Supreme Court defers order on Delhi CM Arvind Kejriwal’s interim bail plea

The hearing has concluded. The matter is to be heard next either on May 9 or the following week. 

Justice Khanna says the matter may tentatively be listed the day after tomorrow. “Next week would be tough as it is the last before the court before summer vacations”, he says. 

Addressing the ED’s argument that exceptions should not be made for politicians, Justice Khanna says – 

“We are not saying politicians form a different class or have to be treated differently. Every person would have their own individual, exceptional circumstances.”

The Court clarifies that it is only considering whether interim relief needs to be given on account of the elections.

Justice Khanna says on the question of interim bail on account of elections, the Bench has heard arguments on both sides. We will pass an order. 

“At 2 pm, we will continue to hear Raju (on the question of the legality of arrest and remand”, the judge says. 

Opposing the grant of any interim bail, SG Mehta says – 

“Your Lordships are the protectors of the fundamental rights of everyone. From the barber to the mazdoor to everyone. Please do not consider any interim relief.” 

“A politician in jail will have to do without the privileges of office or legislature. He does not hold any portfolio. A Minister without a portfolio is not an honourable one. How did this case arise... People were called to his residence”, he argues. 

Outlining the conditions the Court will consider imposing if the Delhi CM is granted bail, the judge says – 

“We do not want any interference in the working of the government in any way”, Justice Khanna says. 

“We thought or are considering giving you interim bail because of elections. Otherwise, we would have heard arguments, reserved the judgment and pronounced it after vacations” Justice Datta tells Kejriwal’s lawyer. 

Then rather Your Lordships passing an order, I will make a statement I will not sign any files, Mr. Singhvi says. 

Justice Khanna says assuming Kejriwal gets interim bail on the grounds of elections, it will be wrong for him to exercise his official duties such as signing files and giving orders.

“Such a development may have a cascading effect”, the judge says. 

“If we give you interim bail, we are clear we do not want you to perform your official duties”, Justice Khanna underscores. 

Appearing for the Delhi CM, senior advocate Abhishek Manu Singhvi says – 

“Is the CM a hardened criminal or a terrorist? By giving interim bail, would the Court enhance the threat to society? If I do not give a reply to the summons, does it become a basis for my arrest?

Justice Khanna sums up the ED’s objections to the possibility of interim bail:

1. There cannot be a differentiation between ordinary people and Chief Ministers. 

2. Kejriwal evaded summons nine times in six months.

3. There is evidence to show Kejriwal’s involvement. 

4. He can go to the trial court for bail. 

Responding to this contention, Justice Khanna says – “While granting interim bail, we examine whether there will be any misuse or if the person is a hardened criminal. That is not the case here.” 

SG Mehta urges the Court to not make any exception for the Delhi CM. He says that interim bail to Kejriwal will send a wrong message to the common man. He points out that the Delhi CM evaded summons nine times in six months. 

Kejriwal’s argument that “heavens would fall if he does not get a chance to campaign” is wrong, he says. 

Justice Khanna points out that Kejriwal is the elected Chief Minister of Delhi and that he is not a habitual criminal. He asserts that these are “extraordinary circumstances” and that general elections are held once in 5 years. 

Registering his protest, SG Mehta says – “What example are we setting? Are other people less important than the CM....Are we carving out exceptions for politicians? Would campaigning for elections be more important?”. He says there are 5000-odd MPs and MLAs in jail and that the message must not go that all are equal but some are more equal.

Justice Khanna says – “We certainly do not want criminal politicians to be treated separately”.

Justice Khanna says that from 12:30 pm, the Court will consider the question of interim bail. 

In response, ASG Raju says – “...then I am handicapped, they have argued fully”. 

Justice Khanna explains that Kejriwal’s defence was focussed on the circumstances of his arrest as getting bail would be hard under the PMLA. He points out that under Section 19 of the PMLA, the onus is on the agency to show reasonable basis and material to prove an accused person’s guilt. Whereas, under Section 45 (bail under PMLA), the burden shifts to the accused to prima facie convince a Court that he is innocent.

Justice Dipankar Datta points out that the decision to arrest a person under ​Section 19 of the PMLA​ is an executive act. 

“Has the probe officer considered both material for and against him before proceeding to arrest?”, the judge asks. 

Addressing the ED, he says – “By arrest you are taking away his right under Article 21 of the Constitution.”

