We may consider granting interim bail to Arvind Kejriwal in view of Lok Sabha elections: Supreme Court

The Supreme Court on Friday indicated that it would consider granting interim bail to jailed Delhi Chief Minister Arvind Kejriwal in view of the ongoing Lok Sabha elections [Arvind Kejriwal v. Directorate of Enforcement]..A Bench of Justices Sanjiv Khanna and Dipankar Datta noted that the hearing in the plea filed by Kejriwal challenging his arrest by the Enforcement Directorate (ED) in the Delhi excise policy case could drag on, in which case it would consider the question of interim bail. "This case may take time. But if the case takes time, we may consider the question of interim bail, because of the elections. Let's be very clear on that ... Please be considerate, both sides," the Court orally remarked on Friday.However, the Bench also made it clear that it has not decided anything finally and that it was only informing all counsel that such a form of interim relief may be considered if the hearing is unlikely to conclude soon.."Please also take instructions - we are not saying anything (on whether bail will be granted or not) - we would like to consider grant of interim bail because of elections. Dr. Singhvi (Kejriwal's counsel), don't start without even hearing us - we may or may not grant. We are going to hear you. We must be open to you, because neither side should be taken by surprise. Second ... Because of the position you (Kejriwal) hold, whether you should be signing any files? We are being open, do not assume anything ... Do not read anything into it! We are not saying either way," Justice Khanna said. .The matter will be heard next on May 7, Tuesday. .Kejriwal has challenged his arrest and remand by the ED in a money laundering case associated with alleged irregularities in the framing of the Delhi excise policy of 2021-2022. The Aam Aadmi Party (AAP) leader moved the Supreme Court for relief after the Delhi High Court dismissed his plea in the matter.During the last hearing, the top court had questioned the Enforcement Directorate (ED) on the timing of Kejriwal's ahead of the 2024 Lok Sabha elections. The ED’s money laundering probe against Kejriwal stems from a case registered by the Central Bureau of Investigation (CBI) in 2022 on a complaint made by Delhi Lieutenant Governor VK Saxena.It has been alleged that a criminal conspiracy was hatched by AAP leaders, including Kejriwal, former Deputy Chief Minister Manish Sisodia and others to create loopholes in the Delhi Excise Policy of 2021-22 to favour some liquor sellers.Kejriwal was arrested by the ED on March 21 and is presently lodged in Tihar Jail.The ED had earlier submitted that Kejriwal cannot be treated differently from any other criminal merely because he is a politician.Kejriwal's counsel later countered that although Kejriwal, being a Chief Minister, is not immune from prosecution, his rights are not inferior to the rights of any other person..What necessity to arrest Arvind Kejriwal on March 21?: AM SinghviAppearing for Kejriwal, Senior Advocate AM Singhvi questioned whether there was any change of circumstances to arrest the Aam Aadmi Party (AAP) leader on March 21, when he was supposed to appear before the ED on March 25 in response to a March 16 summons."I (Kejriwal) was not an accused till March 16 ... What is it that changed drastically? I am on the necessity to arrest. The counter of ED has a money trail which is the replica as in the Manish Sisodia case. Thus, nothing has changed. Therefore, in this evidence, all remains same," Singhvi argued..Can AAP be booked under PMLA and would Kejriwal be on the dock then?Singhvi added that even if AAP is accused of some wrongdoing by the ED by citing Section 70 (offences by companies) of the Prevention of Money Laundering Act (PMLA), Kejriwal could not have been arrested. The Court, however, said that if the AAP is viewed as a juristic person or a company and made an accused, the principle of vicarious liability would apply. This would mean Kejriwal could be assigned liability as the person being at the fore of the political party, the Court observed. "Person in charge of and responsible is also deemed to be culpable and then the onus shifts on you to show that it (any offence by the company) was done without your knowledge. You are wrong here, Mr. Singhvi," the Bench said.Singhvi, however, replied that Section 70 of PMLA (which deals with "companies") was never intended to cover a political party."Merely mentioning a company cannot lead to the arrest of its Managing Director, unless you show something. Same thing with AAP," the