The Supreme Court said Friday that on May 7 it may consider granting interim bail to Delhi Chief Minister Arvind Kejriwal in view of the ongoing Lok Sabha elections if the hearing on his petition challenging his arrest by the Enforcement Directorate (ED) gets prolonged.
Kejriwal is currently in judicial custody following his arrest by the ED on March 21 in connection with the Delhi excise policy case.
Towards the end of the proceedings Friday, the bench of Justices Sanjiv Khanna and Dipankar Datta expressed doubts that the hearing on the challenge may not conclude on the next date as well. It told Additional Solicitor General S V Raju who appeared for the ED: “It does appear we will not be able to complete today. So keep it on Tuesday (May 7) morning itself… If it’s going to take time, (and) does appear it’s going to take time, we may then consider the question of interim bail because of the elections. We may hear you on that because of the elections. Let’s be very clear on that.”
The ASG pointed out that Kejriwal had only challenged his arrest and had not filed any bail application. He said the election is one of the grounds raised in the petition. “Maybe, but that (court’s suggestion to take the elections into account) is for interim bail… We may hear you on that,” Justice Khanna said.
Raju referred to the interim bail granted to AAP leader Sanjay Singh and said “look at the statements he is making”.
While granting interim bail to Singh on April 2, the Supreme Court had imposed the condition that he will not make any comment regarding his alleged role in the case.
Justice Khanna asked Raju to take instructions on what conditions should be put in place in case it decides to grant interim relief to Kejriwal including whether he should be signing files in view of the position he holds.
“We are not saying anything. We would like to hear you on the question of interim bail because of the question of elections… We may grant, we may not grant,” the bench said, adding that it was being open “because neither side should be taken by surprise”.
The ASG told the bench that the court’s “statement will be blown out of proportion”.
Justice Khanna said “that’s the problem with the open court”. He said the court is not saying that it will grant or not grant interim bail. “We are not saying either way… We have been open about it. Do not assume anything,” he told the two sides.
The bench, meanwhile, expressed doubts on accepting Kejriwal’s contention that a political party will not come under Section 70 of the Prevention of Money Laundering Act as the provision says “company”.
The AAP name came up in the case because it was alleged that funds raised from the scam were used in the party’s Goa election campaign.
Justice Khanna told Senior Advocate A M Signhvi who appeared for Kejriwal: “It is a little difficult to accept… a society is also an association of individuals. Can it be said that a society won’t come under the provision?”
Continuing with his submissions, Singhvi told the bench that the last summons had come to Kejriwal on March 16 and this showed that the latter was neither a suspect nor an accused till that date. “So it is clear that I am not in a position of an accused till March 16,” he said.
“What changed drastically on March 21 (when he was arrested)?” he asked.
He said there was no new material to arrest. “All the evidence on which I am arrested is pre-2023 middle or end,” he said.
Referring to the court’s ruling in the case of co-accused Manish Sisodia in which it said “prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant Manish Sisodia, direct or indirect, in the transfer of Rs 45,00,00,000 (Rupees forty five crores only) to AAP for the Goa elections, is missing,” Singhvi said this works in Kejriwal’s favour as well.
Countering Singhvi’s argument that the Vijay Madanlal Choudhary ruling — it upheld the PMLA and the ED’s power to make arrest under it — had set a higher threshold set for arrest, Raju told the bench that the investigating officer, before exercising the power to arrest, has to consider the relevant materials to form opinion on the “reasons to believe” that a person is guilty and that if he starts going into every detail, it will only make the process cumbersome and the agency will not be able to file the chargesheet within 60 days.
“Some of the things are irrelevant… The IO does not have to consider everything… otherwise, the chargesheet cannot be filed within 60 days at all… It will run into thousands of pages even if he starts writing at least a few lines about each material,” he said.
Justice Datta asked if it would be appropriate to brush aside materials just because “papers will pile up”.
Raju said he is only saying that whatever is relevant must be considered. “But it’s not for someone else to say you should have considered this,” he said. This appeared to be a reference to Singhvi’s submission that material in favour of Kejriwal had not been taken into account.
Raju said the approach of the investigating officer is strengthened by the orders of the Special Judge and Delhi High Court. He said the High Court, upon perusing the materials, had also refused to give him protection from arrest.
The bench, pointing out that the CBI was yet to name him as an accused in the predicate offence being probed by it and that no adjudication proceedings had been launched against AAP under the PMLA for recovering the alleged proceeds of crime, sought to know if Kejriwal can be proceeded against in view of this.
Raju said confiscation can be done even without adjudication based on conviction.
