Supreme Court tosses Kejriwal’s case back to the Delhi High Court

Today, the counsel for the Directorate of Enforcement continued to argue against the 'perversity' of special judge Niyay Bindu's Order granting Delhi Chief Minister Arvind Kejriwal bail, while Kejriwal's counsel continued to argue for liberty.

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"IF the learned judge [of the Delhi High Court] can stay the Order [of bail, passed by a special judge] at [Additional Solicitor General S.V.] Raju's mentioning, without reasons and without a copy of the Order having been uploaded, why cannot your lordships stay the Order [of the Delhi High Court passing an interim Order staying the bail and saying that it will take "two–three days" to formulate its views on the correctness of the special judge's Order] before the judgment [of the Delhi high court] is given?"

Senior advocate Dr Abhishek Manu Singhvi posed this question to a vacation Bench of the Supreme Court comprising Justices Manoj Misra and S.V.N. Bhatti today.

"Why is your lordship being so deferential to him [the Delhi High Court]? This is a liberty issue. Please juxtapose it with balance. I am going to be at the worse, losing the matter before the learned high court judge passes the Order," he pleaded, arguing on behalf of Chief Minister of Delhi Arvind Kejriwal.

Kejriwal had approached the Supreme Court challenging the interim Order passed by the Delhi High Court staying the bail granted to him by a special court. However, the court adjourned the petition to Wednesday to have the benefit of the high court's Order.

It also replied to Singhvi's grievance and said: "If the high court has made the mistake of staying the bail Order without the copy of the Order or the petition being available to it, why should we also make the same mistake?"

On June 20, special judge Niyay Bindu of Rouse Avenue Court had granted bail to Kejriwal, observing that the Enforcement Directorate (ED) had failed to clarify how much time it would require to trace the money trail completely.

Kejriwal was arrested by the ED under the Prevention of Money Laundering Act, 2002 (PMLA) in connection with the alleged liquor policy scam and has been lodged in Tihar jail since March 21 this year.

Last Friday, Justice Dr Sudhir Kumar Jain of the high court, while staying the bail Order, stated that it would require two to three days to go through the materials filed by the prosecution to formulate his opinion on the plea challenging the bail Order passed by the special judge.

The ED claims it has so far traced around ₹40 crore of the total ₹100 crore alleged to be money laundered in the scam.

It should be noted that the trial court Order mentions that at the stage of bail the court was unable to go through the thousands of pages of material filed by the prosecution.

High court's procedure of staying bail on the first attempt unprecedented

Kejriwal's counsel, senior advocates Vikram Chaudhary and Singhvi, vehemently opposed the manner in which the high court had stayed the bail Order.

Also read: Explained: The liquor scam case against Arvind Kejriwal

They argued that the high court judge had stayed the Order at the mention of the matter around 10:30 a.m. in the morning. The interim Order granting stay was passed without the court having access to the special court's bail Order as it had not been uploaded by that time.

The Leaflet had reported that the high court judge halted the release of Kejriwal by an oral Order even though he did not have the benefit of the case file at that time.

Today, Raju, appearing for the ED, acknowledged that the high court granted a stay without having perused the bail Order.

Singhvi told the court that the high court heard the arguments after lunch the very same day. He termed the manner of the staying of the bail Order as "unprecedented" and "unknown".

He told the court that the high court's Order goes against the age-old well-established jurisprudence that bail granted is different from bail rejected. It is a well-settled position of bail jurisprudence that once the bail has been granted, it cannot be stayed or reversed, he said.

Singhvi stated that Raju has not challenged the bail Order based on the grounds that the accused is a flight risk, etc., which are tenable grounds on which the bail Order could be challenged.

On Friday, Singhvi, while referring to the conduct of Kejriwal, had told the Delhi High Court that respecting the terms of the interim bail he had obtained from the Supreme Court for the Lok Sabha elections, Kejriwal had surrendered on June 2 after the elections were over.

"Where is the imminent flight risk of the accused to stay the bail Order," Singhvi had asked.

Today, he asserted: "The bail Order has been challenged on the grounds of perversity of the Order."

Questions raised on the trial court Order

During the hearing, Justice Misra asked if the special court had satisfied itself that the twin bail conditions under Section 45 (offences to be cognisable and non-bailable) of PMLA had been met.

Section 45 of the PMLA sets twin conditions for granting bail. The first condition is that the prosecution must be given a chance to oppose the bail application.

Also read: "Blatant attempt to circumvent due process of law," says Supreme Court, quashing the arrest of Newsclick's Prabir Purkayastha

The second condition is that once the prosecution has been given a chance to oppose the bail application, the court must have reasonable grounds for believing that the accused is not guilty and that he would not commit an offence while out on bail.

