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

Setting aside the maxim of denial of liberty even for a single day being one day too many, the Delhi High Court has stayed Delhi Chief Minister Arvind Kejriwal's bail, granted by a special judge. Here we present the latest developments in detail.

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ON Friday, the Delhi High Court granted a stay on a special judge Order granting bail to Chief Minister of Delhi Arvind Kejriwal under the Prevention of Money Laundering Act (PMLA), 2002 in connection with the alleged 'liquor policy scam' case.

Justice Dr Sudhir Kumar Jain passed an interim Order to this effect observing that he would need two–three days to go through the records of the case to formulate his views on the Directorate of Enforcement (ED) plea challenging the bail Order.

The stay Order was passed by Justice Jain on Friday morning on a mention made by Additional Solicitor General (ASG) S.V. Raju, representing the ED. The judge halted the release of Kejriwal even though he did not have the benefit of the case file.

When the matter was taken up for hearing later in the day, ASG Raju attacked the Order passed by special judge Niyay Bindu. Senior advocates Abhishek Manu Singhvi and Vikram Chaudhary, for Kejriwal, made extensive arguments defending the Order.

After hearing arguments from both sides, Justice Jain decided to issue notice on the petition filed by the ED challenging the special judge's Order.

The Order leans away from the Supreme Court's decision in Arnab Manoranjan Goswami versus the State of Maharashtra, where it was held that deprivation of liberty even for a single day is one day too many and that courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens.

Kejriwal was arrested by the ED on March 21 this year. He was granted interim bail by the Supreme Court for the purpose of Lok Sabha elections on May 10. He was directed to surrender by June 4, which he did.

What did the special judge say?

In her Order granting Kejriwal bail, special judge Niyay Bindu notes that on being asked, the investigating officer had informed her that out of the total alleged amount of ₹100 crore, around ₹40 crore had been traced out in the previous months and the remaining ₹60 crore is yet to be traced.

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

On this aspect, the judge observed that the ED had failed to clarify how much time it required to trace the complete money trail. It would mean, the judge said, that until and unless this exercise of tracing the remaining amount gets completed by the ED, Kejriwal was supposed to remain behind bars, that too without proper evidence against him. This was not an acceptable argument as per the judge.

The judge also observed that the ED was silent about how the proceeds of the alleged crime have been utilised by the Aam Aadmi Party (AAP) in the assembly elections in Goa as admittedly after about two years, the bigger portion of the alleged amount remains untraced.

The judge also noted that the ED had material against Kejriwal in July 2022, but he was called only in August 2023, which shows mala fide of the ED and that the ED could not respond to this argument by Kejriwal.

On the argument of the ASG that the statements of co-accused and approvers were sufficient to establish the personal relation of Kejriwal with some of them, the judge observed that it might be possible that some persons known to Kejriwal were involved in offences or knew other people who were involved in the offences, but the ED had failed to give any direct evidence against Kejriwal in respect of the proceeds of the crime.

On the argument of the ED in respect of the credibility of the approvers that "investigation is an art and sometimes one accused is given the lollypop of bail and pardon and induced with some assurance to make them tell the story behind the offence", Judge Bindu observed that calling investigation an art could be used to justify the implication and incarceration of any person by artistically procuring material against him after artistically avoiding or withdrawing exculpatory material from the record.

Thereby, she contended that the criminal justice system did not render itself such poetic licence.

"This very scenario constrains the court to draw an inference against the investigating agency that it is not acting without bias. The ASG has talked about inducement to extract the truth against other accused involved in the matter but the effect of this submission goes to the conception that the complete truth cannot be revealed through the persons who have resiled from their previous statements.

"Rather, the complete truth shall be established on the basis of the incriminating material, if available on record for which the investigating agency is under an obligation to procure in a legal manner by following the procedural aspects as well," the judge observed.

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

The judge also questioned the silence of the ED on the fact that Kejriwal was not named either in the Central Bureau of Investigation (CBI) case or in the Enforcement Case Information Report (ECIR) filed by the ED. The allegations against Kejriwal surfaced after the subsequent statements of certain co-accused.

The judge also observed that Kejriwal has not been summoned by the court to date, yet he is lying in judicial custody at the instance of the ED on the pretext of the investigation being ongoing.

The judge also observed that the ED had not shown anything on record that Vijay Nair was acting upon the directions of Kejriwal. Vijay Nair is the former in-charge of communication of the AAP and is one of the accused.

