Delhi HC stays Kejriwal bail hours before release

NEW DELHI: Hours before his anticipated release from Tihar jail, the Delhi High Court on Friday accorded an interim stay over the trial court order granting regular bail to chief minister Arvind Kejriwal in the liquor policy case.

The High Court threw a spanner in the release of the AAP supremo till the pronouncement of its final verdict on an urgent petition by the Enforcement Directorate challenging the bail order. “Arguments are heard. I am reserving this order for two-three days. Till pronouncement, the operation of the impugned order shall remain stayed,” a vacation bench of Justice Sudhir Kumar Jain said.

The high court ruling came on the ED petition challenging the June 20 order passed by Rouse Avenue court judge Nyay Bindu granting bail to the chief minister. The 26-page order passed by the trial judge was made available on Friday after the ED moved the high court for the cancellation of the bail.

Soon after the ED approached the high court, Kejriwal's wife, Sunita Kejriwal, accused the Central investigating agency of acting as if the AAP national convener is the “most wanted terrorist in India”.

“It was only yesterday that your chief minister got bail. In the morning, the order was supposed to be uploaded. Even before the order was uploaded, the ED approached the Delhi high court. This happened as if Kejriwal is the most wanted terrorist in India,” she said.

Kejriwal said: “Dictatorship in the country has crossed all limits. The ED does not want to give anyone liberty and has gone to the high court against the chief minister, demanding a stay (on his bail)...”

The trial court judge, in her bail order, held that prima facie Kejriwal’s guilt was yet to be established. She said: “It may be possible that some persons known to the applicant are involved in an offence... But ED has failed to give any direct evidence against the applicant in respect of the proceeds of crime.”

The judge said: “This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilised in Assembly elections in Goa by the AAP as, admittedly, after about two years, the bigger portion of the alleged amount remains to be traced out.”

At the High Court, additional solicitor-general S.V. Raju, representing the ED, contended that the trial court's order was “perverse”, “one-sided” and “wrong-sided” and that the findings were based on irrelevant facts. The relevant facts, he claimed, were not considered by the special judge.

Raju said: “Material facts were not considered by the trial court. There cannot be a better case for the cancellation of bail than this one. There cannot be greater perversity than this.” Seeking a stay on the trial court's order, the ASG contended that the ED was not given adequate opportunity to argue its case.

The plea for stay was opposed by Kejriwal’s lawyers Abhishek Singhvi and Vikram Chaudhari. They argued that Article 21 (protection of life and personal liberty) of the Constitution does not exist for ED, for which the liberty of a person figures low in priority.

Singhvi said the ED argued for 3 hours and 45 minutes before the trial judge. “This matter lasted for five hours (before the trial court). Nearly 3 hours 45 minutes were taken by Mr Raju and then the trial judge is faulted because she does not repeat every comma and full stop,” he said.

Countering Raju’s arguments, Singhvi said, “He (the ASJ) says that the order is perverse and therefore limits to one small aspect. Like Alice in Wonderland, ED has its own understanding of perversity.”

After the bail order was passed, Raju told the high court that the ED lawyers urged the trial court to keep its order in abeyance for 48 hours to enable them to approach superior courts, but the prayer was not considered.

“I was not allowed to argue fully. I was not given the adequate time of 2-3 days to file written submissions. This is not done. On merit, I have an excellent case. The trial court said that finish off in half-an-hour as it wanted to deliver the judgment. It did not give us full opportunity to argue the case,” Mr Raju contended, adding, “I am making the allegations with full seriousness.”

The ASJ argued that Section 45 of the Prevention of Money Laundering Act says an opportunity must be granted to the public prosecutor to present his case, but the same was not allowed. He asserted that the trial court did not even look at his reply on the ground that it was bulky and claimed that the trial court came to the conclusion that there was malafide on the ED's part after considering wrong facts and wrong dates.

Mr Raju contended that the trial court has given findings that are contrary to those of the high court while upholding Mr Kejriwal's arrest. “If irrelevant facts are considered, that itself is a reason for the cancellation of bail. There is evidence that Mr Kejriwal demanded Rs 100 crores, but it was not considered by the trial court,” he argued.

“End-to-end money trail was given by us,” he asserted, adding that proceeds of the crime were utilised in the Goa Assembly poll campaign by the AAP. He said: “We have made the AAP an accused in the money laundering case and the offences thus are covered by Section 70 of the PMLA, which deals with companies. The ED had likened the AAP to a company and Mr Kejriwal its director.”

Mr Singhvi urged the court not to stay Mr Kejriwal's bail order and said it may send him back to jail later if it finds overwhelming and cogent circumstances. He also questioned the probe agency's “unfortunate” attempt to malign the judge (by claiming she did not give the ED enough time to argue and did not consider material evidence).

“There is a misconception about what a bail hearing should be like. Just because there is political antagonism involved and if all the commas etc are not dealt with by the judge, it gives Mr Raju the right to malign the judge.

This whole approach is deplorable and sad. It should never have come from a government authority,” Mr Singhvi argued.

Mr Chaudhari submitted that Mr Kejriwal had surrendered to the jail authorities on the expiry of the interim bail period, which showed his bona fide conduct. “If he is out with conditions imposed by the court, what is the prejudice? He is not a terrorist that he will harm society if he is let out. What will happen if the chief minister of the state comes out on bail?” he argued.