the order, the Special Court found no overarching criminal conspiracy and no concrete evidence establishing criminal intent in the formulation or imple – mentation of the policy. It also noted inconsistencies within the chargesheet and found that certain assertions were not supported by witness testimony. Particularly in relation to Sisodia, the court is understood to have observed the absence of evidence linking him directly to unlawful gain or procedural manipulation. The court also appears to have been unpersuaded by the prosecution’s reliance on the statement of an approver without adequate corroboration. Indian courts have historically treated accomplice testimony with caution. Section 133 of the Indian Evidence Act permits conviction on the uncorroborated testimony of an accomplice, but Illustration (b) to Section 114 reflects a rule of prudence requiring corroboration. In politically sensitive cases, courts have tended to apply that prudence rigorously.

A Pattern in High-Profile Prosecutions:

The discharge order in the Delhi excise matter is not without precedent. Indian criminal history contains several instances where high-profile prosecutions faltered at preliminary stages or collapsed before full adjudication. One prominent example is the disproportionate assets case against Mayawati. In 2012, the Supreme Court set aside proceedings initiated by the CBI, holding that the agency had exceeded the scope of the reference under which it was directed to investigate. The ruling underscored that even investigative enthusiasm must operate within defined legal boundaries. Similarly, in the 2G spectrum allocation case, although not discharged at the threshold stage, all accused, including senior political figures such as A. Raja, were acquitted by the Special CBI Court in 2017 after trial. The court found that the prosecution had failed to establish its allegations with reliable evidence. While that case proceeded to trial, it revealed the risks inherent in prosecutions driven by expansive narratives that struggle to translate into admissible proof. In the entertainment industry, the criminal proceedings arising from the death of actor Sushant Singh Rajput led to multiple investigative angles, including allegations under the Narcotic Drugs and Psychotropic Substances Act. Several accused persons were granted relief at early stages due to insufficient material linking them to specific offences. Though factually distinct, these episodes illustrate a recurring pattern: high public intensity, prolonged investigation, and judicial insistence on evidentiary discipline. These cases do not suggest systemic collapse. They do, however, highlight a recurring tension between investigative ambition and judicial scrutiny.

Arrest, Custody, and the Cost of Process:

One of the most disquieting aspects of the Delhi excise case is the duration of pre-trial custody. Sisodia spent approximately 530 days incarcerated before securing bail. Kejriwal was in custody for about 156 days before the Supreme Court of India granted relief in September 2024. Bail jurisprudence in India has evolved significantly in recent years, with the Supreme Court repeatedly affirming that “bail is the rule and jail the exception.” In Satender Kumar Antil v. CBI (2022), the Court emphasised the need to prevent routine arrests and prolonged detention in cases where investigation can proceed without custody. Yet the lived reality often diverges from principle. In complex financial or corruption cases, courts tend to adopt a cautious approach to bail. When such cases subsequently fail to cross even the prima facie threshold, questions inevitably arise regarding proportionality. The criminal processor itself becomes punitive. Discharge, though legally justified where material is insufficient, does not remedy the time already spent in detention. Nor does it erase reputational consequences. The power to arrest and prosecute carries with it an obligation of restraint.

Institutional Credibility and Political Context:

The Central Bureau of Investigation occupies a distinctive position within India’s law enforcement architecture. Though formally insulated by statutory and judicial safeguards, it functions under the administrative control of the Union government. This structural reality has long fueled debate about its deployment in politically sensitive matters. The Supreme Court’s description of the agency as a “caged parrot” in Vineet Narain v. Union of India (1998) continues to resonate in public discourse. The discharge in the Delhi excise case will inevitably be read through this lens. The investigation originated amid intense political contestation between the Aam Aadmi Party and the Bharatiya Janata Party. The Indian National Congress, too, had at the time pressed for central intervention and supported calls for an investigation into the policy. The entry of the Enforcement Directorate added another layer of complexity, given the agency’s expansive powers under the Prevention of Money Laundering Act. Whether or not political motivation can be established is a separate question. Courts adjudicate on evidence, not on political narratives. However, when a prosecution involving senior elected officials collapses at the stage of charge framing, it amplifies existing scepticism about selective enforcement. It bears emphasis that the matter is not closed. The CBI has challenged the discharge before the Delhi High Court. The High Court may examine the record differently and conclude that the threshold for framing charges has indeed been met. Appellate review is an integral part of criminal procedure. Nonetheless, the fact that a trial court found the evidentiary foundation insufficient is consequential. It underscores that investigative volume does not equate to evidentiary strength. Lengthy chargesheets a n d expansive allegations must still satisfy the elementary requirement of coherence and substantiation.

The Larger Lesson:

Criminal prosecution is among the most coercive powers exercised by the State. It entails arrest, detention, public censure, and prolonged uncertainty. The legitimacy of this power depends on disciplined adherence t o evidentiary standards. The threshold at the stage of framing charges is intentionally modest to avoids premature termination of potentially valid prosecutions. When a case fails even at that stage, it signals a structural weakness in the prosecutorial foundation. For Kejriwal and Sisodia, the discharge offers immediate relief, though subject to appellate scrutiny. For the investigative apparatus, it presents a moment of reflection. The rule of law is not measured solely by the capacity to prosecute, but by the willingness to accept judicial correction when prosecution falls short. If the High Court upholds the discharge, the episode will join a line of cases in which the judiciary has intervened to prevent a trial from proceeding without adequate basis. If it reverses the order, the prosecution will have another opportunity to test its allegations in open court. Either way, the case reaffirms a principle that lies at the core of criminal justice: suspicion, however grave, must be anchored in demonstrable evidence. Without that anchor, even the most high-profile case cannot survive judicial scrutiny.

(THE WRITER IS AN AUTHOR, LEGAL COMMENTATOR AND EDITOR-INCHIEF OF INDIACOMMENTARY.COM)