If AAP Is The Main Accused, Can Kejriwal Be Prosecuted Without Adjudication Proceedings Against AAP? Supreme Court Asks ED

While hearing Delhi Chief Minister Arvind Kejriwal's plea challenging his arrest by the Enforcement Directorate in the Delhi Liquor Policy case, the Supreme Court on Friday (May 3) asked ED counsel Additional Solicitor General SV Raju whether the agency can prosecute Kejriwal when there are no adjudication proceedings going on against the Aam Aadmi Party(AAP).

The bench of Justices Sanjiv Khanna and Dipankar Datta grilled the ASG during the hearing on whether criminal proceedings under PMLA can precede adjudication proceedings. The ASG argued that adjudication proceedings against AAP were not mandatory for the prosecution of Kejriwal.

Anticipating that the present case may spill over beyond May 23 (the date of polls in Delhi), the bench expressed that it might consider the question of interim bail for the AAP chief, in view of the elections, if the hearing gets delayed.

In respect of "reasons to believe" under Section 19 PMLA, Justice Khanna further observed that ED had applied Section 70 PMLA in Kejriwal's case and therefore the prime accused, according to the agency, was the AAP party and Kejriwal was alleged to be vicariously liable as the chief of the AAP.

The bench also pointed out that Kejriwal is not being prosecuted for the predicate offence under the Prevention of Corruption Act, which is being handled by the CBI. 

However, Kejriwal is not being prosecuted by the CBI, inasmuch as he has not been chargesheeted, and this raises the question whether he can be prosecuted without a notice being sent to AAP.

"If the AAP Party is the main accused, till adjudication proceedings are initiated against AAP, can you prosecute (Kejriwal)?", Justice Khanna was heard asking.

The ASG replied in the affirmative: "Yes, there is no need for adjudication proceedings...adjudication proceedings are not a sine qua non...there can be confiscation without adjudication...the condition precedent for confiscation is conviction in a trial".

To contend that even attachment proceedings are not mandatory before criminal prosecution, the ASG took the Court through Section 5(1) PMLA and submitted that only when the concerned officer is of the view that confiscation proceedings may be frustrated that an attachment order is passed.

Adjudication proceedings are held under Section 8 of the PMLA for the realisation of the proceeds of the crime. Justice Khanna also observed during the hearing that in the Vijay Madanlal Choudhary case, the Supreme Court held the ED officers to be not police officers on the reasoning that they are carrying out investigation in relation to the adjudication proceedings.

The matter is next listed on May 7.

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