We may consider interim bail to Kejriwal ahead of LS polls, SC tells ED

The Supreme Court on Friday said it may consider granting interim bail to Delhi Chief Minister Arvind Kejriwal in view of the ongoing Lok Sabha elections, in a ray of hope to the Aam Aadmi Party chief arrested in the excise policy-linked money laundering case.

Kejriwal was arrested on March 21 and is currently lodged in Tihar jail under judicial custody.

A bench of justices Sanjiv Khanna and Dipankar Datta told the Enforcement Directorate that arguments on Kejriwal's plea against his arrest are likely to take time and therefore it was considering hearing the probe agency on the issue of interim bail to him on account of Lok Sabha elections in Delhi.

Delhi goes to polls on May 25.

It then told Additional Solicitor General SV Raju, appearing for the ED, to be ready with the case on May 7.

"It appears we can't complete today. We will post it on Tuesday morning itself. Mr Raju, one more thing. If it is going to take time and it does appear to us that it may take some time, we will then consider the question of interim bail because of the elections," the bench told Raju, who was wrapping up his arguments for the day.

Raju submitted that he will oppose bail to Kejriwal and pointed to the statements made by Aam Aadmi Party (AAP) leader Sanjay Singh after getting bail last month in the same case.

"Just, look at the kind of statements he is making," the ASG said.

The bench said it is putting the agency on notice about the court's intention, so that it is not taken by surprise on May 7, when the interim bail issue will be dealt with.

"We are not commenting on it either way. We are just saying we will hear on interim bail and not saying we will grant interim bail. We may or may not grant interim bail."

It also told senior advocate Abhishek Singhvi, appearing for Kejriwal, "Just one thing more. Please also take instructions. Because of the position he holds, whether he should be signing official files?"

During the hearing, Singhvi informed the bench that on March 16 the elections were announced and on March 21, Kejriwal was arrested by the ED on the basis of statements and materials which were available with the agency since last July.

The bench asked Singhvi about the poll date in Delhi to which he replied that the campaigning will end on May 23 and polling will take place on May 25.

The top court was also critical of Singhvi's arguments that AAP being a political party it will not be covered under section 70 of the Prevention of Money Laundering Act, which deals with offences by companies.

"Anything done by a political party cannot be attributed to its President, Convenor or General Secretary, else it will be a case of vicarious liability. A political party is out of the section 70 of the PMLA," Singhvi submitted, adding that the provision only deals with companies.

The senior lawyer further said that a political party is not a partnership, private corporate firm or a society but an entity which is registered under the Representation of the People Act.

The bench said, "It is difficult to accept your arguments. AAP is a juristic person and cannot be arrested. It can be impleaded as accused. Person in-charge can be prosecuted along with the juristic person under section 70 of the PMLA. Will the society not be covered under section 70. Anyway, we have noted your arguments and will deal with it."

Singhvi said there is no direct evidence of Kejriwal receiving alleged kickbacks and if at all he has, then the case will fall under the Prevention of Corruption Act and not the PMLA.

He added that all the materials the ED has were covered in the bail case of former Deputy Chief Minister Manish Sisodia and the court has said that no case is made out based on them.

The top court also posed several queries to the ED including on why nine exculpatory statements of witnesses were not mentioned in the grounds of arrest of Kejriwal and why only inculpatory statements were listed.

Raju replied that the investigating officer, though having considered all the material before him, is required to only mention the relevant material which make him believe that the accused has committed the offence.

"I have considered all the material but I need to mention only the relevant material and not irrelevant material. The statements which are exculpatory are irrelevant material and if the investigation officer is to record all the material before it, then the record will be voluminous and he will not be able to file the chargesheet in 60 days," Raju submitted.

However, the bench did not agree with the submissions and said the scheme of the law and the 2022 verdict in the Vijay Madanlal Choudhury case have kept section 19 at higher pedestal and therefore the entire material should be before the court at the time of his arrest.

Section 19 of the PMLA empowers the ED to arrest persons based on the material in its possession, providing a reasonable basis to suspect that an individual has committed an offence punishable under the law.

The top court had issued a notice to the ED on April 15 and sought its response to Kejriwal's plea against his arrest.

On April 9, the high court upheld Kejriwal's arrest, saying there was no illegality and the ED was left with "little option" after he skipped repeated summonses and refused to join the investigations.

The case relates to alleged corruption and money laundering in the formulation and execution of the Delhi government's now-scrapped excise policy for 2021-22.