Will Arvind Kejriwal get interim bail to campaign for elections? Supreme Court to decide

The Supreme Court on Tuesday hinted at granting interim bail to jailed Delhi Chief Minister (CM) Arvind Kejriwal in the money laundering case registered against him by the Enforcement Directorate (ED) in connection with the Delhi excise policy [Arvind Kejriwal v. Directorate of Enforcement]..A Bench of Justices Sanjiv Khanna and Dipankar Datta did not pass any order yet but said that if interim bail is granted, Kejriwal should not discharge any official duties as Chief Minister."Suppose we grant interim bail on account of elections. Then if you say you will attend to office then it may have cascading effect.. Dr Singhvi if we give any interim bail we do not want you to be performing official duties as somewhere it will lead to conflict. We do not want interference at all in the working of the government," the Court remarked.However, in the same breath, the Court also remarked,"Let us see whether at all it (interim bail) should be given or not.".Solicitor General (SG) Tushar Mehta, appearing for the Enforcement Directorate, vehemently opposed the plea for interim bail."Please do not earmark a political leader as a separate class and let them not be separated from the common man. It is being stated that nothing was done (by ED) in 1.5 years and (he was) picked up during elections. That is not the correct impression at all," he said.Releasing him because he is a politician is not a correct precedent, the SG insisted. "He chose to be a Chief Minister without a portfolio and it is done to accommodate some people. If bail is allowed, won't this be irreversible if the plea is allowed," the SG asked.."No no, not irreversible," Justice Khanna replied.The Court also highlighted how Republic TV Editor-in-Chief Arnab Goswami was granted relief by the top court in a case against him."It happened in Arnab Goswami. Bombay High Court order was under challenge," Justice Datta remarked..The SG said that letting out Kejriwal citing elections will set a bad precedent and others will seek similar exemptions. "The Court is allowing the doors of contingencies just to let out this one person and the public prosecutor will not be able to argue ever if a kirana owner comes. I know these are inconvenient arguments," he said.However, the Court said it was not creating any special exemption for politicians but was only passing the order taking into account the fact that the general elections are due."We are not going by whether he is a politician or not a politician. Every individual involved will have a special circumstance or case involved. We have to see if that person falls under that special circumstance considering elections are there. We are not saying there is a different law for others," the Court made it clear.Since it could not complete the hearing today, it said that that the matter will be heard again on May 9 or next week. .The Bench was hearing the plea filed by Kejriwal challenging his arrest and remand by the Enforcement Directorate (ED) in the Delhi excise policy case.The Aam Aadmi Party (AAP) leader moved the Supreme Court for relief after the Delhi High Court dismissed his plea in the matter..Background.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.During an earlier hearing, the top court had questioned the ED on the timing of Kejriwal's ahead of the 2024 Lok Sabha elections..Arguments Today .During the hearing today, Additional Solicitor General (ASG) SV Raju, appearing for ED, said that when the investigation started, Arvind Kejriwal was not under the radar. His role became clear as the investigation progressed, the ASG said.During the hearing, the Court also questioned the ASG about the increase in the proceeds of the crime. "₹100 crore was proceeds of crime. How did it become 1,100 cores in 2 or 3 years.. that will be a phenomenal rate of return," the Court queried."₹590 Crore is wholesaler profit," the ASG replied. "Difference was about 338 crores.. entire thing cannot be proceeds of crime," the Court insisted.The Court also asked when was the first government official/ functionary arrested in the matter."March 9, 2020," the ASG replied.The Court then asked why it took the ED so long to probe Kejriwal."What is he saying is that why did you not start the investigation (against him)? When you say that there are kickbacks then you must get into that question.. if you have not seen that then it is your issue," the Court said.The ASG said that if Kejriwal is arrested at a preliminary stage of the probe, then it would appear like the ED was doing it out of mala fides. "I am going by investigation to see who is involved. This is preliminary investigation and if I say give material against Kejriwal then it will seem like apparent mala fide," the ASG replied..The Court said that it needs to see the case files from the stage before AAP leader Manish Sisodia was arrested and the case file after he was arrested."We want to see the file before Manish Sisodia was arrested and after Sisodia was arrested. Do you produce the case file before the magistrate? Do you take all the files ? You also produce the case as before Kejriwal was arrested," the Bench said.Pertinently, the Court said that it will examine whether Section 19 of the PMLA was complied with while arresting Kejriwal.Section 19 empowers ED to arrest a