New Delhi: In a blow to Delhi Chief Minister Arvind Kejriwal, the Delhi High Court on Tuesday stayed the trial court's order granting him bail in the money laundering case arising from the alleged scam excise duties, holding that the lower court did not "properly appreciate" the material submitted to it by the Enforcement Directorate.
A vacation bench of Justice Sudhir Kumar Jain said the ED's arguments attacking the bail order required serious consideration.
“The vacation judge (trial judge), while passing the impugned order, did not properly appreciate the material/documents placed on record and the allegations raised by the ED and the contentions/grounds raised in the petition under section 439 (2) of the Code require serious consideration," it said. "Accordingly, the present application is allowed and the execution of the impugned order is stayed," the court said.
The trial court, headed by retiring judge Niyay Bindu, granted bail to Kejriwal on June 20 and ordered his release on a personal bond of Rs 1 lakh.
The ED moved the high court the next day and held that the trial court's order was "perverse", "one-sided" and "misguided" and was passed without giving it adequate opportunity to argue the case.In the order of 34 pages on the ED application seeking to stay the execution of the bail order, Justice Jain stated that every court has the obligation to give sufficient opportunity to the parties to present their respective cases and in the present case, as well , ED should have been given adequate opportunity to present arguments on Kejriwal's bail application.
Justice Jain said that the trial judge not only failed to discuss or consider the arguments presented by the anti-money laundering agency, including those presented in the written submissions, but also failed to discuss or record his opinion regarding the requirement of the "twin condition." under section 45 of the Prevention of Money Laundering Act (PMLA) while granting bail.
Under section 45 of the PMLA, an accused may be granted bail subject to the "dual conditions" that the court is prima facie satisfied that he is not guilty of such offense and that the prosecutor has had an opportunity to oppose the bail application.The issue regarding Kejriwal's indirect responsibility as Aam Aadmi Party (AAM) leader also found no place in the bail order, the court added.
"Perusal of the impugned order reflects that the vacation judge passed the impugned order without examining and appreciating all the material presented by the rival parties, which reflects the perversity of the impugned order. There is factual force in the arguments advanced by Sh . S. V. Raju (for ED) that the vacation judge did not pass the impugned order after due consideration of all the material on record," the court opined.
"Sh. S. V. Raju opened the arguments by referring to paragraph No. 16 of the impugned Order in which the judge on vacation has observed that it is not possible to go through thousands of pages of documents submitted by the respective parties but it is the duty of the court to work on the matter under consideration and passed the order in accordance with law," he said. The court was of the opinion that the observations made by the trial court in the bail order were "unnecessary, unjustified and out of context ” and should have followed “judicial discipline” in refraining from attributing malafide on the part of the ED in view of an earlier order of the high court supporting the absence of such intention.
At this juncture, the court stated, it cannot be said that Kejriwal's arrest and remand was not in accordance with law and that his personal freedom was restricted without following the procedure laid down by law.
He also said that the interim bail granted to the Prime Minister by the Supreme Court was not on his merits but in the context of the Lok Sabha general elections and therefore his argument that he did not misuse the same was not is very helpful."There is also no force in the argument advanced by Dr. Singhvi (CM's counsel) that... the respondent (Kejriwal) can be remanded to judicial custody, particularly in view of the fact that the impugned order approved by the judge on vacation is under serious The challenge and the grounds of challenge raised by the ED require consideration by the appropriate court," he said.
On June 20, Special Judge Niyay Bindu, acting as a vacation judge, granted bail to Kejriwal in the money laundering case, saying that the ED did not provide direct evidence linking him to the proceeds of crime in the money laundering case.
On June 21, the high court had stayed the execution of the bail order until it ruled on the issue of stay. It had also issued a notice to Kejriwal seeking his response to the ED's plea challenging the trial court's decision and had listed it for hearing on July 10 before the list court. Kejriwal moved the Supreme Court against the suspension provisional release on bail. On Monday, the Supreme Court fixed June 26 to hear his plea against the suspension, stating that it would like to wait for the pronouncement of the high court's order.
The excise policy was scrapped in 2022 after Delhi's lieutenant governor ordered a CBI probe into alleged irregularities and corruption related to its formulation and execution.
