Breaking: Delhi High Court Reserves Order In Arvind Kejriwal's Plea Against Arrest By ED

The Delhi High Court has reserved its order in Arvind Kejriwal's plea against arrest by the Enforcement Directorate (ED) in a money laundering case related to the excise policy scam. 

During the hearing, Senior Advocate Abhishek Manu Singhvi, Senior Advocate Vikram Chaudhari, and Senior Advocate Amit Desai appeared for Kejriwal, and Additional Solicitor General (ASG) SV Raju, along with Advocate Zoheb Hossain, appeared for ED. 

At the outset, Singhvi referred to a note he gave the Court on the last hearing and submitted, "This case reeks of timing issues. The timing issue ensures that the Petitioner is unable: (a) to participate in a democratic activity and (b) to try and disintegrate and demolish his party before the first vote is cast."

He submitted, "My second point is the unique feature of this case of no material in any manner supporting Section 50 of PMLA." Singhvi submitted that the Arrest was done without any inquiry. While referring to the judgment by the Supreme Court in the matter of Vijay Madan Lal, Singhvi argued, "No attempt is made to record a Section 50 statement even at my residence." He also referred to the judgment in the matter of Pankaj Bansal. Singhvi argued that the timing of arrest right after the Model Code of Conduct is to humiliate, insult, and disable him and his political party.

Singhvi argued, "In several statements, there will be nothing, Raghav Magunta, Sarath Reddy, and Magunta Reddy. Nothing against me. Step 2: Some of them were arrested. Step 3, first time they give statement against me. Step 4: They are given bail without any objection. Then they get pardon and approvership. Five is unique, one of them is a candidate from the ruling party in the current elections." "There is no material to show proceeds of crime by Kejriwal," he argued. 

He further submitted, "there is nothing in the grounds of arrest". Singhvi submitted, "There is clear vicarious liability. Please don't allow it to happen. Why? My Lord! Section 70 is clearly invoked by my learned friend, 70 cannot arise at all. It is a specific provision as per companies. Now, when a political party called AAP is a registered party under a different statute and when a party is registered under the Representation of People Act (ROPA), then a different statute which differently recognizes your entity status of political party, cannot be subsumed in the heading of company in a PMLA statute. This party already has an identity in statutes particularly governing parties....Second, there has to be a specific role of the Petitioner, which includes under Section 70 even for a company, which I am denying...So, this complete vicarious liability."

Singhvi concluded by submitting, "I have ended, I want to only say this, it is frequent that these matters are treated by the ED as normal. I am opposing the slightest delay; Your Lordship has been kind enough to hear us. Please hear my learned friend, Mr. Desai, for five minutes, and then your Lordships may hear the other side."

The ASG, however, opposed Desai's appearance. He contended, "There cannot be two lawyers arguing. Last time also I objected, Just because you are powerful you can afford three lawyers, three top lawyers who charge...that doesn't mean that you get the right to engage three lawyers in one Petition. No, Aam Aadmi is entitled to more than one lawyer. Why this exception?..You may be rich, you may claim to be Aam Aadmi, but you can't have three lawyers."

To this, the Bench of Justice Swarana Kanta Sharma said, "Mr. Desai, what you can do is, I want to finish this matter today. But I am going to hear them (ED) after lunch, and whatever you have to say, please give it in writing. Ok?"

Senior Advocate Desai agreed to it. 

ASG Raju, on behalf of ED, contended, "I am in a dilemma, whether the petition is argued as a Bail Application, quashing or discharge Application. I'll try to confine myself and deal with the Writ. There is some property which is already provisionally attached. We are wanting to attach some properties of Aam Aadmi Party. If we attach (properties), allegations will be made that Election ke time aise kiya (they did like this at the time of Election)."

"Today, as far as Petitioner is concerned, the investigation is not over. He has come at the beginning of investigation when he has just been arrested. Investigation is at a nascent stage," Raju submitted. Referring to the second remand Order, the ASG submitted, "He voluntarily accepts; please remand me further. Can he challenge the remand order? Or is it barred by waiver?"

The ASG contended, "Today we are on April 3. On March 28, a second remand order was passed. That has not been challenged. Third remand order of judicial custody has not been challenged. So today his custody isn't pursuant to Arrest or first remand Order, it's pursuant to April 1 Order, which has not been challenged." Raju contended that unless he challenges the subsequent Orders, it cannot be said to be illegal. He argued that this is a Bail Petition in the guise of Writ Petition, therefore, it should be rejected. "This is nothing but Bail Application to overcome the rigours of Section 45 PMLA," he added. 

Raju argued, "Supposing a political person commits murder two days before elections, this means he can't be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases, there is no infringement of the basic structure. I commit murder or rape, but I can't be arrested before elections? What kind of argument is this? This is a bogus argument. Bogus argument. Has to be rejected on the asking." 

"Whether a statement is to be believed or not is a matter of Trial," he submitted. The ASG argued, "There is a prima facie case of money laundering...today, the rigours of Section 45 will not apply because this is not a Bail Application."

Referring to the remand Order, ASG Raju contended, "This is not a mechanical Order. It is an order after application of mind, passed after verifying the case file." The ASG submitted, "Our case is that he (Kejriwal) is arrested because of his role in dual capacity. Individually, also he is involved."

On the aspect of Section 70 PMLA, the ASG contended, "Our case is that the Aam Aadmi Party is an association of persons/individuals. Company is not only a private limited it also an association of persons." While concluding the submissions, the ASG submitted, "Rest all I have given in my counter Affidavit."

After hearing the arguments at length, the Court reserved the Order in Kejriwal's plea.

Pertinently, on April 1, Kejriwal was granted judicial custody till April 15. It is also to be noted that on March 27, the High Court had refused to granted any interim relief to the Chief Minister of Delhi. The Court had directed ED to file its reply in the interim Application as well as the main Writ Petition by April 2 and had clarified that no adjournment shall be granted on the date of the final hearing, i.e., April 3.

On March 28, the CM had made submissions in Hindi after taking permission from the Trial Court despite his Lawyers being present. Kejriwal had said a smokescreen of the AAP being corrupt has been created before the nation, and he had added that he is ready to face the ED probe. The submissions were made when the CM was produced on expiration of his ED remand. 

The AAP had first moved the Apex Court on Thursday (March 21) late in the evening after the ED arrested Kejriwal. The agency took him to its headquarters in Central Delhi. The Delhi CM's legal team had attempted to get a late night hearing from the Supreme Court. However, no special Supreme Court Bench was set up on Thursday night to hear the CM's plea challenging his Arrest.

The Arrest of the first sitting Chief Minister came hours after the Delhi High Court had refused to grant protection to the AAP national convenor from any coercive action by the agency.

Cause Title: Arvind Kejriwal v. Directorate of Enforcement [W.P. (CRL)-985/2024]