BREAKING | Supreme Court Reserves Judgment On Delhi CM Arvind Kejriwal's Petition Challenging ED Arrest

The Supreme Court on Friday (May 17) reserved judgment on the petition filed by Delhi Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA) in connection with the Delhi liquor policy case.

A bench of Justices Sanjiv Khanna and Dipankar Datta, which allowed Kejriwal's interim release till June 1 last week, asked the ED to submit the case files. "We want to see the statements [of witnesses recorded] after Manish Sisodia [after the delivery of the judgment denying bail to Sisodia] and before Kejriwal's arrest," Justice Khanna told Additional Solicitor General SV Raju.

The bench also clarified that Kejriwal will be entitled to move the trial court for bail notwithstanding the fact that the Supreme Court has reserved judgment and without prejudice to the contentions of the parties.

In the hearing today, when the ASG said that there was evidence of money being sent to the Aam Aadmi Party (AAP) through hawala channels, the bench asked if these were mentioned in the "reasons to believe" recorded in writing for the arrest.

"We have not given in reasons to believe," ASG said. When the bench expressed surprise, the ASG said these aspects need not be stated in the "reasons to believe".

"How can you not give reasons to believe? How will he challenge those reasons?," Justice Khanna asked. The ASG replied that the Investigating Officer need not give these materials. Justice Khanna negated the contention, referring to the recent judgment in the Prabir Purkayastha case.

The ASG said that if the materials are supplied to the accused prior to arrest, it might hamper the investigation. At this point, Justice Khanna pointed out that Section 19 of the PMLA (dealing with the power of arrest), uses the word "guilty". That means, the investigating officer must have reasons to believe based on the materials in possession that the accused is guilty. On the other hand, the provision for bail in Section 45 PMLA says that the Court must be prima facie satisfied that the person is not guilty. 

"Suppose they did not use 'not guilty' in S.19, everybody would have been arrested. Therefore, 'guilty' had to be used in S.19. And 'not guilty' in S.45," he said. "Normally IO should never arrest till he has sufficient material to show 'guilty'. That should be the standard," the judge added.

When the ASG said that 'suspicion' is the standard for the IO to arrest, the bench appeared unconvinced. "Can we change the mandate of the statute? You are saying read "reasons to believe" as "reasonably suspects"," Justice Datta remarked. ASG however repeated his argument from yesterday that the Court's interference with the arrest can be made only in a case of "no material" and the adequacy of the materials cannot be judicially scrutinized at the stage of investigation.

The ASG also clarified that the ED was filing a prosecution complaint today making AAP an accused in the case.

Exculpatory statements ignored

In rejoinder, Senior Advocate Dr Abhishek Manu Singhvi said that the ED officers gave weight to one inculpatory statement while ignoring nine exculpatory statements of witnesses.

When the bench probed Singhvi regarding ED's claim of evidence regarding hawala transactions to AAP, Singhvi claimed that nothing was mentioned in the grounds of arrest. "There is no iota of material in grounds of arrest", he asserted.

The senior counsel questioned the allegation that Kejriwal demanded bribe by stating that in that event, he should be named as an accused in the predicate offence under the Prevention of Corruption Act. "Over 1.5 years, they conducted investigation. No action against Kejriwal. There was no necessity to arrest based on material that was there with ED in July-August 2023," Singhvi submitted.

When the Solicitor General Tushar Mehta sought to urge that ED has unearthed personal chats between Kejriwal and hawala operators, Singhvi took objection saying that such submissions were being made on the final date to prejudice the Court.

He also attacked the credibility of the witnesses who gave statements against Kejriwal by recounting that witness-P Sarath Reddy made electoral bonds donations to the BJP and got bail. Regarding Kejriwal's alleged association with accused Vijay Nair, Singhvi said, "He is an IT consultant. He used guestroom frequently. Not a statement recorded about excise policy. ED is presuming Vijay Nair reported to me. Grounds of arrest are 'close associate'". However, the bench said that it will not go into these aspects.

Singhvi also pleaded that the legality of the arrest must be determined based on the materials prior to the arrest.

It may be recalled that yesterday, the bench had extensively heard arguments on behalf of ED. During the proceedings, some pertinent observations were made and questions posed to ED counsel Additional Solicitor General SV Raju as well as Solicitor General Tushar Mehta.

As the arguments did not conclude, the matter was listed today to enable the ASG to complete his submissions and Sr Adv Dr AM Singhvi to place his rejoinder. A report on yesterday's proceedings can be read here. 

Background

It may be recalled that Kejriwal was arrested by the Enforcement Directorate on March 21, after the Delhi High Court refused to grant him interim protection earlier in the day. He remained in custody thereafter, until he was granted benefit of interim release by the Supreme Court on May 10. The same will expire on June 2 and is subject to other conditions, including that he shall not attend CM office and/or sign official files (unless necessitated by LG).

While directing Kejriwal's release from custody, to enable him to campaign for the Lok Sabha elections, the top Court had observed that it was dealing with the case of an elected Chief Minister, not a habitual offender, and the general elections take place only once in 5 years.

It further questioned ED's timing of arrest, noting that the ECIR was registered in August, 2022, but Kejriwal came to be arrested about 1.5 years later (before elections).

The bench dispelled ED's contention regarding the interim bail (on account of elections) amounting to special treatment for politicians. It asserted that in every case, the peculiar facts and circumstances have to be seen and noted that Kejriwal had neither been convicted, nor was he a threat to society.

Notably, while it heard the parties on the question of interim relief, the bench had indicated that it would try to conclude arguments in the matter before summer break.

Case Title: Arvind Kejriwal v. Directorate of Enforcement, Crl.A. No. 2493/2024