New Delhi: The Supreme Court on Friday told the Enforcement Directorate that it may consider the question of interim bail for Delhi Chief Minister Arvind Kejriwal due to the Lok Sabha elections. The apex court was hearing a plea by Kejriwal challenging his arrest by the ED in a money laundering case stemming from the alleged Delhi excise policy scam.
A bench comprising justices Sanjiv Khanna and Dipankar Datta told the additional solicitor general S V Raju, representing the ED, to be prepared to argue on this question on Tuesday, and also asked whether Kejriwal should be signing official files. Raju replied that this statement from the apex court may be blown out of proportion and cited statements made by AAP leader Sanjay Singh after his release from jail.
Justice Khanna said that because of elections the court will hear Kejriwal's plea for interim bail and added, "let us be very clear on that".
Opposing any relief for Kejriwal, Raju pointed out that timing of Kejriwal's arrest just before elections is one of the grounds in his petition. Kejriwal has questioned his arrest just before the elections.
"For interim bail…both sides, we may hear you on that. We will hear on Tuesday," said Justice Khanna. He also asked Raju to take instruction on conditions if court were to allow interim bail for Kejriwal due to the elections and assured Raju that the court will hear him on the aspect of interim bail. Raju vehemently pressed that the case has been fully argued on Kejriwal's challenge to his arrest.
Senior advocate A M Singhvi represented Kejriwal before the top court. "We may grant, we may not grant…", said Justice Khanna. He reiterated that the court will hear ED on the aspect of interim bail and asked a second question, "because of the position he holds whether he should be signing any files….signing official file…".
Justice Khanna reiterated that the court may grant Kejriwal bail or it may not and added, "have been open about it and do not assume anything".
Raju said they have not filed bail application and vehemently pressed that the court should hear him fully before passing any interim order.
"Yes, yes", said Justice Khanna and also told Singhvi to not read into it. “We are not saying either way…”, said Justice Khanna.
During the hearing, Singhvi argued that a political party cannot be brought under the purview of the PMLA. Justice Khanna asked if AAP, as a juristic person, can ever be arrested and whether it has been impleaded as a party.
Singhvi said no and vehemently pressed that simply mentioning a company does not justify the arrest of its managing director unless additional evidence is presented. Singhvi said a political party will not come under Section 70 PMLA as it specifically mentions "company", which is defined in the section to mean "anybody corporate and includes a firm or other association of individuals".
Singhvi stressed that Section 70 was intended to deal with corporates and a political party cannot be regarded as an "association of individuals." Expressing unwillingness to accept this contention, Justice Khanna said: "It is a little difficult...a society is also an association of individuals. Can it be said that a society won't come under the provision?"
Singhvi insisted that if the party were to fall under Section 70, Kejriwal cannot be arrested. The bench replied that the person responsible comes at the forefront, invoking the concept of vicarious liability.
"You are wrong here Mr Singhvi”, said Justice Khanna, adding that the person in charge and responsible is also considered culpable, and it is for them to establish that the offense was committed without their knowledge.
The bench observed that neither the trial court nor the present court can assume the role of the arresting officer and make decisions based on hypothetical evidence. Raju said ED summoned Kejriwal nine times and added that evasive answers can't be a ground to arrest but can be taken into consideration by the agency.
Regarding Kejriwal’s arrest, Raju said it was not solely the opinion of the investigating officer and it was reinforced by a magistrate authorised by the court.
He said Kejriwal also moved the Delhi High Court seeking interim relief but the court rejected his plea. Raju said the court had said that there was an application of mind, and only after that, the arrest was carried out and he did not file for anticipatory bail. The bench said that he did not anticipate arrest.
