Delhi High Court orders interim stay on Arvind Kejriwal bail order

The Delhi High Court on Friday directed an interim stay on the trial court order granting bail to Aam Aadmi Party (AAP) leader Arvind Kejriwal in the money laundering case connected to the now scrapped Delhi excise policy..Justice Sudhir Kumar Jain passed the order after the Enforcement Directorate (ED) moved the High Court challenging the trial court order.The Court said that it is reserving the matter for a detailed order on the prayer for stay of the trial court order. It also said that the same will be pronounced in two to three days. In the meantime, the operation of trial court's bail order will remain stayed, the single-judge directed."I am reserving the order for two to three days. Till pronouncement of the order, the operation of the trial court order is stayed," the Court said.The final order on stay will be passed after two to three days.Pertinently, during the hearing today, the ED placed extensive reliance on live court reporting by Bar & Bench to seek a stay on the bail order.He said that he was not adequately heard by the trial court and the same was in violation of the mandate under Section 45 of the Prevention of Money Laundering Act (PMLA).To buttress his arguments, he cited the tweets and reports of Bar & Bench on the proceedings that transpired before the trial court on Thursday."Section 45 of PMLA says Public Prosecutor should be given proper opportunity to be heard. I was not heard properly. When the turn of my learned friend (Sr Adv Chaudhari) came. He said he will be brief. He did not address the court in detail. But I said I will give a detailed reply because he hasn't. He had glossed over everything. When I argued the Court said be brief," the ASG said.Pertinently, the ASG argued that this chain of events that happened before the trial court was reported by Bar & Bench."This is reported by Bar & Bench. They have reported it. He (Chaudhari) never urged a lot of points. I was not given a proper opportunity after their rejoinder. It is borne out not by me but even Bar & Bench says my arguments were cut short," Raju argued.He further said that Kejriwal's counsel was not hurried by the judge."ED was deprived of the proper opportunity. The judge hurried the hearing when we were arguing. No such thing was said when they were arguing," it was stated."I am not saying all these things. Bar & Bench has said it. The trial court order needs to go on this ground alone," he added..Background.The trial court had on Thursday granted bail to Kejriwal and ordered his release subject to bail bond of ₹1 lakh.Special Judge Niyay Bindu of the Rouse Avenue Court said that ED has failed to give any direct evidence linking Kejriwal to the proceeds of the crime and has also failed to show that another accused, Vijay Nair, was acting on Kejriwal's behalf.The special judge also said that the ED was acting with bias against Kejriwal. Though the order was passed on Thursday, the copy of the same became available only on Friday.Kejriwal was arrested by the ED on March 21 on allegations that he was part of a conspiracy to intentionally leave loopholes in the now-scrapped Delhi Excise Policy for 2021-22, to benefit certain liquor sellers.ED has alleged that kickbacks received from liquor sellers were used to fund the Aam Aadmi Party's (AAP) electoral campaign in Goa and Kejriwal being the National Convenor of the party is both personally and vicariously liable for the offence of money laundering.Kejriwal has denied the allegations and has accused the ED of running an extortion racket.Other AAP leaders arrested in the same case include former Deputy Chief Minister of Delhi, Manish Sisodia and Member of Parliament Sanjay Singh.Singh is currently out on bail though Sisodia continue to languish in jail.Supreme Court in May had granted interim bail to Kejriwal to allow him campaign for the Lok Sabha elections. He returned to jail on June 2 after the interim bail period allowed by the top court came to an end.He had also filed an application seeking interim bail for seven days on medical grounds. However, the same was rejected by trial court on June 5.Subsequently, his regular bail plea on merits was allowed by the trial court prompting the ED to approach the High Court..Arguments today before Delhi High Court .During the hearing before the High Court today, Additional Solicitor General SV Raju contended that he was not heard properly by the trial court though the same is a mandate under the Prevention of Money Laundering Act (PMLA). The ASG also said that the trial court failed to consider the documents submitted by ED. "Kindly have the look at the trial court order. The court does not hear us, does not look at the documents given by us and says it is voluminous. Court says bulky documents have been filed. There can't be any more perverse order than this," it was contended.He further claimed that bail was granted based on perverse material. "There are two ways on which bail order can be set aside. I am saying it is a perverse order as irrelevant material was considered. This is totally perverse order," Raju said.The judge admitted in the order that she did not examine the documents, the ASG claimed."A judge who admits that I have not read the papers and granted bail, there can't be a more perverse order than this. On this ground alone, the order needs to go," he said.He also submitted that the Delhi High Court had earlier taken into account statements made by approvers while reject a plea filed by Kejriwal challenging his arrest."You are saying the points which were elaborately dealt with by the HC have not been considered (by trial court)," the High Court asked."Yes," the ASG said.It was also argued that as per Section 45 of PMLA, the trial court while considering bail in money laundering cases, has to give a prima facie finding that the concerned accused is not guilty. "The trial court has no discretion in this case where Section 45 PMLA is involved. Court has to give a prima facie finding that he is not guilty of the offence. Para 15 of the trial court order is contrary to Section 45 PMLA. In grant of bail there is no discretion. This paragraph is wrong," the ASG submitted.There has to be finding that he is not guilty and there is no such finding in this case, he said. "There cannot be a better case for cancellation of bail," he underscored..He also said that Kejriwal holding the CM post would be no ground to grant bail."Holding a constitutional chair is a ground for bail? That means every minister will be granted bail. You are a CM so you will be