The Supreme Court forewarned the Enforcement Directorate (ED) on Friday that it may “consider” granting interim bail to Delhi Chief Minister Arvind Kejriwal in the excise policy case due to the ongoing Lok Sabha election.
“Let me make it clear, we may consider interim bail because of elections,” Justice Sanjiv Khanna informed Additional Solicitor General S.V. Raju, appearing for the ED.
Justice Khanna, heading a two-judge Bench comprising Justice Dipankar Datta, pointedly asked the ED when the polling phase in Delhi was scheduled.
Senior advocate A.M. Singhvi, for Mr. Kejriwal, said the polling was in the sixth phase on May 25. Campaigning would cease on May 23.
The judge said the court was openly communicating the possibility of interim bail for Mr. Kejriwal, who was arrested on March 21, barely days after the Model Code of Conduct for the general election was declared on March 16. He is currently on his fifth stretch of remand till May 7.
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March 16 was the last of the nine times the ED had summoned him for questioning at its offices. The ED team had swooped down on the Chief Minister’s residence on March 21, hours after the Delhi High Court refused to grant him protection from arrest. They had questioned him for several hours, culminating in his arrest and remand.
The court asked the ED to address arguments on whether Mr. Kejriwal could sign files. He is the first sitting Chief Minister to be arrested, and continues to hold that office.
The judge cautioned both Mr. Raju and Mr. Singhvi not to “assume anything” on the question of interim bail. Justice Khanna said the court did not want to catch the ED by surprise on the next day of hearing scheduled on May 7.
“We may or may not grant interim bail because of the elections. Do not assume anything. Do not read anything into it. We are not saying anything either way,” Justice Khanna said.
The hearing saw Mr. Singhvi wind up his submissions with “we are at a time when liberty particularly matters, though it matters all the time”.
In the previous hearing, the court had questioned the timing of Mr. Kejriwal’s arrest — almost two years after an FIR was registered in the case.
The court had made it clear that “life and liberty were important”.
Mr. Kejriwal had submitted that his arrest was an attempt by the BJP, using the ED as its “tool”, to prevent him from campaigning for the Aam Aadmi Party during the election. The Chief Minister said his arrest was a ploy to crush opposition to the ruling party at the Centre and ride roughshod over the principles of free and fair polls.
The ED had countered that “criminal” politicians cannot get immunity from arrest.
During the hearing, Justice Khanna observed there was no CBI prosecution yet against Mr. Kejriwal. Mr. Raju replied the investigation was on. Mr. Kejriwal had contended that his name did not figure in the First Information Report, the Enforcement Case Information Report, the prosecution complaints, the statements of the star witnesses or in the CBI chargesheets in the case. There was no new material collected against him over the span of two years since August 2022, when the FIR was filed.
The court questioned whether the ED had objectively weighed the “entire material”, both in favour of and against Mr. Kejriwal, before coming to the conclusion that there were reasons to believe him guilty of the offences under the Prevention of Money Laundering Act (PMLA). Mr. Raju told the court that the Central agency had material against him.
The court said arrest under Section 19 of the PMLA required enhanced thresholds, including material proof pointing to nothing less than guilt of the person the ED intended to arrest.
Justice Khanna said it should not be that the investigating officer (IO) had only considered material against Mr. Kejriwal and pushed away other material supporting his non-involvement. Mr. Singhvi had argued that several statements by co-accused-turned-star witnesses did not feature the Chief Minister.
Mr. Raju said the IO could ignore “irrelevant” material. He said it was for the probe agency to decide what should be considered as material proof in a case.