The judge also observed that even if Kejriwal was acquainted with Vinod Chauhan and Charanpreet Singh, two of the co-accused persons, that fact by itself was not sufficient to establish his guilt.

The judge also noted that the ED had failed to clarify how it had concluded that the sum of ₹1 crore attached from Vinod Chauhan was part of the proceeds of the crime.

"ED is also not clarifying as to how the alleged amount of ₹40 crore being traced out during the investigation is forming a part of the proceeds of the crime. It seems that the ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever to convince the court with respect to the availability of the evidence against the appellant," the judge said.

Based on these findings, Judge Bindu granted bail to Kejriwal. The ED had also sought a stay of the Order for 48 hours, but the judge declined the request orally.

Against this backdrop, the ED rushed to the high court challenging Judge Bindu's Order. The high court also acted with the speed of light.

ED cried foul that it was not given sufficient time to argue

Appearing for the ED, ASG Raju contended that the Order passed by the special judge was perverse and contrary to Section 45 of the PMLA. Under Section 45, bail can be granted under the PMLA only if the public prosecutor has been given an opportunity to oppose the application for such release and the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

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

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

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

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

Raju 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 had rejected the argument that the timings of the arrest of Kejriwal showed mala fide on the part of the ED.

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

Raju 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.

Matter of life and liberty

Senior advocate Singhvi submitted that full opportunity was given to ASG Raju to argue the matter before the special judge. He claimed that the ED had argued for three hours and 45 minutes before the special judge adding that the judge could not be faulted because she did not repeat every comma and full stop. Singhvi also deplored ED's attempt to malign the special judge.

Countering the argument of Raju with regard to Justice Sharma's Order not having been followed by the special judge, Singhvi contended that Justice Sharma's Order was with regard to the illegality of the arrest, not the bail. He added that the special judge's Order itself clarified the same.

Singhvi also submitted that the petition regarding the illegality of the arrest of Kejriwal is pending before the Supreme Court and the judgment has been reserved.

Also read: Bail continues to evade Umar Khalid's name

He submitted that it was the Supreme Court that granted liberty to Kejriwal to approach the trial court for bail. On this, Singhvi questioned if the trial court could not decide bail unfettered by Justice Sharma's Order or other orders, then what was the point of the Supreme Court giving liberty for going for bail in the first place.

Questioning the urgency shown by the ED in opposing the bail, Singhvi submitted that Article 21 is non-existent for the ED. He added that the ED has very little regard, if any at all, for the liberty of a person.

The ED is turning the law on its head, he averred. Singhvi contended that the test is not to stay the Order and then decide on the validity of the special judge Order. He said it was the other way around. He asked that at the worst (for the ED), if the stay application is denied today and allowed tomorrow what will be the problem? But if the stay is allowed today, and the matter is finally decided after a few months, then the liberty will be casualty.

Singhvi argued that the stay of the bail Order would amount to a cancellation of the bail and that the threshold for cancellation of bail which has been granted by a competent court is higher.

He relied upon a decision of the Supreme Court in Dolat Ram versus State Of Haryana, in which the Supreme Court held that very cogent and overwhelming circumstances are necessary for an Order directing the cancellation of a bail already granted.

Singhvi also referred to the conduct of Kejriwal. He highlighted how Kejriwal had surrendered to the trial court on June 2 in terms of the interim Order of the Supreme Court.

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

Also read: Staying a bail Order, that too in a UAPA matter where getting bail is already difficult, is a travesty of justice

Singhvi also referred to how the co-accused were granted bail after they gave statements against Kejriwal.

Singhvi referred to the statements given in 2022 by four witnesses— Raghav Magunta, Buchi Babu, Abhishek Boinpally and P. Sarath Reddy. He submitted that they did not implicate Kejriwal.

Magunta Sreenivasulu Reddy, father of co-accused-turned-approver Raghav Magunta, after his initial statement dated September 16, 2022, made a statement on July 16, 2023. Two days after his statement on July 18, 2023, his son got interim bail.

Senior advocate Vikram Chaudhary also made submissions on behalf of Kejriwal. He submitted that the special judge had fully complied with Section 45 of the PMLA. He said if the trial judge had written hundreds of pages, then the ED would have said the court had done a mini-trial.

That they (the ED) had to argue for hours altogether shows they have no case at all, Chaudhary submitted.