Kejriwal’s remand in ED custody ends Thursday when he will be produced before the Rouse Avenue Court.
The single-judge High Court bench of Justice Swarana Kanta Sharma, in its order, noted that the prayer seeking Kejriwal’s release in the main petition challenging his arrest by the ED and subsequent remand and the prayer sought in the interim relief application are “similar and identical”.
“Thus, deciding the application for interim release of petitioner would amount to disposing of and granting relief sought in the main petition in prayer. Further, any release order from custody will amount to enlarging the accused/petitioner on bail or interim bail, as an interim measure,” Justice Sharma said, adding that the court’s writ jurisdiction under Article 226 of the Constitution is “not a ready substitute” for seeking bail under the Code of Criminal Procedure (CrPC).
With respect to the nature of the issues raised in the matter, Justice Sharma said that the ED has to be granted an opportunity to file a reply for “effective representation” and declining it would amount to “denial of fair hearing as well as violation of one of the principles of natural justice… which is applicable to both the parties and not one”.
The bench said it “cannot presume” that the ED will have no reply to file and will be bound only by the contentions raised before the trial court.
“…to reach a conclusion as to whether the petitioner herein is entitled to immediate release or not, this Court will necessarily have to decide the issues raised in the main petition, as those issues are the edifice of arguments of the learned Senior Counsel for the petitioner seeking immediate release of the petitioner,” the bench said, adding that the matter will be taken up on the next date of hearing wherein no adjournments will be granted.
Earlier, opposing Kejriwal’s “illegal” arrest by the agency and subsequent remand, Senior Advocate Abhishek Manu Singhvi had said that the arrest was intended to disable him from any active role in politics, further impinging on the level-playing field and the Basic Structure of the Constitution.
“This is a vital matter because it impinges on the Basic Structure of the Constitution. A sitting Chief Minister was arrested on the cusp of elections after the Model Code of Conduct (MCC) was in place. The heart of the matter or democracy is the level-playing field which means free and fair elections. If you do anything to make the level-playing field uneven, you are impinging on the Basic Structure of the Constitution,” Singhvi said.
“This arrest, after the MCC is in place, is intended to disable a person from any active role in politics in terms of campaigning; to give a body blow to the party concerned so that it becomes helpless, and to score some degree of victory before the first vote is cast,” he said.
The threshold of arrest, he said, under Section 19 (power to arrest) of the Prevention of Money Laundering Act is very high because the threshold of granting bail under Section 45 of the Act is also very high.
“They say I have not cooperated. Non-cooperation is one of the most abused phrases in the recent past since ED has been hyper active under PMLA… Can you say I will arrest you because I am exercising my right against self-incrimination? This will turn Articles 20 and 21 of the Constitution on its head… If you want to investigate me on my role two months before elections, is it not directly ‘no necessity to arrest’? Even my role you have a doubt. What is it that you could not have done without my arrest? Nothing… You are at a non-trial preliminary intermediate stage. Even assuming all this material is there, it is only alleged. You have to show me the necessity of arrest,” he said.
Referring to the statements of persons who were earlier arrested in the case and later came out and made statements against Kejriwal, Singhvi said that in the first step, there is nothing stated against his client.
“Then after three or four statements, these persons are arrested. They ‘suffer in jail for a while’, ‘put under deep pressure’ and are ‘made to apply for bail’ and thereafter the ED tells the court that there is no reason to oppose the bail and they get bail,” he said.
They come out and make a statement against the CM, and then they get pardoned, he said, emphasising that “there is no corroboration for any of such statements”, “blowing to smithereens the concept of credibility”.
He said it is “easy to extract incrimination” out of statements of co-accused because the co-accused are concerned about themselves. “Very less weight” must be given on their statements “unless you have clear corroboration”, he said.
Singhvi said there is no requirement for issuance of notice either on the main petition or the plea for interim relief since the grounds of arrest as well as the remand order are on record, clearly reflecting the agency’s stand.
He said the order notes that the grounds of arrest are frozen and “it is a delaying tactic which is reflective of malicious intent” on the ED’s part to stall or delay any order being passed on the CM’s release. He said there is no need for a reply.
Opposing Kejriwal’s plea, Additional Solicitor General S V Raju, appearing for the ED, said he requires time to file a reply to both the main matter and the application for interim relief.
“If I am not entitled to file a reply, then there is no need to hear me. I can’t be deprived of my right to file a reply. The right to be heard includes the right to file a reply. It was a deliberate delay on their part where the copy of the petition was given to me at the last minute,” Raju said.
He said a copy was sought from the other side and emails were sent to them on March 24 and March 25, asking for a copy but they (petitioner) deliberately did not provide a copy. He said the reason behind this was that the other side did not want him to be prepared.
Shadan Farasat, also appearing for Kejriwal, said they had moved the HC on Saturday (March 23) for immediate hearing and sought to mention the matter before the Acting Chief Justice.
“We were informed by the Registry in the evening that the matter will be taken up today as the first item on account of urgency. Thereafter, the Registry was closed. The minute the objections were marked, we cleared them and re-served the parties. It is on no account of the petitioner that there has been a delay in the matter. A delay very strongly prejudices us… How could we know what defects will be marked? The practice in this court is that a petition is supplied when the defects are cleared,” Farasat said.
Raju said, “They are talking of a level-playing field? Where is the level-playing field when they have different standards… despite us sending them emails asking for a copy of the petition. If they wanted a genuine, fair hearing where we could have come prepared, they could have served us a copy of the plea on Saturday (March 23) itself… Look at the voluminous documents they have produced. If interim relief is granted, it will tantamount to allowing the main petition, that’s why I will need more time to prepare.”
Meanwhile, the High Court will hear Thursday a PIL calling upon the Centre, State of Delhi through Chief Secretary and the Principal Secretary to the Lieutenant Governor to answer under what authority Kejriwal is holding the post of Chief Minister. The PIL, filed by one Surjit Singh Yadav, also seeks his removal from the post.