He Is An Elected CM, Not Habitual Offender; Elections Held Once In 5 Yrs: Supreme Court On ED's Objection To Interim Bail For Arvind Kejriwal

While hearing Arvind Kejriwal's plea challenging his arrest by the Enforcement Directorate (ED) on March 21 in the Delhi Liquor Policy case, the Supreme Court today said that it cannot treat the Delhi Chief Minister as a habitual offender.

The bench of Justices Sanjiv Khanna and Dipankar Datta was considering the issue of granting Kejriwal interim bail when it expressed disapproval with Solicitor General Tushar Mehta's comparison of his case with those of others languishing in jails.

It was Mehta's case that politicians could not be treated as a class apart. He said if Kejriwal is granted interim bail for elections, why shouldn't jailed farmers be released during harvesting season.

However, the bench made it clear that it was in no way carving out a separate legal position for a political leader; rather, it was looking at the issue from a larger perspective, particularly as Lok Sabha elections are held only once in 5 years.

"Look, there are 2-3 issues...one is, he is elected Chief Minister of Delhi. The elections are around the corner. These are extraordinary situations. He is not otherwise a habitual offender...or somebody who has been involved in many other cases...And elections are held once in 5 years. It's not like harvesting season every 6 months. We don't appreciate this."

It may be recalled that on the last date, the court had expressed that it might consider the question of interim bail for the purposes of Lok Sabha Elections if the hearing gets delayed. Today, arguments were heard on the aspect and the matter tentatively posted day after tomorrow (ie May 9). If it is not taken on that day, Justice Khanna clarified, the hearing will be pushed to next week.

The hearing saw Additional Solicitor General SV Raju make submissions on behalf of ED. The same were supplemented in part by SG Mehta and countered by Senior Advocate Dr. AM Singhvi (for Kejriwal). For about an hour, the counsels cumulatively addressed the court on the question of interim bail to Kejriwal.

A brief account of the proceedings is given below.

Questions about Kejriwal were not put to witnesses during initial investigation : ASG Raju

For a substantial part of the hearing, ASG Raju attempted to convey to the Court that the statements called "exculpatory" by Singhvi were not relevant at all. The ASG claimed that they did not say anything about Kejriwal, and questions were not even put about him to witnesses initially, as he was not the focus of ED's investigation.

It was added that Kejriwal's role only came to light during the course of investigation. If the agency had put his name to witnesses at the outset, the same would have been called 'malafide'. Besides, it took time to confirm what witnesses were saying and unearth the whole conspiracy, Raju submitted.

"If I start asking about Kejriwal at the outset, it would have been called malafide. It takes time to understand. we can't put it overnight. Things have to be confirmed...one need not assume that whatever witness tells IO is...he may mislead the investigating agency...therefore, investigation need not go in a way that we go to accused first...there may be several hurdles."

Common man's rights not lesser than CM's : SG Mehta

Alongside Raju, Mehta vehemently objected to the grant of interim bail to Kejriwal on the ground of Lok Sabha elections. He submitted that Kejriwal avoided ED summons on 9 occasions and could not now be permitted to press election campaigning as an excuse.

Mehta exclaimed that the grant of interim relief would set a wrong precedent, as it would give the idea that political leaders are a class apart. In support, the SG referred to cases of company MDs and other people languishing in jails, whose rights are "equally important" and who would also want to be heard in exigencies particular to their cases.

"He says democracy is basic structure and it's my fundamental right...but so is right to food. Large no. of people are languishing in jail whose families are outside without food. Is a common man's right lesser? Earlier it was about Delhi elections...now he says Punjab elections. Please do not earmark political leaders as a separate class. There are MDs in jail, they can say company is going into bankruptcy and seek interim bail," Mehta said.

All material needs to be considered only when examining if a person is "not guilty" : ASG Raju

During the hearing, the bench also asked whether "all" material needs to be considered by an Investigating Officer under Section 19 PMLA. The provision confers on the agency power of arrest where on the basis of material in its possession, it has "reason to believe" that a person is guilty of an offence under PMLA.