person if they have sufficient material to suspect that the concerned person is guilty of the offence of money laundering under PMLA. "The issue before us is very limited and it is compliance with Section 19 and we need to see what is the nature of enquiry and reasons to be recorded. And we need to see what happened to the investigation from one stage to the other stage and for an investigating agency to take two years for this is not good. We need to see whether section 19 compliance is done or not," the Court made it clear."We have proof that hotel expenses of Arvind Kejriwal during Goa elections. It was a 7-star hotel. Grand Hyatt in Goa and the bill was paid by chariot enterprises and we have documentary evidence to that effect," the ASG said.The ASG reiterated during the initial stages of the probe, Kejriwal was not being investigated."We can show that Kejriwal demanded ₹100 crores. At the nascent stage, Kejriwal was not the focus and investigating agency was not looking at that. The role became clearer only when the investigation progressed," Raju contended."When was the first question put with regard to Arvind Kejriwal," the Court queried. "It was in the statement of Buchi Babu (former auditor of BRS leader K Kavitha). The statement of Buchi Babu was taken on February 23, 2023" the ASG replied."In this case you have to be front footed. You have acted under Section 19. You are saying non relevance on the material relied on by the petitioners have no consequence," the Court remarked.The ASG said that one of the witnesses had said he had met Kejriwal for a land deal but the ED later came to know that the statement was bogus and the real purpose of the meeting was in relation to the ₹100 crores. The Court, however, said that it was not relevant at this stage. It further underlined that the grounds of arrest and the reasons to believe the involvement of the arrested person have to be one and the same."We need not to go into all of that It is not relevant. We need to see if this is given in reasons to believe under Section 19 PMLA," Bench remarked."But the grounds of arrest are different," the ASG said. "No Mr Raju. Grounds of arrest and reasons to believe have to be same. Reasons to believe has to be far more elaborate than the grounds of arrest. You have to struggle on that a bit," the Court replied.The ASG argued that statements given by an arrested person to an agency is admissible as evidence if they are not in the nature of confession. In this case, since the statement by the arrested person is that he gave bribe (to AAP/ Kejriwal), the same is admissible, it was contended. "When a person is arrested his statement is recorded after arrest. Non- confessional statement is admissible and confessional statement is not admissible. So when he says that he gave a bribe to someone, it is not against him and so it is admissible," the ASG submitted.But the Court said that it will have to examine the provisions of the Indian Evidence Act for the same which was not necessary at this stage. "This argument is debatable. We have to read section 24 to 27 of the Indian Evidence Act. We will not go into that now," the Court remarked.It said that at this juncture, it was interested in the statements of witnesses which implicates Kejriwal."Give us the statements on a piece of paper which implicates Kejriwal," the Court remarked..The Court also made it clear that Section 19 has to be interpreted in such a way that it promotes liberty."Legislature says arresting officer can arrest when he has material and we have to read the legislative mandate in way to promote liberty. Now what you are arguing here is contrary to Vijay Mandanlal. it is recorded that the standard of arrest is much higher," the Court remarked.Elaborating on this, the Court further said that the argument made by Kejriwal is that as per the scheme of PMLA, during the arrest and remand, the onus is on ED to prove that there is sufficient material to arrest while during the bail stage, the onus shifts to the accused to prove that there is no prima facie case against him."What we want to do is that lay down parameters under Section 19 PMLA. what they say is that during remand onus is on ED while during bail the onus shifts on the accused," the Court said.It also said that the ED has to examine the balancing material as well and it cannot exclude the material which is in favour of Kejriwal while making the arrest."What about balancing material. You cannot exclude one material that does not point towards him. With arrest, you take away Article 21. So you have to balance the material," Justice Datta remarked."Investigating Officer (IO) can do that... can take that call," the ASG said.."That means it is an executive act. balancing material has to be done. You cannot say you will look at only one material," the Bench underlined.The benchmark to arrest under Section 19 of PMLA is very high, Justice Khanna weighed in."Section 19 benchmark is high compared to Customs Act also.. but you can argue that you meet the benchmark," he said.The ASG said that the agency need to state/ reveal all the material which prompted the arrest and only those material need to be spelt out on the basis of which there are reasons to believe that the arrested person is guilty."I have considered all material. But in reasons to believe, I need not state all the material which