Delhi high court halts chief minister Arvind Kejriwal’s release from jail

The Delhi high court on Tuesday halted the release of chief minister Arvind Kejriwal in the excise policy case by staying the trial court’s order granting him bail, in what has come as a setback to the ruling Aam Aadmi Party (AAP), changing the course of the ongoing legal dispute.

A vacation bench of justice Sudhir Kumar Jain allowed Enforcement Directorate (ED)’s plea challenging the bail order saying that the trial court did not appropriately appreciate the “material documents” submitted by the federal agency. The HC had stayed the trial court order on Friday while reserving its order.

Kejriwal had approached the Supreme Court against the HC’s interim stay and a vacation bench headed by justice Manoj Misra posted the matter for further hearing on Wednesday directing that a copy of the HC judgment, if pronounced, be filed in the top court. The top court had also observed that it was “unusual” that in a bail matter, order was reserved instead of being pronounced the same day.

The HC order said, “Ultimately this court has decided that the vacation judge while passing the order did not appropriately appreciate the material documents submitted on record and the pleas taken by the ED.”

Justice Jain also expressed displeasure regarding the trial court’s observations that it was not possible for the court to consider “thousand pages of documents” while dealing with the bail application. The court said that the same were “unjustified” and “uncalled for” and showed that the vacation judge did not apply its mind while granting bail to the CM.

In its ruling, justice Jain also observed that the trial court should have given proper opportunity to the ED to present their case and recorded its satisfaction under Section 45 of the Prevention of Money Laundering Act (PMLA) that “there are reasonable grounds for believing that Kejriwal is not guilty of such offence”.

The court said that the trial court in its 25-page order also did not deal with the aspect of the AAP chief being vicariously liable for the offences committed by the party. It further said that the trial court should have recorded its satisfaction under Section 45 of the PMLA that there are reasonable grounds for believing that Kejriwal is not guilty of such offence.

The order was reserved on Friday, after the HC agreed to take up the matter on an urgent mentioning by the ED and even halted the release of Kejriwal from jail after he was granted regular bail by the trial court on June 20.

ED moved the Delhi high court in less than 24 hours after the Delhi court’s bail to the AAP national convenor claiming the trial court order to be “perverse”. The federal agency’s petition painted a picture that bail order was passed without granting adequate opportunity to the probe agency to oppose CM’s bail application despite all courts up to the Supreme Court having given judicial imprimatur regarding the commission of the offence of money laundering against the accused in the scam involving alterations in the now-scrapped Delhi excise policy of 2021-22 to benefit certain liquor traders.

The petition underscored that special judge (vacation judge) Niyay Bindu, contrary to the well settled legal position, refused to stay the bail order for a short period to enable the probe agency to challenge the ruling before the higher court.

The Delhi court’s order paved way for Kejriwal’s release citing a lack of direct evidence implicating the CM in the money laundering case and a potential bias in the EDs approach. The vacation judge pointed out that the investigating officer (IO) revealed that only ₹40 crore out of the alleged ₹100 crore had been traced, with no clear timeline for tracing the remaining amount. The 25-page order noted ED’s silence on how the proceeds of crime were allegedly used in the Goa assembly elections by the AAP in 2022. The court found it troubling that after nearly two years, a significant portion of the alleged amount remained untraced.

Having heard elaborate arguments from additional solicitor general (ASG) SV Raju appearing for ED and senior advocates Abhishek Manu Singhvi and Vikram Chaudhary appearing for Kejriwal, the HC reserved orders granting both sides time till Monday to file short submissions.

Kejriwal has been in custody since March 21 following his arrest by ED, apart from a 21-day interim bail in May granted by the top court for Lok Sabha election campaigning.

ED had urged the court to stay the order of the trial court for its “perverse findings” on “facts” as well as “law” after the judge admitted that she had not examined the material placed on record by the ED that demonstrated the CMs “neck deep involvement” in the offence of money laundering. It further alleged that the trial court did not deal with the twin conditions required to grant bail under Section 45 of PMLA. Under this, the judge has to form an opinion that the accused is not guilty of the alleged offence and is not likely to commit any offence during the period of bail.

The case against the CM stems from allegations of irregularities in Delhi’s now-scrapped excise policy of 2021-22, which the Central Bureau of Investigation (CBI) began probing following a recommendation by Delhi’s lieutenant governor in July 2022. Kejriwal was the third top AAP leader arrested in this connection. Former deputy CM Manish Sisodia has been in jail since February 2023, and Rajya Sabha MP Sanjay Singh was granted bail by the top court in April this year after six months of custody.