Delhi High Court refuses to interfere with CM Kejriwal's arrest by ED

Justice Swarana Kanta Sharma issued notice on the AAP leader's petition challenging his arrest and the subsequent remand to the ED's custody, and asked the agency to file its response to it as well as his plea for interim relief of release before April 2.

New Delhi: The Delhi High Court on Wednesday declined to consider a plea filed by Delhi Chief Minister Arvind Kejriwal for interim release in a money laundering case in connection with the liquor policy scam.

A bench of Justice Swarana Kanta Sharma said it will be unfair to not give an opportunity to the Enforcement Directorate to furnish a detailed response to rebut a writ petition and other documents filed by Kejriwal.

The court also said declining the opportunity to file a reply would amount to denial of fair hearing as well as violation of one of the principles of natural justice, applicable to both the parties and not just one of them.

The bench also said, "Any release order from custody will amount to enlarging the accused/petitioner on bail or interim bail, as an interim measure. The writ jurisdiction under Article 226 of the Constitution is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC ordinarily."

The court, however, issued notice to the ED on the plea to declare Kejriwal's arrest on March 21, 2024 as illegal, arbitrary, and unconstitutional and to set aside the order of remand passed on March 22, 2024. It asked the ED to file a reply on April 2, 2024 and fixed the matter for final disposal on April 3, 2024.

The court rejected a contention by senior counsel A M Singhvi, appearing for the petitioner, that no reply is required to be filed on behalf of the ED.

"The court while hearing and deciding a case is duty bound to hear both sides fairly keeping in mind the principles of natural justice. Thus, the reply by Directorate of Enforcement is essential and crucial to decide the present case," the bench said.

It also noted the present petition raised several issues of legality and validity regarding the arrest and remand of the petitioner. Additionally, it questioned whether the arrest may be politically motivated and malafide.

"There are also serious concerns raised by Singhvi on behalf of the petitioner, which relate to Article 21 of the Constitution and Section 19 of PMLA, as well as the validity of the statement of an approver. The necessity and timing of the arrest of the petitioner and the motive behind it has also been argued at length," the court noted.

It also recorded the counsel has also raised serious and critical questions that this court being a constitutional court must apply its mind to the motive behind the arrest which is patently illegal and has a direct bearing on the democratic process of impending elections in the country.

"In this court’s opinion, such important questions and issues cannot be summarily heard and decided, by giving opportunity to only one party to file petition, documents, short note of arguments and compilation of judgments relied upon by them, especially when copy of the petition was provided to the Directorate of Enforcement Tuesday itself, and the short note of arguments and compilation of judgments relied upon by them were provided to the Court as well as the ASG during the hearing itself," the bench said.

The bench also pointed out it remained conscious of the fact that to reach a conclusion as to whether the petitioner was entitled to immediate release or not, this court will necessarily have to decide the issues raised in the main petition, which are also the edifice of arguments seeking immediate release of the petitioner.

"The Directorate of Enforcement will ensure that replies are filed to the main petition as well as the application for interim release of the petitioner by 02.04.2024 and copies of the same are provided in digitized form as well as hard copy to the learned counsel for the petitioner," ordered the court.

Kejriwal, who was arrested on March 21 and subsequently remanded to the ED's custody till March 28 by a Delhi court, had sought his immediate release on the ground that the arrest was illegal.

Senior advocate Abhishek Singhvi, appearing for Kejriwal, contended the arrest of a sitting chief minister on the cusp of elections was against the basic structure of the Constitution.

"Object of the arrest was not to find material but to disable me and my party. My prayer is, release me now," he argued.

The ED had arrested Kejriwal hours after the high court refused to grant him protection from coercive action by the anti-money laundering probe agency.

The case pertains to the alleged corruption and money laundering in formulating and executing the Delhi government's excise policy for 2021-22 that was later scrapped.

(With PTI inputs)