The Supreme Court is scrutinizing the Enforcement Directorate’s handling of a witness statement that did not implicate Arvind Kejriwal previously. The bench also emphasized the significance of corroboration in approver statements and raised questions about the veracity and credibility of other statements submitted by the ED.
NEW DELHI: Today (16th May): The Supreme Court questioned the stance of the Enforcement Directorate (ED) concerning the testimony of a witness in the Delhi liquor policy case involving Chief Minister Arvind Kejriwal. The Bench of Justices Sanjiv Khanna and Dipankar Datta posed probing questions to the ED during the hearing.
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Justice Datta suggested,
“For the sake of discussion, let’s assume the statement lacks credibility. Shouldn’t this observation be documented in the file as well? Otherwise, it could be perceived as enhancing the case during subsequent arguments.”
The testimony of Telugu Desam Party (TDP) Lok Sabha candidate Magunta Srinivasulu Reddy, whose son is an approver in the case.
The bench also emphasized the significance of corroboration in approver statements and raised questions about the veracity and credibility of other statements submitted by the ED. The hearing pertained to Kejriwal’s plea challenging his arrest and remand in the money-laundering case, which alleges a conspiracy by AAP leaders to manipulate the Delhi Excise Policy for personal gains.
Justice Datta emphasized the necessity of such reasoning being recorded in the file, highlighting concerns about procedural integrity. The absence of such documentation was acknowledged by the ASG. Further, the court stressed the importance of addressing Section 164 statements, indicating that non-belief in a statement should be explicitly stated in the records.
Justice Datta emphasized,
“While you may have valid grounds for the arrest, it’s essential to address the Section 164 statement indicating disbelief.”
When the Additional Solicitor General (ASG) representing the ED argued that the decision to believe or disbelieve a witness statement lies with the Investigating Officer (IO) and cannot be questioned by the court, the bench inquired whether any rationale for this decision was documented.
Justice Khanna further commented that if the court were to annul the arrest, it might need to assert that pertinent evidence wasn’t duly considered.
In today’s proceedings, the Court asserted its intention to review the evidence available with the ED at the time of Kejriwal’s arrest. Justice Datta posed a scenario where the investigating officer possesses evidence indicating the accused’s innocence, questioning whether the court should intervene if such evidence is disregarded in favor of grounds for arrest based solely on exclusionary material.
The Court deliberated on its role in assessing the evidence, emphasizing the necessity of scrutinizing all available material to determine the presence or absence of evidence. It raised the possibility of interference if evidence favoring the accused is overlooked.
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During the proceedings, the court expressed its intention to scrutinize the materials available with the ED at the time of Kejriwal’s arrest, suggesting a need for fairness and balance in the investigative process. It deliberated on the threshold for interference by the court in such cases, emphasizing the need for a holistic assessment of the evidence.
Regarding the issue of whether a petition can be filed to challenge the remand order issued by the trial court after an arrest, the Court clarified that such an order could indeed be contested before the High Court under Article 227 and Section 482.
The Court further noted that any evidence gathered subsequent to Kejriwal’s arrest cannot be used to refute his current petition.
“Based on the arguments presented, we must establish a clear demarcation at the time of arrest. While delaying the arrest is a possibility, the crux lies in ensuring the adequacy of evidence at the time of apprehension. Dependence on evidence gathered after the arrest is untenable.”
Additionally, the court addressed the maintainability of petitions challenging remand orders, asserting the right to judicial review under specific legal provisions.
The ED’s arguments regarding the legality of arrests under the Prevention of Money Laundering Act (PMLA) were also scrutinized by the court, which hinted at laying down legal precedents concerning the ED’s powers.
“The parameters change significantly when an individual’s liberty is at stake, so it would be incorrect to argue that simply because charges are framed, bail cannot be granted to the accused.”
Justice Khanna
Amidst these deliberations, the ED presented allegations against Kejriwal, including demands for illicit funds and extravagant expenditures, which the court considered within the context of the case. However, the court remained firm on its commitment to uphold legal procedures and avoid prejudicial assumptions.