However, ASG Raju differs. He says an investigating officer can consider material both for and against an accused, but his ‘reasons to believe’ under ​Section 19 of the PMLA​ that an accused is guilty and deserves to be arrested need not include everything that he has considered.

Solicitor General (SG) Tushar Mehta intervenes and says that this kind of a “mini-trial” cannot be allowed to happen on the basis of a writ petition filed by Kejriwal challenging his arrest and remand. He says what is being argued here should be argued by the Delhi CM while seeing bail before the trial court.

Justice Khanna says the answer given by Kejriwal to that was simple. The onus is on the ED to prove Kejriwal is guilty at the time of remand. For bail, the onus is on Kejriwal to prove his innocence.

Justice Khanna asks whether statements made under Section 50 of the PMLA by the accused after arrest (by the CBI) are admissible

ASG Raju replies that non-confessional statements made after arrest are admissible. 

Pointing out that Section 19 of the PMLA envisages a higher threshold for arrest, Justice Khanna says – “Standard for arrest, material for arrest under Section 19 of the PMLA is higher”. 

Justice Khanna says the grounds of arrest and the ‘reasons to believe’ in Section 19 that a person is guilty of offences under the PMLA requiring his arrest have to be the same. 

“....reasons to believe have to be far more elaborate than the grounds of arrest. You have to struggle on that a bit”, the judge adds. 

• Section 19 of the PMLA requires the investigating officer to have “reasons to believe” from “materials in possession” that the person intended to be arrested is “guilty of the offence”. Mere suspicion of guilt is not enough for arrest. The officer should have material/evidence to prove his guilt. This criteria has to be objectively evaluated by the ED officer before going ahead with the arrest. 

Justice Khanna emphasises that the ED should be on the front foot and that the onus was on the agency to justify Kejriwal’s arrest. 

“Your defence is the initial statement did not concern Kejriwal, so his name did not appear in them”, the judge says addressing ASG Raju. 

In response, the ASG says that the investigation could take circuitous routes. 

“Witnesses could mislead or cover-up. It is the duty of the probe officer to unearth the truth. It may take time”, he adds. 

When did you raise Arvind Kejriwal’s name for the first time? Justice Khanna asks ED. 

ASG Raju says it was in Guchi Babu’s statement on February 23, 2023 with regarding the payment of the bribe. He says that Kejriwal’s name was first referred to by C. Arvind in 2022. 

Justice Khanna asks why it took the investigating officer so long – two years – to ask the relevant questions. The Court says it does not show well for an investigating agency to take two years to unearth alleged links. 

ASG SV Raju says there is enough evidence that Kejriwal stayed in a seven-star hotel called Grand Hyatt in Goa during the Goa Assembly elections. He points out that a part of his bills were paid by the General Administrative Department of the Delhi government and a part was financed through Chanpreet Singh. 

“It is not a politically motivated case...There is not a single statement exonerating Kejriwal”, he adds. 

ASG Raju says that the ED did not have any reason to blame anybody at that time and thus could not have straightaway put the question of kickbacks to the co-accused persons during questioning. 

Justice Khanna says – “f you don’t put the question, then it is your issue.”

The judges say that they want to view the case files of this case. Asks the ED to produce the officer notings. 

ASG Raju is taking the Bench through co-accused turned approver Sarath Chandra Reddy’s statements. 

He explains the initial statements of witnesses did not contain anything about Kejriwal as the ED was slowly building up the case at that point in time. 

In the previous hearing, senior advocate Abhishek Manu Singhvi appearing for the Delhi CM pointed out that none of the earlier statements of the accused persons had named Mr. Kejriwal and that these were suppressed by the agency.

Justice Khanna asks what is the date of arrest of the first person from the government’s side in this case? 

ASG Raju responds by saying March 9, 2020. 

ASG SV Raju is taking the Bench through the witness statements. He says that contrary to what was alleged by Mr. Kejriwal’s counsel, there are no contradictions in the statements. 

Referring to this contention, the Court asks how ₹100 crore of bribe money suddenly becomes ₹ 1100 crore. 

‘That is a phenomenal rate of returns,’ Justice Khanna tells ASG SV Raju. 

ASG SV Raju says the initial statements did not have Kejriwal’s name as the probe at the time was not on him. 

