Why Have You Not Filed Any Application For Bail: Supreme Court Asks Arvind Kejriwal's Counsel While Hearing His Challenge Against Arrest

The Supreme Court will continue to hear tomorrow, Delhi Chief Minister Arvind Kejriwal's plea challenging the Delhi High Court's Judgment upholding his arrest in the money laundering case stemming from the Delhi excise policy scam.

The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta adjourned the case to tomorrow after hearing the case for around an hour today.

At the outset, the Court asked Senior Advocate Abhishek Manu Singhvi appearing on behalf of Kejriwal whether Kejriwal has not sought bail till now. Singhvi replied in the negative. 

"So you are basically against arrest and remand", asked the Court.

"Just out of curiosity, why did you not file any application for bail", asked Justice Khanna.

"The arrest is illegal. The width of Section 19 (PMLA Act) is broad when the arrest is per se illegal", Singhvi replied. 

ASG SV Raju appearing for the Enforcement Directorate then submitted that Kejriwal has not objected to subsequent remand orders. Singhvi responded by saying that it is not necessary when the arrest itself is illegal. 

Singhvi submitted that Kejriwal has not been named in the two ECIRs by the ED or in the FIRs or the three chargesheets filed by CBI, or in five ED Prosecution Complaints. He also told the Court that Kejriwal has not been named in the eleven statements by witnesses.

"I am not saying either way. For clarity, take a normal criminal case, a person is arrested and produced before Court, the application is moved by the prosecution for police custody and some grounds will be given for that. The Court then decides whether to give custody....  At that stage, the charge sheet is sometimes not filed and thereafter charge sheet is filed. The documents examined by the Court are basically the police diary and the documents that they are able to collect and the Court frames a prima facie view", Justice Khanna said.  

Singhvi then referred to Section 19 of the PMLA Act and submitted that the threshold under the PMLA Act for arrest is very high. He submitted that Kejriwal was arrested after the model code of conduct came into force and was not arrested for a long period before that. He submitted that one statement by a person given in July last year, which was his eleventh statement, was used to arrest Kejriwal.   "I am not saying that the Chief Minister has immunity. Does a chief minister have lesser rights than a normal person", asked Singhvi. 

"Till the date of my arrest I am not an accused or suspect", Singhvi submitted. He told the Court that three persons who gave statements against Kejriwal, one of them joined the ruling party, the father of the other person joined an alliance party and the third person purchased electoral bonds. 

Authority should objectively consider favourable and unfavourable statements of witnesses, Justice Khanna remarked when the Court was told that the statement against the Chief Minister was the tenth statement of a witness and the prosecution only relies upon the tenth statement. "This will result in a cat and mouse game if the principle is not set right", Singhvi submitted in the context.  

Singhvi submitted that statements of co-accused should be corroborated. Singhvil, while answering a question from the Court, told the Court that there are, in total, five statements against Kejriwal. Singhvi also submitted that Kejriwal was arrested eight months after the last statement was given against him. 

Singhvi also submitted that a person cannot be arrested because he refuses to give a self-incriminating statement. He submitted that Kejriwal was arrested from his house, but the ED did not come to his house to record his statement. He said that even on the day of the arrest, Section 50 statement was not recorded.

Singhvi submitted that Kejriwal was arrested on that particular day after one and a half years because on the same day, he was refused protection from arrest by the Court. He submitted that the same cannot be a reason for arrest. 

The Court then adjourned the matter to tomorrow when it was told by Singhvi that he would one more hour to finish his arguments.

The Enforcement Directorate has filed an extensive Affidavit-in-reply to the Special Leave Petition by the Delhi Chief Minister Arvind Kejriwal assailing the order passed by the Delhi High Court upholding the arrest and remand in the money laundering case. The ED in its reply has alleged that Arvind Kejriwal is the kingpin and key conspirator in the Delhi Liquor Policy Excise Scam, responsible for the mass destruction of evidence and the main facilitator of the new policy for the bribe givers.