SC to consider interim bail to Kejriwal due to LS polls, puts ED to notice

In a ray of hope to Chief Minister Arvind Kejriwal after 43 days of his arrest in the excise policy-linked money laundering case, the Supreme Court on Friday told the Enforcement Directorate to be ready with the case as it may consider hearing arguments on his interim bail on May 7 on account of Lok Sabha polls in Delhi.

Kejriwal was arrested on March 21 and is currently lodged in Tihar jail under judicial custody.

A bench of justices Sanjiv Khanna and Dipankar Datta told Additional Solicitor General SV Raju, appearing for the Enforcement Directorate (ED), that the hearing on Kejriwal’s plea against arrest is likely to take time and therefore, the court was considering hearing the probe agency on interim bail to him.

”It appears we can’t complete today. We will post it on Tuesday morning itself. Mr Raju, one more thing. If it is going to take time and it does appear to us that it may take some time, we will then consider the question of interim bail because of the elections,” the bench told Raju, who was wrapping up his argument for the day. Raju submitted that he will oppose the bail to Kejriwal and pointed out that to the statements made by Aam Aadmi Party (AAP) leader Sanjay Singh after getting bail last month in the case. ”Just, look at the kind of statements he is making,” he said. The bench said it is putting the agency on notice about the court’s intention, so that it is not taken by surprise on May 7, when the interim bail issue will be dealt.

”We are not commenting on it either way. We are just saying we will hear on interim bail and not saying we will grant interim bail. We may or may not grant interim bail,” the bench said. It also told senior advocate Abhishek Singhvi, appearing for Kejriwal, ”Just one thing more. Please also take instructions. Because of the position he holds, whether he should be signing official files?”

During the hearing, Singhvi informed the bench that on March 16 the elections were announced and on March 21, Kejriwal was arrested by the ED on the basis of statements and materials which were available with the agency since last July. The bench asked Singhvi when are the elections scheduled in Delhi to which he replied that on May 23 the campaigning will come to an end in the national capital and on May 25 the polling will be held. The top court was also critical of Singhvi’s arguments that AAP being a political party will not be covered under section 70 of the Prevention of Money Laundering Act (PMLA), which deals with offences by companies.

”Anything done by a political party cannot be attributed to its President, Convenor or General Secretary, else it will be a case of vicarious liability. A political party is out of the section 70 of the PMLA,” he submitted, adding that the provision only deals with companies. The senior lawyer further said that a political party is not a partnership, private corporate firm or a society but an entity which is registered under the Representation of the People Act.

The bench said, ”It is difficult to accept your arguments. AAP is a juristic person and cannot be arrested. It can be impleaded as accused. Person in-charge can be prosecuted along with the juristic person under section 70 of the PMLA. Will the society not be covered under section 70. Anyways, we have noted your arguments and will deal with it.” Singhvi said that there is no direct evidence of Kejriwal receiving kickback and if at all he has, then the case will fall under the Prevention of Corruption Act and not the PMLA. He added that all the materials the ED has, were covered in the bail case of former Deputy Chief Minister Manish Sisodia and the court has said that no case is made out based on them. The top court also posed several queries to ED including on why nine exculpatory statements of witnesses were not mentioned in the ground of arrest of Kejriwal and why only inculpatory statements were mentioned. Raju replied that the investigating officer, though having considered all the materials before him, is required to only mention the relevant material which make him believe that the accused has committed the offence. ”I have considered all the materials but I need to mention only the relevant material and not irrelevant materials. The statements which are exculpatory are irrelevant material and if the investigation officer is to record all the materials before it, then the record will be voluminous and he will not be able to file the chargesheet in 60 days,” Raju submitted. However, the bench did not agree with the submissions and said that the scheme of the law and the 2022 verdict in Vijay Madanlal Choudhury has kept section 19 at higher pedestal and therefore, entire material should be before the court at the time of his arrest.

Section 19 of the PMLA empowers the ED to arrest persons based on the material in its possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law. The top court issued the ED a notice on April 15 and sought its response to Kejriwal’s plea.

On April 9, the high court upheld Kejriwal’s arrest, saying there was no illegality and the ED was left with ”little option” after he skipped repeated summonses and refused to join the investigation.

The matter pertains to alleged corruption and money laundering in the formulation and execution of the Delhi government’s now-scrapped excise policy for 2021-22.