granted bail? Unheard of! There cannot be anything more perverse than this," it was contended.Senior Advocate Abhishek Manu Singhvi, appearing for Kejriwal, said that ED argued for 3 hours and 45 minutes before the trial judge. "This matter last for five hours (before trial court. Nearly 3 hours 45 minutes were taken by Mr. Raju and then trial judge is faulted because she does not repeat every comma and full stop," Singhvi said.He also questioned the government agency's attempt to malign the judge. "There is misconception about what a bail hearing should be like. Just because there is a political antagonism involved and that if all the commas etc are not dealt with by the judge, it gives Mr Raju right to malign the judge. This is deplorable, sad. it should never have come from a govt authority," Singhvi argued.As regards the findings in the earlier Delhi High Court judgment of Justice Swarana Kanta Sharma, the Senior Counsel pointed out that the same were made in a petition by Kejriwal challenging his arrest and not in a bail petition. "They say Supreme Court has not reversed Justice Swarana Kanta Sharma's judgement and, therefore bail can never be granted. Justice Sharma and Supreme Court were dealing with legality arrest not bail. It is so elementary that it is elemental. Justice Sharma in her order specifically says that 'I am not dealing with bail but arrest'. ED argues for more than 20 minutes (here) on this aspect but forgets to mention this point," Singhvi highlighted.Singhvi also pointed out that the matter regarding legality of arrest is still pending before the top court."The judgment has been carried to Supreme Court. The Supreme Court notes in May 10 order, "leave granted". Leave against what? Against Justice Sharma's order. They have argued as if the judgement is the last word and final. It is under active consideration of the Supreme Court and the order is reserved," he pointed out.He also highlighted how the Supreme Court had granted liberty to Kejriwal to approach the trial court for bail and hence, Justice Sharma's order on legality of arrest cannot be considered final. "Supreme Court gave express liberty to the trial court to consider the bail application. The Court expressly said you can approach the trial court for bail. My question is if Justice Sharma's judgement was final as suggested by ED, why this express liberty given by Supreme Court. If the trial court could not decide bail unfettered by Justice Sharma's order or other orders then what was the point in Supreme Court giving liberty for going for bail," Singhvi demanded. Singhvi also addressed the ED's argument that the trial court did not consider the agency's arguments."Every time it is said the trial court did not note that argument or considered it. The trial court does not need to write a essay. There is no perversity. I may write differently, you may write differently, this is not perversity. I may even write wrongly but that is not perversity," he said.Unless the court says 2+2=6, there is no perversity, Singhvi underscored.He also questioned the urgency shown by ED in getting the bail order stayed."At the worst if the stay application is denied today and tomorrow the same is allowed. What will be the problem? The problem is that for the ED, Article 21 is non-existent. The liberty of a person is very very low in the eyes of the ED, if it exists at all. They are turning the law on its head. Stay is absolutely not on. Stay would send me back to jail," he said..Singhvi also pointed out how co-accused secured bail after they gave statements against Kejriwal."Buchi Babu makes a statement against me in custody and he gets bail immediately. Then something very interesting happens. Magunta Reddy gives a statement totally in my favour. He has not been arrested. Now, this Magunta Reddy, his son (Raghav Magunta) is arrested. He wants to get out of jail desperately. He says his wife attempted suicide. This attempted suicide application is opposed by ED. Immediately, the desperate father (Magunta Reddy) implicates me. On the very next day, his son gets bail on the no objection of ED. This is how the ED functions. Subsequently, Raghav Magunta gets absolute bail and then he is pardoned," Singhvi submitted.In this regard, he also highlighted the conduct and statements of Sarath Reddy."First, he says nothing incriminatory. He makes 9 statements pre-arrest and post-arrest till April 2023. None of them implicate me. ED puts them into unrelied documents. After 9 statements, he implicates me. He then gets bail on ground of backpain," Singhvi pointed out.He also rebutted ED's argument that the trial court did not comply with Section 45 of PMLA on existence of prima facie case. "There were five-and-half hours of arguments (before trial court). The ratio is 4:1. Mr Raju took 4 (hour), Mr. Chaudhari (Kejriwal's counsel) took 1 (hour). The Court has applied correct consideration of Section 45 PMLA. The High Courts and Supreme Court have said Section 45 is not a bar on bail," he argued..Pertinently, he argued that interim stay on orders granting bail is done in cases relating to terrorists etc. who are dangerous or who are likely to flee after securing bail."The law totally bars an 'interim, first day, without reply' stay of order granting bail, unless it is of some terrorist or a person who is about to flee which will make the case impossible to try," he underscored..Senior Advocate Vikram Chaudhary, who also appeared for Kejriwal, countered the ED's submission regarding non-compliance with Section 45 of PMLA."Their argument is today concerned with alleged perversity in the order. They say Section 45 twin conditions are not satisfied. He (ASG) says he was not given fair opportunity and that irrelevant materials were considered. On all the three aspects there are findings by the learned trial court. In para 24, the court notices that ED has failed to clarify as to how much time is required for tracing the remaining amount of ₹60 crore," he contended. He further said that the trial judge had recorded every submission of the ASG, albeit in her own way."Human mind does not work in compartments. I am saying first 15 pages of the order records everything in the judge's own manner. If they have to argue for hours to make a case of perversity in the order then there is nothing in it," Chaudhary said.He also said that ED has no evidence against Kejriwal aside from approver statements."What is their direct evidence? It is statements. There are findings of the court, how can it be termed perverse? These findings are after consideration of materials," it was argued.