According to the CBI and ED, irregularities were committed while changing the excise policy and undue favors were extended to license holders.
A vacation bench of Justice Sudhir Kumar Jain said the ED's arguments attacking the bail order required serious consideration.
“The vacation judge (trial judge), while passing the impugned order, did not properly appreciate the material/documents placed on record and the allegations raised by the ED and the contentions/grounds raised in the petition under section 439 (2) of the Code require serious consideration," it said. "Accordingly, the present application is allowed and the execution of the impugned order is stayed," the court said.
The trial court, headed by retiring judge Niyay Bindu, granted bail to Kejriwal on June 20 and ordered his release on a personal bond of Rs 1 lakh.
The ED moved the high court the next day and held that the trial court's order was "perverse", "one-sided" and "misguided" and was passed without giving it adequate opportunity to argue the case.In the order of 34 pages on the ED application seeking to stay the execution of the bail order, Justice Jain stated that every court has the obligation to give sufficient opportunity to the parties to present their respective cases and in the present case, as well , ED should have been given adequate opportunity to present arguments on Kejriwal's bail application.
Justice Jain said that the trial judge not only failed to discuss or consider the arguments presented by the anti-money laundering agency, including those presented in the written submissions, but also failed to discuss or record his opinion regarding the requirement of the "twin condition." under section 45 of the Prevention of Money Laundering Act (PMLA) while granting bail.
Under section 45 of the PMLA, an accused may be granted bail subject to the "dual conditions" that the court is prima facie satisfied that he is not guilty of such offense and that the prosecutor has had an opportunity to oppose the bail application.The issue regarding Kejriwal's indirect responsibility as Aam Aadmi Party (AAM) leader also found no place in the bail order, the court added.
"Perusal of the impugned order reflects that the vacation judge passed the impugned order without examining and appreciating all the material presented by the rival parties, which reflects the perversity of the impugned order. There is factual force in the arguments advanced by Sh . S. V. Raju (for ED) that the vacation judge did not pass the impugned order after due consideration of all the material on record," the court opined.
"Sh. S. V. Raju opened the arguments by referring to paragraph No. 16 of the impugned Order in which the judge on vacation has observed that it is not possible to go through thousands of pages of documents submitted by the respective parties but it is the duty of the court to work on the matter under consideration and passed the order in accordance with law," he said. The court was of the opinion that the observations made by the trial court in the bail order were "unnecessary, unjustified and out of context ” and should have followed “judicial discipline” in refraining from attributing malafide on the part of the ED in view of an earlier order of the high court supporting the absence of such intention.
At this juncture, the court stated, it cannot be said that Kejriwal's arrest and remand was not in accordance with law and that his personal freedom was restricted without following the procedure laid down by law.
He also said that the interim bail granted to the Prime Minister by the Supreme Court was not on his merits but in the context of the Lok Sabha general elections and therefore his argument that he did not misuse the same was not is very helpful."There is also no force in the argument advanced by Dr. Singhvi (CM's counsel) that... the respondent (Kejriwal) can be remanded to judicial custody, particularly in view of the fact that the impugned order approved by the judge on vacation is under serious The challenge and the grounds of challenge raised by the ED require consideration by the appropriate court," he said.
On June 20, Special Judge Niyay Bindu, acting as a vacation judge, granted bail to Kejriwal in the money laundering case, saying that the ED did not provide direct evidence linking him to the proceeds of crime in the money laundering case.
On June 21, the high court had stayed the execution of the bail order until it ruled on the issue of stay. It had also issued a notice to Kejriwal seeking his response to the ED's plea challenging the trial court's decision and had listed it for hearing on July 10 before the list court. Kejriwal moved the Supreme Court against the suspension provisional release on bail. On Monday, the Supreme Court fixed June 26 to hear his plea against the suspension, stating that it would like to wait for the pronouncement of the high court's order.
The excise policy was scrapped in 2022 after Delhi's lieutenant governor ordered a CBI probe into alleged irregularities and corruption related to its formulation and execution.
According to the CBI and ED, irregularities were committed while changing the excise policy and undue favors were extended to license holders.
