Despite SC Bail, Kejriwal to Stay in Jail

NEW DELHI: It was a bittersweet day for Delhi Chief Minister Arvind Kejriwal in the courts on Friday. While the Supreme Court granted him interim bail in the ED’s money laundering case, the Rouse Avenue court extended his judicial custody till July 25 in a corruption case under the CBI probe linked to the excise policy “scam”. Despite the relief, Kejriwal will remain in jail. The apex court’s verdict, however, triggered a political slugfest between the AAP and the BJP.

In a major relief to the AAP chief, the apex court granted him interim bail, raising questions on the legality and necessity of his arrest in March by the Enforcement Directorate in the excise policy case. A bench of Justices Sanjiv Khanna and Dipankar Datta also referred some questions on the ED’s power to arrest under Section 19 of the stringent Prevention of Money Laundering Act (PMLA) 2002 to a larger bench.

The apex court said that Kejriwal has “suffered incarceration for over 90 days” and has to be released on bail till the larger bench settles the issue. The bench also said that the court cannot direct an elected representative to step down and that the decision must be made by the CM himself.

Soon after the apex court granted interim bail to Kejriwal, the Rouse Avenue court extended his judicial custody in the CBI case till July 25. Kejriwal’s plea challenging his arrest by the CBI and subsequent three-day remand of the investigating agency is scheduled to come up for hearing before the Delhi high court on July 17.

In its interim bail order, the apex court said Kejriwal will not visit the CM office or Delhi secretariat during the interim release. It said that Kejriwal will be bound by the statement made on his behalf that he will not sign official files unless it is required and necessary for obtaining clearance/approval from the lieutenant-governor of Delhi.

The court said the chief minister should not make any comment with regard to his role in the present case and should not interact with any of the witnesses and/or have access to any official files connected with the case.

Reacting to the development, the AAP welcomed the interim order, saying "satyamev jayate" (truth alone triumphs). At a joint press conference, AAP leaders and city ministers Atishi, Saurabh Bharadwaj and Sandeep Pathak termed the top court order "historic" and a "victory of truth" and "defeat of the BJP's conspiracy" against him.

Atishi claimed the decisions of the Rouse Avenue Court and the Supreme Court prove the arrest of Kejriwal and the "witch hunting" of the AAP leaders and ministers for the last two years in the name of the "so-called" liquor scam is only a conspiracy hatched by the BJP.

"The BJP has hatched this entire conspiracy to stop the work of Delhi's AAP government. That's why it put the chief minister in jail in a false case without any evidence," she alleged.

The BJP, however, said the Supreme Court order is not a victory for the AAP as the court has put its "seal of approval" on Kejriwal being guilty in the excise policy case.

"The Supreme Court did not provide any relief on this prayer by him. Rather it found that the ED has sufficient evidence to prove the requirement of Section 19 of the PMLA that an accused is prima facie guilty. This is a seal of approval by the Supreme Court," BJP MP Bansuri Swaraj told a press conference.

Earlier, during the hearing, the Supreme Court said: “As we are referring the matter to a larger bench, we have, despite our findings on reasons to believe, considered whether interim bail should be granted to Kejriwal. Given the fact that the right to life and liberty is sacrosanct and Kejriwal has suffered incarceration for over 90 days and the questions referred to above require in-depth consideration by a larger bench, we direct Kejriwal to be released on interim bail…”

The apex court made it clear it is “not examining the question of bail, but we are only going into the question of what are the parameters of Section 19 (of the Prevention of Money Laundering Act), what is the jurisdiction of the court to go into the grounds of arrest?”

While reading out the operative part of the 64-page judgement, Justice Khanna said, “We have explained the difference between Sections 19 and 45. As far as Section 19 is concerned, it’s the subjective opinion of the officer but amenable to judicial review…Whereas Section 45 is concerned, it’s an exercise undertaken by the court itself and not by the officer. So, the power of the court is different from the power of the officer.”

The bench said: “The power of the court under Section 19, while exercising the power for examining the reasons to believe, is different from the power of the court under Section 45.”

“On the aspects of Section 19… after a detailed discussion, we have held that, as far as reasons to believe are concerned, they meet the parameters of Section 19,” the bench said.

“But having said so, we have raised an additional ground, which relates to the need and necessity of arrest…we felt that this question whether it can be read into Section 19, issue of need and necessity of arrest, especially in view of the principle of proportionality…we have referred that question to the larger bench,” it said.

The top court said it framed three questions in this regard. “Whether the need or necessity of arrest is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of PMLA? Whether need and necessity of arrest refer to the satisfaction of common parameters of arrest…or relates to other personal grounds and reasons regarding the necessity to arrest a person in the facts and circumstances of the case? And if the two questions are answered in the affirmative, what are the parameters and facts that have to be taken into consideration by the court while examining the question of need and necessity for arrest?”

On May 17, the top court had reserved its verdict on Kejriwal's plea challenging the legality of his arrest by the ED on March 21 in the case. The AAP chief has challenged in the top court the April 9 order of the Delhi high court that had upheld his arrest in the case.

The high court had upheld Kejriwal's arrest in the case, saying there was no illegality about it and that the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation. On June 20, the Delhi CM was granted bail by a trial court on a personal bond of Rs 1 lakh in the case. The ED, however, moved the high court the next day and contended that the trial court's order granting bail to Kejriwal was "perverse", "one-sided" and "wrong-sided" and that the findings were based on irrelevant facts.

The high court, on June 21, imposed an interim stay on the trial court's bail order till the passing of an order on the ED's application for interim relief. On June 25, the high court had passed a detailed order staying the trial court order.

Kejriwal was also arrested by the CBI on June 26 in connection with the corruption case related to the alleged excise policy scam.

The plea challenging his arrest by the CBI is pending before the high court.