Twin Test Under PMLA Not Satisfied As Trial Court Expressly Said In Order That It Did Not Go Through Documents: Tushar Mehta Argues Against Delhi Court's Order Granting Bail To Kejriwal

The Union of India and the Enforcement Directorate, during the hearing of the appeal by Chief Minister Arvind Kejriwal against the stay by the Delhi High Court of the bail granted to him by the Trial Court, raised questions about the legality of the order of the Trial Court and highlighted that the Trial Court had specifically stated in the order that it did not go through the record of the case.

The Vacation Bench of Justice Manoj Misra and Justice SVN Bhatti refused to give any urgent relief to Kejriwal and listed the matter on June 26, 2024. The Court also remarked that it was unusual that the order was reserved on the interim application, in a challenge against the order granting bail.

Solicitor General Tushar Mehta argued, "The Hon'ble Court (Trial Court) was the vacation judge for two days...there are two conditions(twin conditions under Section 45 PMLA)...the Court will have to record the satisfaction that the offence is committed. For the purpose of arriving that satisfaction, the Court will obviously and necessarily have to go through the record of the case. The Court starts by saying that this is a high-profile case, which it is not. For the Court, every person is Aam Aadmi and nobody is high profiled or low profiled. The Court continuously asked my colleague- you cut short the arguments, I want to pass the order today."

He further submitted, "Now last point...the Court records in the order that- who has the time to go through the record of the case... Therefore that condition is not satisfied."

ASG SV Raju appeared for ED, referred to the order passed by the Trial Court and said, "In the order, the Court says that I have not looked at the papers and passed the order. The Court specifically says that I have not looked at the papers. How can an order be passed? ...This is a travesty of justice."

Mehta further said, "That is a violation of Section 45 (PMLA). It is a jurisdictional question."

The Counsel for the ED were referring to the finding of the Trial Court which, while allowing the bail to Kejriwal, had observed, "Although, various bulky documents and citations have been filed by both the parties, most of which were not even relevant in respect of the present application but it seems that both the parties have filed the same alongwith detailed oral arguments with the apprehension as to an order may be passed in favour of the opposite party. Admittedly, the present matter is a peculiar case wherein various accused, witnesses and stake holders are involved and neither ED nor the defense wants the order to be passed in favour of the other. However, it is not possible to go through these thousands of pages of the documents at this juncture but this is the duty of the court to work upon the matter whichever comes for consideration and pass the order in accordance with the law. Although, sometimes the courts refrain from passing such orders on account of various reasons which may be having long lasting effects."

The Delhi High Court, June 21, 2024, had reserved the verdict in the Enforcement Directorate's plea challenging the bail granted to Arvind Kejriwal after it had allowed the urgent listing of the petition. The Court had stated that the stay on Trial Court order would continue till the pronouncement of the verdict.

On June 20, 2024, Special Judge, Rouse Avenue Court granted bail to Kejriwal. While granting bail, the ED had requested to keep the bail order in abeyance for 48 hours to allow the central agency to avail of legal remedies like moving the High Court in Appeal. However, the same was refused by the Trial Court.

Cause Title: Arvind Kejriwal v. Directorate of Enforcement (Diary No.: 27685 of 2024)