Solicitor General for India Tushar Mehta, for the ED, told the court that the special judge had taken a position that the case is a high-profile case and told the ED counsel multiple times to "cut short the arguments" because she wanted to "pass the Order".

On Friday, ASG Raju had contended before the high court that the Order passed by the special judge was perverse and contrary to Section 45 of the PMLA.

Raju had claimed that he was not allowed to finish his arguments and that his time was cut short by the judge. He had claimed he was denied sufficient time to oppose the bail application. Raju had also contended that the judge, without going through the documents filed by the ED, and without giving him the opportunity to present his side, had decided the matter.

Raju had also referred to what he described as an incorrect recording of the facts in the Order of the special judge. He had submitted that the Enforcement Case Information Report (ECIR) was registered in August and thus there was no question of having any material against Kejriwal in July.

Raju had also contended that the special judge was wrong to conclude that there was no direct evidence against Kejriwal. He had said that if the judge had indeed gone through the material and documents she would not have arrived at such a conclusion.

Raju had also referred to an April 9, 2024, judgment of the Delhi High Court's Justice Swarana Kanta Sharma upholding the arrest of Kejriwal.

In that judgment, Justice Sharma rejects the argument that the timings of the arrest of Kejriwal showed mala fide on the part of the ED.

Relying on the judgment, Raju had questioned the special judge giving contradictory findings. He had added that the Order of Justice Sharma was fully binding on the special judge.

Raju had also argued that the Supreme Court, while reserving the Order on a petition of Kejriwal challenging his arrest under the PMLA, granted him liberty to approach the trial court for bail, but the Supreme Court never said that the trial would decide the matter without being influenced by the Order of Justice Sharma, which was never stayed by the Supreme Court.

Also read: Tis' but two-three days: Kejriwal, liberty and artistic expression of criminal justice 

Today, Mehta told the court that there are two primary components of the second condition under Section 45 of the PMLA: the court must record its satisfaction and the satisfaction must be based on the perusal of evidence before it. 

He remarked that the trial court judge had taken a position in the Order that she "was unable" to peruse the material before her.

He added: "This is violative of Section 45 [of PMLA]".

Chaudhary and Singhvi opposed the manner in which the bail Order had been challenged on the grounds of perversity.

Singhvi said: "[The plea taken by the prosecution] is totally wrong."

Chaudhary stated that the court passed an interim stay when the Order had not even been uploaded. He added: "They are taking a fake plea."

Chaudhary told the court that bail was granted to Kejriwal by the Supreme Court on May 10 to participate in the electoral process. He stated that the ED has already made all possible arguments against Kejriwal.

While granting Kejriwal interim bail, the Supreme Court had observed that though Kejriwal not obeying the nine summons issued by the ED was a negative factor, there were several other facets such as him being the Chief Minister of Delhi and a leader of one of the national parties.

"No doubt, serious accusations have been made, but he has not been convicted. He does not have any criminal antecedents. He is not a threat to society. The investigation in the present case has remained pending since August 2022.

"Arvind Kejriwal was arrested, as noted above, on March 21, 2024. More importantly, the legality and validity of the arrest itself is under challenge before this court and we are yet to finally pronounce on the same.

Also read: Kejriwal Order stares Supreme Court in the face as it sits to decide on Hemant Soren

"The situation cannot be compared with harvesting of crops or a plea to look after business affairs. In this background, once the matter is subjudice and the questions relating to legality of arrest are under consideration, a more holistic and libertarian view is justified, in the background that the 18th Lok Sabha general elections are being held," the Supreme Court had observed.

On May 17, the plea challenging the legality of the arrest was reserved. However, the Order clearly mentions that the bail application could be filed and decided by an appropriate court.

On June 18–19, the trial court had extensively heard the ED opposing the regular bail plea filed by Kejriwal.

Bail of convenience in Kejriwal's favour 

Singhvi repeatedly emphasised before the court that liberty must not be taken for granted.

He informed the court that the balance of convenience was in their favour because they had a bail Order in their hand.

Singhvi told the court that if the high court now dismisses Raju's appeal, how could Kejriwal be compensated for the loss of time for which he has been kept in jail?

After listening to the arguments, the court stated that the high court has asked for short submissions from the parties to be submitted by today which means that the Order will be passed now.

The Supreme Court said it would take up the matter again on Wednesday when it would have had the chance to peruse the high court's Order.

However, before concluding, the Bench remarked: "Normally in stay application, the Orders are not reserved. They are passed on the spot. It is unusual [for the high court to reserve the Order]."