HC asks ED to submit note on Kejriwal passing orders in custody

The Delhi high court on Monday asked the Enforcement Directorate to submit its note to the special judge, dealing with the excise policy-linked money laundering case in which Chief Minister Arvind Kejriwal has been arrested, on the issue of the CM passing orders while in custody.

A bench of Acting Chief Justice Manmohan and Justice Manmeet PS Arora said the special judge is directed to pass an order, if required, in accordance with law. It clarified that it has not commented on the locus standi of the petitioner.

The court disposed of a public interest litigation that sought directions to prevent Kejriwal from issuing orders in his capacity as the chief minister while in ED custody, contending that it was against the legal framework.

“This court directs Respondent No. 2 (ED) to bring its contents/ note to the notice of the said judge who is directed to pass an order in accordance with law, if required,” the bench said.

During the hearing, the ED's counsel said the agency was seized of the issue raised in the petition and that it was not providing any infrastructure to Kejriwal for passing orders.

“The petitioner's apprehension or understanding is that ED has provided apparatus and infrastructure to the chief minister but this is not the case. We have not provided anything to him. We have done some investigation.

"If the process has been misused by way of 'mulakat', it will have to be looked into,” ED's counsel submitted, adding, “Today it is not disputed that an order has been passed by him in custody”.

To this, the court asked the agency's counsel to bring it to the notice of the special judge dealing with the case and suggested that the plea be treated as a representation by ED.

The petition was vehemently opposed by senior advocate Rahul Mehra, representing Kejriwal, who said the petition has no locus standi to be heard and the ED was capable enough to deal with the matter.

The counsel said this was the third such petition filed before the high court and added that he has no instructions on the issue of whether Kejriwal was passing orders while being in custody.

“What is the basis of this apprehension? The petitioner must show some material to invoke the court's writ jurisdiction. This will open a pandora's box. The ED is well equipped, it does not need anyone's assistance in this. How is this third party coming in and interfering?” Mehra argued.

The petitioner, Surjit Singh Yadav, said in the PIL that issuance of such orders by Kejriwal in the capacity as the CM is against the legal framework as well as the principle of fair and proper investigation.

The plea also seeks a direction to the ED not to provide a typist, computer and printer to Kejriwal.

The Aam Aadmi Party national convener, who was arrested on March 21 and subsequently remanded to the ED custody by a Delhi court, faces allegations of direct involvement in a conspiracy related to the formulation of the excise policy favouring specific individuals.

Kejriwal was on Monday sent to judicial custody by the trial court till April 15. His petition challenging his arrest is scheduled to be heard by the high court on April 3.

In the PIL, the petitioner, who claims to be a social worker, has asserted that Kejriwal has "virtually forfeited his office" and being in custody, he has disabled himself from performing the duties and responsibilities of a public servant.

"The Respondent No. 4 (Kejriwal), while issuing direction/ order being in the custody of Respondent No. 2 (ED), is breaching his oath of secrecy administered to him under the Third Schedule of the Constitution of India as any directions/ orders passed by him would have to be scanned thoroughly by the Respondent No. 2 as they are in charge of the custody of Respondent No. 4," the PIL said.

"The inaction by the Respondent Nos. 1-3 (Centre, ED and Delhi government) to restrain Respondent No. 4 from issuing direction/ order while in custody and communicating the said order to Respondent No. 5 (Delhi minister Atishi) is a gross example of abuse of power and position, and merits interference by this court," it has claimed.

Earlier, Yadav had filed a separate PIL seeking Kejriwal's removal from the chief minister's post following his arrest and it was rejected by the high court.