was gone into by me for forming the "reasons to believe" and this reasons to believe must only reflect material on the basis of which he is found guilty," the ASG said.The Court, however, said that the catch word there is 'guilty'."This is reasons to believe he is guilty and not just the arrest," the Bench remarked.The Court further stated that it not on the question of discharge but only on arrest."We are not examining the question of discharge here. We are seeing whether a person should be arrested or not."It also sought to distinguish between arrest under Section 19 and bail under Section 45."They say Section 45 PMLA does not come to being when it is about remand. They are on Section 19 PMLA and they have not applied bail though they could have done that. So we are primarily concerned with Section 19 of PMLA," the Court stated..The Court eventually said that it will consider the question of interim bail."Election is coming and he is the elected Chief Minister of Delhi and this is an extraordinary case. He is not involved in any other case," the Court said.The Central government opposed the same, with Solicitor General (SG) Tushar Mehta stating that no special treatment should be granted to a Chief Minister."What example are we setting. He is a Chief Minister and he wants to campaign? If an agriculturist has to tend to his field and a kirana store owner has to go to his shop? How can a Chief Minister be treated different than an Aam Aadmi. Are we carving out an exception for a class of politician as A class and he needs to campaign. Would election campaign be more more important than a person who wants to run a kirana shop," the SG demanded.The Court said that the comparison was incorrect since elections happen only once in five years."We cannot decide the bail plea if you take time.. we may not be able to decide by end of this month. Elections in once in 4 years and harvesting every 4 months. We do not appreciate this at all," the Bench remarked."But (what) if its seen that arrest was correct," the ASG asked.The Court can then correct itself since it is only interim bail, the Bench said."We are in Supreme Court you see.. we can say arrest was correct and still grant interim bail and then correct ourselves. We can," Justice Khanna replied. However, the SG insisted that no special treatment should be accorded to Kejriwal since he had refused to cooperate with the probe for six months before his arrest."See the position in which the investigation agency is put. He chooses not to cooperate and now he will say that he has to campaign now. Why did not he cooperate 6 months ago then. There are many common people who are constitutionally at par. We are dealing with the CM of capital and he has evaded summons for 6 months. Please do not make an exception as it would demoralise a real common man and it shows that if you are holding a position then you will get benefit," the SG said."See the name cropped up in Feb - March 2023 and then nothing was done... you have to meet that argument also," Justice Khanna replied.Mehta, however, opposed the same."If the court calls upon us to answer interim bail... then this court should hear on his role. Only if he is not campaigning, then heavens will not fall. Just because they are running out of time, how can this reach here," he asked..The Court said that if interim relief is not granted now, then elections would be over by the time the Court pronounces its verdict."If we reserve judgment, then it will have to be pronounced also. again if we decide allow the plea then this period of election campaigning will go. Thus, we grant interim relief in extraordinary cases," Justice Khanna said."CM of Delhi is only CM who does not hold the portfolio. He does not sign any file. Even the prime minister signs files and this includes the ministries," SG Mehta said.Dr. Abhishek Manu Singhvi, representing Kejriwal, said that the arguments by SG were irrelevant."What Chief Minister without portfolio. There have been prime ministers without portfolio. Are these constitutional arguments," he asked.He said that Kejriwal is neither a neither a flight risk nor a habitual offender who is a threat to the society.He also said that courts have earlier granted bail to people to campaign for elections."This court has spent some time to see that this man is not steeped in crime. He is not a habitual offender. Elections in Punjab are on first and Delhi on 25th. Supreme Court earlier while granting bail has noted that it cannot gag a person to address political speeches etc," Singhvi argued.He also highlighted how the CM had responded to the summons by ED."I had replied to the first summon, And second time onwards we have replied saying I am available but I apprehend wrongful arrest.. and the judgment on me should be definitive on section 19 PMLA," he submitted.He also highlighted cases from Odisha and Andhra Pradesh where political leaders were allowed to campaign for elections."Please see the Shiv Shankar Das case from Odisha. Bail was granted on condition that the person shall not campaign. The Supreme Court cancelled the condition. Then comes Chandrababu Naidu case which was just a few months ago. It was held press interviews can be given."

Will Arvind Kejriwal get interim bail to campaign for elections? Supreme Court to decide

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