Today’s Hearing Observation
In today’s hearing, in addition to contesting the admissibility of his petition against arrest, the central agency informed the Supreme Court that the Chief Minister allegedly demanded Rs 100 crore, which was purportedly utilized for the AAP’s campaign in the Goa elections. The agency stated its intention to implicate the AAP in the case, presenting direct evidence alleging Kejriwal’s stay at a seven-star hotel with bills running into lakhs of rupees.
The Additional Solicitor General (ASG) emphasized that given the evidence of bribery, there was no requirement for the Investigating Officer (IO) to consider materials favoring Kejriwal.
The ASG argued that
the IO is not obligated to render judgment on such matters.
ED Argued
The ED argued that Kejriwal’s petition was not maintainable, with Solicitor General Tushar Mehta contending that it was the trial court’s responsibility to ensure compliance with Section 19 of the Prevention of Money Laundering Act (PMLA) in his arrest.
Mehta expressed concern that allowing petitions like Kejriwal’s could set a precedent for numerous similar pleas. However, the Court noted that Kejriwal had pursued legal recourse through the trial court and High Court before approaching the Supreme Court.
Justice Khanna clarified that Section 19 imposes specific conditions, and any violation of these conditions permits judicial intervention. He emphasized that both the remand court and high courts have the authority to intervene. Additionally, he pointed out that Kejriwal had initially sought relief from lower courts before seeking redress from the Supreme Court.
Mehta contended that Kejriwal’s petition was effectively asking the Supreme Court to conduct a mini-trial, challenging his arrest. He highlighted that Kejriwal had also approached the Delhi High Court, where the ED was directed to produce relevant material. The High Court’s scrutiny focused on the overall material rather than individual witness statements.
In response, Justice Khanna pointed out that the Supreme Court has historically entertained petitions under its inherent jurisdiction. He referenced previous cases where bail was granted under Article 32.
Mehta suggested that Kejriwal’s petition challenging his arrest would be admissible if the provision for seeking bail were removed.
“If we remove Section 439, then the petition could be considered admissible,” he argued.
Mehta also mentioned that the remand orders against Kejriwal were issued with his consent, citing the AAP leader’s verbal acknowledgment in the trial court that he did not oppose the remand.
However, Justice Datta seemed unconvinced by this assertion.
“What if there is no consent? If the arrest is deemed to affect Section 19, are you suggesting that no petition under Article 227 would be permissible? Is that the extent of your argument?” The judge queried.
Mehta also questioned the allegation that the ED was excessively resorting to arrests across the country.
“We have provided the figures since the Vijay Mandanlal judgment in 2022. Since then, there have been a total of 313 arrests. The Act was enacted in 2002. Money laundering is recognized as a global offense by international conventions, and our law is aligned with the FATF (Financial Action Task Force) standards,” he stated.
Mehta highlighted that there is a peer review every five years concerning the law and its implementation. He emphasized that our country’s creditworthiness for international borrowing is contingent upon compliance with these standards.
However, the Court declined to delve into this aspect of the argument.
Towards the conclusion of his arguments, SG Mehta informed the Court that Kejriwal, currently on interim bail, had stated in a recent rally that he would avoid jail if people voted for AAP in the elections.
Mehta pointed out that this statement violated the top court’s condition that Kejriwal refrain from discussing the case against him while on bail.
Furthermore, the Court expressed its openness to criticism regarding the decision to grant bail to the Chief Minister for election campaigning.
“We appreciate critiques of the verdict. However, we will not engage with them. Our order on when he must surrender is clear. It is the order of the Apex Court, and the rule of law shall be upheld accordingly. We have not made exceptions for anyone,” Justice Khanna asserted.
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In response to the Court’s observation regarding the necessity for the ED to consider evidence favoring the accused at the time of arrest, ASG Raju stated,
“The Court has ruled that providing reasons by the officer does not imply evaluating the merits or demerits.”
The Court then queried whether this argument extended to the court having greater depth and authority when assessing bail under Section 45 of the PMLA.
In response, Raju highlighted that
when determining guilt, the court must examine evidence demonstrating guilt, not evidence indicating innocence, which may not need to be recorded.
The Court concurred, stating that the court’s judgment is based on subjective satisfaction rather than the officer’s, and thus, the court has the authority to review the evidence.
The proceedings will resume on Friday for further arguments.
Case Title: Arvind Kejriwal v. Directorate of Enforcement
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