The ASG clarified ED's stance that "all" material is required to be considered only when it is to be seen whether a person is "not guilty". If the assessment is regarding whether a person is "guilty", all material is not required to be considered and reflected in "reasons to believe", the ASG said.

Expressing his doubts on this, Justice Khanna remarked: "an arresting officer has to ensure that he complies with the legislative mandate...that will have to be read as promoting the cause of liberty".

Justice Datta, on the other hand, asked Raju that if there are two sets of materials for prima facie view - one exonerating and one implicating - can the agency selectively choose one set? The ASG replied in the affirmative, saying it was for the IO to see. Unconvinced, Justice Datta expressed that it was an executive act and by an arrest, the right under Article 21 is taken away. The judge eventually posed, "is it not necessary for the agency to reflect on material in possession which does not point towards guilty?", before adding: "you have to balance both the materials...you can't simply exclude one part of the material and say that I have this material in my possession".

When the ASG tried to impress that all material was considered in Kejriwal's case, Justice Datta remarked that he should then not continue raising the argument on "material in possession".

Justice Khanna supplemented Justice Datta's observation by saying that legislature contemplated a possibility of violation of Section 19, and that is why it provided a punishment of 2 years for wrongful arrest. The ASG however continued to emphasize that only those materials were required to be reflected in reasons to believe which led to the formation of prima facie opinion of guilt.

Court questions ED's delay in investigation

During the hearing, Justice Khanna asked Raju as to what was the first occasion when Kejriwal's name came up during recording of statements. In response, Raju referred to the statement of Buchi Babu made on February 23, 2023. The same was however countered by one of the counsels appearing for Kejriwal, pointing to the statement of C Arvind made in November/December 2022.

At a later point in the hearing, when witnesses' statements were being read out by ASG Raju, Justice Khanna observed, "this will show earliest moment in time you came to know about Kejriwal's involvement was 12.11.2022". He questioned the ASG as to why the agency delayed the investigation, when Kejriwal's name came up much before the date of his arrest.

Justice Khanna also deprecated the agency for taking 2 years to investigate the case. "It is not good for an investigating agency to say that it took 2 years" to unearth a controversy, he said.

Kejriwal to not sign official files, if released : Justice Khanna

During the pre-lunch session, Justice Khanna made it clear that the bench was not inclined to allow Kejriwal to attend office and sign official files if he was released in the interim in view of Lok Sabha elections.

Though Singhvi claimed that there was no such prohibition in law, the judge commented that it was a question of propriety and allowing Kejriwal to perform official duties would have a cascading effect. In response, the senior counsel offered an undertaking on behalf of Kejriwal that he would not sign any official files, subject to a condition that the Delhi LG does not stop official work on the basis that the CM has not signed the file.

In this regard, SG Mehta was heard highlighting that Kejriwal is a minister without portfolio. He raised questions about Kejriwal's manner of working and claimed that people often visit his residence.

Background

Kejriwal had petitioned the Supreme Court in April this year, after his writ petition challenging the ED arrest was dismissed by the Delhi High Court on April 9. Notice came to be issued on his plea on April 15, with the matter being directed to be listed in week commencing April 29. Subsequently, when the top Court website showed next date of hearing as May 6, Singhvi mentioned the matter before a Justice Khanna-led Bench on April 26.

After the mentioning, the matter was listed on April 29, when Senior Advocate AM Singhvi led arguments on behalf of the AAP chief and questioned the necessity and timing of his arrest. When the matter was heard on the next day, ie April 30, Singhvi alleged that ED withheld the material favoring Kejriwal. During this hearing, the court posed 5 queries to ASG SV Raju, appearing for the agency, which were sought to be answered by him on May 3.

On the last date (ie May 3), while Singhvi concluded arguments, the ASG began leading arguments for ED. Anticipating that the hearing might not conclude anytime soon, the bench put the ASG on notice that it may hear him on the question of Kejriwal's interim bail in view of the Lok Sabha elections. 

For a detailed background, click here.

Case Title: Arvind Kejriwal v. Directorate of Enforcement, SLP(Crl) 5154/2024