In a massive blow to Delhi Chief Minister Arvind Kejriwal and his party AAP which is going to the Lok Sabha polls beginning next week, the Delhi High Court on Tuesday dismissed a plea filed by him, challenging his arrest by the Enforcement Directorate (ED) in a money laundering case stemming from the alleged liquorgate scam case saying there is no contravention of legal provisions.
Justice Swarana Kanta Sharma upheld his arrest and subsequent remand orders of the trial court, including the order through which Kejriwal was sent to judicial custody, holding that ED was able to place enough material, statements of approvers and the AAP’s own candidate stating that Kejriwal was given money for Goa elections.
The High Court order also chastised the Aam Aadmi Party (AAP) national convenor for questioning the timing of his arrest and underlined that an investigation against the “classes and masses” cannot be different. The court rebuked Kejriwal for “casting aspersions” on the judicial process with his claim about an approver in the case against him making donations to the BJP through electoral bonds, saying the law relating to approvers was over 100 years old and not enacted to falsely implicate the politician.
In its 106 pages judgement, Justice Swarana Kanta Sharma said, “… the arrest of petitioner Arvind Kejriwal was not in contravention with the law laid down by the apex court. Similarly, for the reasons recorded in para nos. 115 to 127, the impugned remand order dated 22.03.2024 passed by the learned Special Court does not suffer from any infirmity or illegality.”
“Consequently, since the arrest of the petitioner and the impugned remand order dated 22.03.2024 are held valid, the prayer seeking release of petitioner is also liable to be rejected.
“The petitioner or the respondent may find the court to be excessively harsh or lenient in their cases, however, the court has to dispassionately only keep its concern with application of law and decide the case before it accordingly. The courts have to only perform their duty of application of law irrespective of the political or financial standing of any person before it. At the same time, keeping in mind a fair trial and hearing to an accused,” the order said.
“Material collected by the ED reveals that Arvind Kejriwal conspired and was involved in formulation of excise policy and used proceeds of crime. He is also allegedly involved in personal capacity in formulation of policy and demanding kickbacks and secondly in the capacity of national convenor of AAP,” the judge said while pronouncing the order in open court.
She read out the judgement for 25 minutes and also explained certain portions of her decision in Hindi.
“This court wonders as to how the Directorate of Enforcement could have recorded the statement under Section 50 of PMLA of Kejriwal when he did not present himself before the investigating agency for the said purpose on nine occasions. After not presenting himself before the investigating agency on nine occasions, he cannot now turn back and argue that his statement has not been recorded under Section 50 of PMLA when it was he himself who refused to present himself before the Directorate of Enforcement that was calling him for exactly the same purpose for the last six months”, the order said.
However, the repeated non-compliance of summons for over a period of six months by the petitioner was indeed a contributing factor in his arrest
It further said the Directorate of Enforcement was in possession of material on the basis of which it had reasons to believe that the petitioner was guilty of offence of money laundering, it would have had no recourse available but to arrest the petitioner and to seek his remand so as to confront him with the statements of witnesses and approvers and other incriminating material collected during the course of investigation.
“…this court holds that judges are bound by law and not by politics. This court also holds that judgments are driven by legal principles and not political affiliations. It is important to clarify that the matter before this court is not a conflict between the Central Government and the petitioner Kejriwal. Instead, it is a case between the petitioner, Kejriwal and the Directorate of Enforcement. In such legal proceedings, it is crucial for the court to maintain its focus solely on the legal merits of the case. Political factors or dynamics should not and have never influenced the court’s deliberations or decision-making process,” the order said.
The court observed that political considerations and equations are not relevant to legal proceedings, clarifying that the present case was not a conflict between the Centre and Kejriwal but between him and the ED.
“Political considerations and equations cannot be brought before a court of law as they are not relevant for legal proceedings. In the case at hand, it is important to clarify that the matter before this court is not a conflict between the Central Government and petitioner Kejriwal. Instead it is a case between Kejriwal and Directorate of Enforcement,” Justice Sharma said.
