Arvind Kejriwal Bail : Supreme Court Says HC Reserving Order On ED's Stay Application 'Unusual', Says Stay Orders Normally Passed On Spot

At the commencement of today's hearing, Senior advocate Dr Abhishek Manu Singvhi, for Kejriwal, submitted that the procedure of staying the bail on the first day is unprecedented. Secondly, he said that the balance of convenience was in the petitioner's favour.

"Supposes the HC dismisses ED's appeal, how does the learned judge compensate for the time he(Kejriwal) lost?," he added. 

When Justice Misra said that the High Court's order is likely to come shortly, Singhvi countered: "Why cannot I be free in the interim. I am not a flight risk and there is judgment in my favor."

Notwithstanding, the Court stressed that if any order is passed, it will amount to "pre-judging the issue," especially given that the order was passed by the High Court. 

Following his senior Advocate, Vikram Chaudhary referred to the Supreme Court's order dated May 10, granting Kejriwal interim bail. He highlighted the Supreme Court's observations in the May 10 order that Kejriwal was Delhi CM, has no criminal antecedents, was no threat to the society, that the investigation has been pending since August 2022 and he was arrested only in March 2024.

Supplementing this, Singhvi said that several Supreme Court judgments were cited, observing that bail, once granted, cannot be stayed without special reasons.

Chaudhari and Singhvi also took objection to the High Court passing an oral order at 10.30 AM itself to halt the bail order as soon as the ED mentioned their petition. They underscored that the ED's petition was filed even before the bail order was uploaded and the High Court allowed the urgent listing the same day itself.

At this, Justice Misra asked if the twin conditions of bail in Sec 45 PMLA had been recorded in the bail order. Additional Solicitor General SV Raju replied in negative. In this context, Solicitor General Tushar Mehta added: "The Hon'ble Court was a vacation judge for two days. To form the satisfaction, the Court has to go through the record of the case. The Court starts by saying it is a "high profile" case. The Court records in the order "who has the time to go through the record of the case?"

However, when Justice Misra suggested for the listing of the matter after the order is pronounced by the High Court, Singhvi categorically argued "If the HC can stay it without seeing the order, why can't your lordships stay the HC order."

In response, Justice Misra said, "If, according to you, the High Court has committed a mistake, why should we repeat it at our end?"

Ultimately, the Court listed the matter the day after tomorrow without making any observations on its merits. The order, as pronounced in the Court, read as follows:

"The order impugned in this SLP is an order by which, after hearing the counsel of the parties, the order was reserved on the stay application, and till that, the operation of the bail order stayed. A perusal of the stay order would reveal that the parties were given the opportunity to file a short submission by June 24, 2024....ASG submits that the order on the stay application would be passed shortly and it would be appropriate if this Court adjourns the matter so that there is an opportunity to see the order."

On June 20, the trial judge had granted Kejriwal bail in the money laundering case after forming a prima facie opinion that he is not guilty of the office. The next day, the Enforcement Directorate moved an urgent petition in the Delhi High Court challenging the bail order. A single judge of the High Court heard the matter the same day. After hearing both the sides extensively, the single bench reserved orders on the ED's application to stay the bail order. The High Court also ordered that till the pronouncement of the order, the operation of the bail order will stand stayed.

Before the High Court, Additional Solicitor General SV Raju contended that the bail order was "perverse" as it was contrary to the mandate of Section 45 of the Prevention of Money Laundering Act. The ASG also argued that the trial judge did not give the ED "full opportunity" to present the case and insisted that they should be brief in their arguments. He complained that though new points were argued by Kejriwal's lawyers in rejoinder, the ED was denied the opportunity to rebut them.

Per Contra, Senior advocate Dr Abhishek Manu Singvhi, for Kejriwal, submitted that the hearing lasted for five hours, out of which ED took 3.45 hours. Based on this, he asked where the ED was denied the opportunity to present its case. Stressing that a stay of the bail order would amount to a cancellation of the bail, Singhvi urged that such a prayer cannot be granted at the mere asking.

It may be noted that the bail order by Vacation Judge Niyay Bindu of Rouse Avenue Court contained scathing observations against the ED. The judge went to the extent of drawing an inference that the ED was acting with bias against Kejriwal. The order further held that the ED had not shown any direct evidence regarding the proceeds of the crime.

Kejriwal was arrested by the Enforcement Directorate (ED) on March 21. In May, he was granted interim bail by the Supreme Court till June 01 in view of general elections. He surrendered on June 2.

Case Details: Arvind Kejriwal v. Enforcement Directorate | Diary No.27685/2024

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