May grant interim bail to Kejriwal due to polls: SC

Delhi Chief Minister Arvind Kejriwal

The Supreme Court on Friday said it may consider granting interim bail to Delhi chief minister Arvind Kejriwal in view of the ongoing elections and asked the Enforcement Directorate (ED) to take instructions by Tuesday on the conditions of bail to be imposed and suggest ways in which Kejriwal could continue to sign off on official files while in custody.

The suggestion by the court came while hearing a petition filed by the Aam Aadmi Party (AAP) convenor challenging his arrest on March 21 in connection with Delhi’s now scrapped excise policy.

With the hearing on the petition remaining inconclusive and the matter getting adjourned to Tuesday, a bench of justices Sanjiv Khanna and Dipankar Datta said, “If this petition takes time, we are considering interim bail because of elections.” Asking ED to consider this suggestion, the bench added, “Please be considerate. Take instructions as we would like to hear you on this aspect and if any conditions you require (to be imposed).”

The court’s suggestion has come following its remark on Tuesday asking ED on the timing of Kejriwal’s arrest close to the general elections. Additional solicitor general (ASG) SV Raju appearing for ED said that the statement of the court on bail could be blown out of proportion. The bench responded: “That is the problem of open court hearing… We may or may not grant bail.” Raju said that in any event, he should be heard fully before any interim relief is decided.

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To be sure, the court added that it was only indicating what was on its mind and did not want to take any side by surprise. It asked Raju and senior advocate Abhishek Singhvi, appearing for Kejriwal not to assume anything.

“We must be open to you as neither side should be taken by surprise. Do not read anything into what we are suggesting,” the court said.

At the same time, the court wished to know the stand of the agency on allowing Kejriwal to sign on official files. “Because of the position he holds, whether he should be signing any files. Do not assume anything as we have been open about it.”

The court also wondered whether it was possible to prosecute Kejriwal for vicarious liability when the main accused is AAP against which no confiscation proceedings have been initiated for recovering proceeds of crime.

“If AAP is the main accused, till adjudication proceedings are not initiated against AAP, can you prosecute him (Kejriwal)?,” the bench observed. Citing the July 2022 verdict in Vijay Madanlal Chaudhary which upheld the validity of contentious provisions of the Prevention of Money Laundering Act, the bench told Raju, “If you go through the Vijay Madanlal judgment, why ED officer cannot be treated as police officer is because they conduct investigation in relation to adjudicatory proceedings. Prosecution may or may not take place, but confiscation is primary.”

Raju told the court that for attaching proceeds of crime, charge sheet must be filed and confiscation depends on conviction following trial in the case.

Singhvi who concluded arguments on behalf of Kejriwal on Friday told the court that on March 16, the day when the election schedule was announced, ED issued summons to him (the ninth since October last year) requiring him to remain present on March 21, the day he was arrested. He said there was no necessity to arrest him based on the material available and statements made by witnesses and approvers that were to his benefit were not considered. He further argued that AAP has been named an accused under Section 70 of PMLA which only contemplates business associations and corporate bodies, not a political party registered under the Representation of Peoples Act.

He claimed that many of the witnesses were induced to give incriminating statements against Kejriwal and ED conveniently chose to take those statements without bringing the earlier statements on record.

Raju told the court that the investigating officer (IO) is not bound to take all material. “The material in this case is voluminous. The IO has to consider only the relevant material which affects his reason to believe that a person is guilty in order to arrest him under Section 19 of PMLA. Otherwise, the agency will be bogged down and cannot file the charge sheet or complaint within the stipulated time period.”

The court was not convinced and wished to know the parameters on the basis of which the investigating officer made the assessment of relevance.

Kejriwal is the third AAP leader to be arrested in connection with the irregularities in the Delhi excise scam. The case was taken up for probe by the Central Bureau of Investigation (CBI) after Delhi LG V K Saxena recommended a probe into the alleged irregularities in the policy in July 2022.

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