The court said the statements of approvers against the AAP national convenor would be judged during trial as it cannot hold a mini trial at this stage. It added that Kejriwal would be free to cross-examine the approvers at the stage of trial.
After dismissal of the plea, the AAP will now move to the Supreme Court against the High Court order. Reacting to the judgement, AAP said, “We are in disagreement with the Delhi High Court order; it will be studied and we will move the Supreme Court against it.”
The BJP seized the Delhi High Court’s rejection of Kejriwal’s plea claiming the movement which began with the Indian Against Corruption stir has now turned into “Kejri Corruption Kranti”.
On the timing of Kejriwal’s arrest before the 2024 Lok Sabha elections, Justice Sharma said, “This court is of the opinion that the accused has been arrested and his arrest and remand has to be examined as per law and not as per timing of elections...Kejriwal must have been aware of the Lok Sabha dates, he would have known when the elections were to be held...”
On the matter of the statements of persons who gave statements against Kejriwal and later turned approvers and were granted pardon, the court however made it clear that approvers’ statements are recorded by the court and not by the probe agency.
The court said, “Granting of pardon is not domain of investigating agency, it is a judicial process. In a nutshell, approver ka bayan ED nahi likhti, bayan judicial magistrate likhta hai. Agar aap kehte hai Ki ye galat tha toh aap judge ke upar aspersions cast karte hain (The ED does not write the statement of the approver, the judicial magistrate does. If you say that this was wrong, you are casting aspersions over the judge).
“To cast aspersions on the manner of recording statements of approver would amount to casting aspersions on the judicial process. The law of approver is more than 100 years old. It is not a one year old law to suggest as if it was enacted to falsely implicate the petitioner. Who gives tickets for contesting elections or who purchases electoral bonds is not the concern of the court,” it said.
The court also said Kejriwal will be permitted to cross-examine the witnesses (including approvers) at the appropriate stage. “On the question of non supply of documents and earlier statements (of approvers), I’ve said that you’re entitled to inspect documents at the appropriate stage of trial. However, this is not the stage,” it said.
Rejecting the contention that the Chief Minister could have been questioned by the ED via video conference, Justice Sharma said,
“It is not for the accused to decide how the investigation is to be done. It cannot be as per the convenience of the accused. There cannot be any specific privilege for any one including the Chief Minister.”
‘In this court’s opinion, who gives tickets to contest elections against whom is not its concern,” the HC said on Raghav Magunta’s father joining ruling party alliance after making a statement against Kejriwal as claimed by him.
Justice Sharma speaks in Hindi: Ye petition bail ke liye nahi hai, ye sabit karne ke liye hai ki ye petition is illegal and Pankaj Bansal ke judgment ke contravention mein thi (This petition is not for bail, but to prove that the arrest was illegal and is in contravention of the judgement delivered by Justice Pankaj Bansal)
Additional Solicitor General (ASG) SV Raju, appearing for the ED, had argued,”Aam aadmi (common man) has to go behind bars if he has committed a crime, but because you are a Chief Minister you can’t be arrested? You will loot the country but no one can touch you because the elections are coming?”
In response to Kejriwal’s argument that the arrest was politically motivated in view of the upcoming elections, the ASG said, “Take the case of a terrorist who is also a politician. He blows up an Army vehicle and says I want to contest elections so you can’t touch me? What kind of argument is this?”
“The question of non supply of documents and earlier statements of these persons, I have said that you are entitled to that, however that stage has not yet reached,” she added.
“In this court’s opinion, who gives tickets to contest elections against whom is not its concern,” the HC said on Raghav Magunta’s father joining ruling party alliance after making a statement against Kejriwal as claimed by him.
“The accused as a matter of right can question it at the stage of cross examination. Kejriwal has this valuable right at the stage of cross examination (with respect to questioning the witnesses and statements). This court cannot step into the shoes of the trial court and conduct a mini trial,” the judge said.
“The question of non supply of documents and earlier statements of these persons, I have said that you are entitled to that, however that stage has not yet reached,” she added.