[Contending that Mr. Kejriwal was the “kingpin and key conspirator” of the scam, the central agency in its remand application said that the excise policy was drafted “considering the favours to be granted to the South Group” — a group of influential persons from South India who purportedly secured undue favours to establish wholesale businesses and ​paid the political party 100 crore in return​.] 

ASG SV Raju is taking the Bench through a note detailing instances of digital evidence being destroyed and alleged cash transactions of Rs 100 crore through Hawala operators.

He says that following the Supreme Court’s judgment denying bail to former Deputy CM Manish Sisodia, assets worth Rs 100 crore were attached by the ED. 

A Bench of Justices Sanjiv Khanna and Dipankar Datta has begun hearing the Delhi Chief Minister’s plea against his arrest by the ED and subsequent remand into judicial custody. 

Additional Solicitor General (ASG) S.V. Raju will continue the ED’s counter arguments today. Senior advocate Abhishek Manu Singhvi is representing the AAP supremo. 

The Central agency said that the arrest of Mr. Kejriwal was based on material evidence which indicated that the Chief Minister was guilty of money laundering. “A differential treatment in favour of a politician who is guilty of the offence of money laundering would violate the rule of law, which would be a violation of the basic structure of the Constitution,” the ED noted.

Read more here.

Arrest of criminal politicians does not affect free elections: ED

Enforcement Directorate defends arrest of Delhi Chief Minister Arvind Kejriwal, denies political motives amid election accusations.

Read The Hindu’s live coverage of the proceedings here. 

Arvind Kejriwal arrest hearing LIVE updates | SC says it may consider interim bail for Kejriwal on account of polls, next hearing on May 7

Arvind Kejriwal arrest hearing LIVE updates | The top Court says it may consider interim bail for Kejriwal on account of polls, next hearing on May 7

With the Delhi Chief Minister in jail, how is the administration carrying out its tasks? 

Read The Hindu’s detailed explainer here. 

How is Arvind Kejriwal functioning from Tihar Jail? | Explained

Delhi CM Arvind Kejriwal's arrest leads to administrative deadlock, legal debates, and potential President's Rule in the capital.

Delhi Lt Governor V K Saxena has recommended an NIA probe against Chief Minister Arvind Kejriwal for allegedly receiving political funding from the banned terrorist organisation ‘Sikhs for Justice’, Raj Niwas sources said on May 6.

In a letter to the Union Home secretary, the Lt. Governor’s secretariat said Mr. Saxena had received a complaint that the Kejriwal-led AAP allegedly received $16 million funding from extremist Khalistani groups for facilitating the release of Devendra Pal Bhullar.

“The electronic evidences adduced by the complainant requires investigation including forensic examination,” Mr. Saxena has said. The complaint is made against a chief minister and relates to political funding received from a banned terrorist organisation, the letter stated.

The case arose from a report submitted by Delhi Chief Secretary Naresh Kumar to Lieutenant Governor (LG) Vinai Kumar Saxena in July 2022 alleging that there were procedural lapses in the formulation of the Delhi Excise Policy 2021-22, which came into force in November 2021 but was later scrapped in July 2022. 

The Chief Secretary alleged that kickbacks received by the Aam Admi Party (AAP) leaders from operators of alcohol businesses for preferential treatment were used to “influence” the 2022 Assembly elections in Punjab and Goa. Subsequently, the ED claimed that the scam involved giving wholesale liquor businesses to private entities with a fixed margin of 12% for a 6% kickback.

The legal issues surrounding Arvind Kejriwal’s arrest | Explained

Arvind Kejriwal arrest: The Hindu explores the legal issues surrounding the arrest of Delhi CM Arvind Kejriwal by the ED, including what legal contentions have been raised during the proceedings and what do judicial precedents say?

The Enforcement Directorate (ED) told the High Court on April 2 that Chief Minister Arvind Kejriwal is the “kingpin” and the “key conspirator” in the excise policy case and that, based on the material evidence in the agency’s possession, there are “reasons to believe” that Mr. Kejriwal is also guilty of money laundering.

The Supreme Court on April 30 said the Directorate of Enforcement (ED) would have to justify the timing of the arrest of Delhi Chief Minister Arvind Kejriwal in the excise policy case on March 21, barely a week after the Model Code of Conduct for the Lok Sabha election came into force.

A Bench of Justices Sanjiv Khanna and Dipankar Datta wound up the second consecutive day of hearings in a petition filed by Mr. Kejriwal, on his fifth furlough of remand till May 7, with a parting shot at the Central agency.