SC allows Kejriwal to file fresh plea challenging Delhi HC order reversing bail

The Supreme Court on Wednesday allowed Delhi chief minister Arvind Kejriwal to withdraw his petition against the interim stay on his bail granted by the Delhi high court last week and file a fresh petition to also include the challenge to the HC’s final order of June 25 order reversing the bail in the Delhi excise case probed by the Enforcement Directorate (ED).

A vacation bench of justices Manoj Misra and SVN Bhatti passed the order after a request for withdrawal was made by senior advocate Abhishek Manu Singhvi appearing for the the Aam Aadmi Party (AAP) national convenor.

Singhvi pointed out that since the passing of the June 21 order by the HC when an interim stay was granted on the bail order passed by the trial court on June 20, subsequent developments have taken place as the high court has pronounced its final order on June 25 and Kejriwal has been arrested by the Central Bureau of Investigation (CBI) in connection with the Delhi excise policy case.

“There will be no option for me but to withdraw and challenge both the June 21 order and the June 25 order of the HC in a new special leave petition (SLP),” Singhvi said. Referring to the latest development involving CBI arrest, he said, “Events are overtaking us every day. In the case where CBI interrogated us last in 2022, we are now being arrested.”

Additional solicitor general (ASG) SV Raju appearing for ED pointed out that the petitioner can only challenge the June 25 order as the challenge to June 21 order will not survive. However, Raju had no objection to the petition being withdrawn.

The court said, “The petition is allowed to be withdrawn,” allowing Kejriwal to file a fresh petition repeating the same prayers contained in the present petition as well as challenging the fresh order of June 25 setting aside the bail granted by the trial court.

Singhvi said that the June 21 order staying the bail order was wrong in law as no reasons were given and even without the trial court order being produced before the HC, the order was stayed, initially by an oral observation and later by a written order while reserving the judgment.

Solicitor general, also appearing for ED, informed the court that a response has been filed by ED to Kejriwal’s petition. The ED’s reply justified the stay granted by the HC claiming that the trial court order was “perverse” as it failed to satisfy the requirements for grant of bail under Section 45 of the Prevention of Money Laundering Act (PMLA) and not allowing the ED counsel to make complete submissions.

The response filed by ED said, “The order (of the trial court) reflects that the order has been passed hurriedly and admittedly without perusing the records of the case.” To be sure, this ground was cited by the HC as one of the grounds for setting aside the bail on Tuesday. The agency further claimed, “Undisputed facts stated in the petition regarding the court requiring the ASG (SV Raju) to cut short his arguments and the order itself reflecting the fact that the judge chose not to go into the record shows complete non-compliance with the mandatory pre-requisite contained in Section 45 of the Act.”

The HC vacation bench of justice Sudhir Kumar Jain on Tuesday said, “There is factual force in the arguments advanced by (ASG) SV Raju that the vacation judge (of trial court) has not passed the order after due consideration of the entire material on record.” The HC noted that the trial court order did not make any mention of the federal agency’s contention that Kejriwal, being the in charge of AAP, was vicariously liable for the offence of money laundering committed by the political party. Further, it said, the trial court did not “sufficiently” and “adequately” deal with federal agency’s contentions on the aspect of recovering the proceeds of crime qua the CM.

Allowing ED’s plea to stay the bail order, the HC observed that the trial court vacation judge in the opening part of the order expressed her inability to go through entire documents stated to have been running into thousands of pages and said, such observations were “uncalled for, unwarranted and out of context”.

The trial court in its order of June 20 held in favour of Kejriwal citing a lack of direct evidence implicating the CM in the money laundering case and a potential bias in the ED’s approach. The special 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. It further noted ED’s silence on how the proceeds of crime were allegedly used in the Goa assembly elections by the AAP in 2022.