Manas Dasgupta
NEW DELHI, June 25: The Delhi chief minister Arvind Kejriwal will have to remain in jail at least till the Supreme Court decides on his bail plea, after the Delhi High Court on Tuesday stayed the Rouse Avenue Court’s June 20 order granting him bail in the Delhi excise policy case noting that the trial court did not “appropriately appreciated the material on record” submitted by the Enforcement Directorate.
The High Court referred to certain remarks made by the trial court judge where it had observed that it was not possible to go through thousands of pages of documents filed by the respective parties. “The court of the opinion that such observation was totally unjustified and also reflected that the trial court has not applied it mind to the material placed before the court at the time of dealing with the bail application,” the High Court said.
“Accordingly the application (ED’s) is allowed. The operation of the impugned order is stayed,” the high court said acting on ED’s plea challenging the bail granted to the Chief Minister last week.
The High Court also took note of the submission made by Additional Solicitor General S.V. Raju that the trial court judge had not given them adequate opportunity to ED to oppose the bail application filed by the chief minister as per Section 45 of the Prevention of Money Laundering Act (PMLA). “The trial court ought to give adequate opportunity to the ED to advance it argument on the bail application,” the high court said.
The High Court argued that the lower court – Delhi’s Rouse Avenue Court – “didn’t apply its mind” when granting bail and pointed to what it said were lapses in judgement. These included not giving the prosecution enough time to argue the application and failing to properly discuss conditions for release in the Prevention of Money Laundering Act, under which Mr Kejriwal was charged.
“Averments and allegations made in the main petition (in which the prosecution challenged Mr Kejriwal’s bail order) require due consideration…,” the High Court said, declaring the lower court had also failed to “discuss the vicarious liability of Arvind Kejriwal under Section 70 of the PMLA.”
The focus now shifts to the Supreme Court and a hearing scheduled for Wednesday. The High Court had been approached last week by the Enforcement Directorate – the federal agency that arrested the AAP leader in March in connection with the liquor policy case. The ED filed a last-gasp petition challenging a city court’s regular bail order, which it called “perverse” and “flawed.”
Last Thursday Mr Kejriwal was given regular bail by the Rouse Avenue Court. The court accepted his argument that the case against him rested only on statements from former accused who have since turned government witnesses. “Circumstances have to be so intrinsically linked (as to) lead to the guilt. Statements by tainted persons discredit prosecution’s case. There is no evidence ₹ 100 crore came from ‘South Group’. There is no evidence,” the trial court said.
But the High Court in its order staying bail said, “Importantly, the Additional Solicitor General (ASG) referred to para 27 of the trial court order where the judge talks about mala fide by the ED. But this court believes that a coordinate bench of this court has said there was no mala fide on the part of the ED. The trial court should not have given any finding which is opposite to the finding of the High Court,” the court stated in its order.
“The trial court has not dealt with the argument of Section 70 PMLA as well. This court is also of the opinion that the Supreme Court granted bail to Mr Kejriwal for the Lok Sabha election.” “Once his plea challenging arrest has been dismissed by the High Court it cannot be said that his personal liberty was curtailed in violation of the law. The documents and arguments were not appreciated properly. Therefore, the impugned order is stayed,” the court added.
On the other hand, senior advocates Abhishek Singhvi and Vikram Chaudhari, representing Mr Kejriwal, had urged the High Court not to stay the bail order; they instead suggested that the court send him back to jail if it found overwhelming and cogent circumstances.
Presenting his case before the High Court, Mr Raju had said, “Material facts were not considered by the trial court. There cannot be a better case for cancellation of bail than this one. There cannot be greater perversity than this.”
“I was not allowed to argue fully. I was not given proper time of 2-3 days to file written submissions. This is not done. On merits, I have an excellent case. The trial court said ‘finish off in half an hour’ as it wanted to deliver the judgment. It did not give us full opportunity to argue the case,” he had said.
“I am making the allegations with full seriousness,” Mr Raju said, adding that he was denied the opportunity to present his case, as provided by Section 45 of the Prevention of Money Laundering Act (PMLA).
The trial court did not even look at his reply on the ground that it was bulky, he had said. He also mentioned that the trial court had given findings contrary to those of the High Court while upholding Mr Kejriwal’s arrest. “There is evidence that Kejriwal demanded ₹100 crore but it was not considered by trial court,” he said.
Refuting Mr Raju’s claims, Mr Singhvi said, “This matter lasted for five hours (before the trial court). Nearly 3 hours 45 minutes were taken by Mr Raju (ED) and then trial judge is faulted because she does not repeat every comma and full stop.”
He also called out the ED for attempting to malign the trial court judge by claiming she did not give the agency enough time to argue and did not consider material evidence. “It is extremely unfortunate the way Mr Raju has maligned the trial court judge,” he added.