senior counsel added. Representing the ED, Additional Solicitor General (ASG) SV Raju submitted that Kejriwal's counsel is only making general statements instead of addressing how the AAP leader cannot be incriminated. "He (Singhvi) must point out from the statement on the confession, non-incriminating statement etc. This is all general things that he is saying," ASG Raju said. "You cannot decide my sequence of arguments," Singhvi replied, before continuing to make his submissions. .Does ED have to disclose all or only part of material collected against an accused?As ASG Raju began submissions for the ED, the Court asked him to address on whether the ED is bound to disclose only a part of the material collected against the accused.Apart from "reason to believe" that an accused may be guilty, another basis on which an investigating officer may arrest a person is based on the "possession of material", the Court noted. Against this backdrop, the Court asked whether the ED is bound to disclose "the entire material" collected during investigation or only a part of such material. "I am just (looking at this hypothetically). I am not going by just this particular case. (One view is that) arresting officer has to apply mind to all material in possession, record reasons in writing and he has to come to the conclusion that accused is guilty. Because when the court decides, it considers entire material in his possession - whatever has been collected. Is that correct?" Justice Khanna asked.ASG Raju replied that it would not be practical to expect a probe agency to record all material collected during a probe, as it may run to thousands of pages and bog down the ED officers. If there is some material to incriminate an accused, the arresting officer can make an arrest. The officer is not required to consider other material, if there is other material, the ASG said. "If we record everything in writing, it would be voluminous. That is not what is expected. It is not necessary that irrelevant material has to be reflected. Else chargesheet cannot be filed within 60 days at all. Writing will run into thousand of pages even one or two line is about each material. Investigating officers would be bogged down," ASG Raju said. .How high is the threshold for arresting an accused under PMLA?The Court also deliberated on how strong the "reasons to believe that an accused may be guilty", should be in order to make an arrest under the PMLA.The Bench observed that "reasons to believe" is generally viewed as something beyond mere suspicion. "Vijay Madanlal (judgment) also said threshold (for arrest under PMLA) is higher," Justice Khanna said."Arrest under PMLA is not (based on) the lowest threshold. Here, the investigating officer has the power to arrest on the basis of 'reasons to believe' that the accused is involved (in money laundering) on the basis of material with him. That is why threshold is much higher and Section 45 (of PMLA) was upheld (in the Vijay Madanlal case)!" Justice Datta weighed in..Not a case where there is no material against Kejriwal: EDThe Bench today also posed questions on how a court could examine whether an arresting officer had rightly concluded that an arrest has to be made"The court has to see if there is material. This is not a case where there is no material.. Court has two options to reject arrest if actions of arresting officers are arbitrary and there is no material. Otherwise, the jurisdiction is very limited. This court has delegated power to the (trial court)," ASG Raju replied. He added that Kejriwal was denied relief at least three times before when he challenged the ED's actions. A judicial mind was applied on all these occasions, the ASG contended. "The decision is not only of the IO but fortified by the special judge who is a seasoned judge. There is a concurrent finding in the impugned High Court judgment. Before he was arrested, he moved a Division Bench of the High Court. Most of the grounds have been raised before the High Court and the High Court perused documents and said, no need for interference. Only thereafter, the arrest has been made. He (Kejriwal) could have moved a Section 438 (anticipatory bail) application, he did not.""He wasn't expecting to get arrested," Justice Khanna replied. "We (ED) called him nine times!" ASG Raju pointed out."He has defended it saying that cannot be ground for arrest. And I think one judgment does support him," Justice Khanna observed. "Evasive answers cannot be ground for arrest, yes. But cumulatively, we can take that into consideration," the ASG responded. .[Read live coverage of the hearing today]