No Immediate Relief To Arvind Kejriwal As Delhi HC Gives ED Time To File Reply By April 2

The Delhi High Court On Wednesday issued notice to the Enforcement Directorate (ED) and sought its response to Delhi Chief Minister Arvind Kejriwal's petition calling his arrest illegal by April 2.

When the hearing started on Wednesday morning, ASG SV Raju appearing for the ED urged the high court to give the central agency some time to file a reply to the "bulky" petitions filed by Kejriwal.

The Delhi High Court On Wednesday issued notice to the Enforcement Directorate (ED) and sought its response to Delhi Chief Minister Arvind Kejriwal petition against ED arrest by April 2. However, there will be no immidiate relief for Arvind Kejriwal as Delhi High Court has issued notice in both his interim plea as well as main writ petition challenging arrest and ED remand.

Kejriwal filed two petitions in the high court, one against the ED arrest and subsequent remand and another for interim relief for immediate release from custody till the time the main matter is completed. The matter is now posted on April 3 for final disposal.

The high court opined that Kejriwal's petition raises several issues of legality and validity regarding his arrest and remand.

"And such important questions and issues cannot be summarily heard and decided, by giving opportunity to only one party to file petition, documents, short note of arguments and compilation of judgments relied upon by them, especially when copy of the petition was provided to the Directorate of Enforcement yesterday itself, and the short note of arguments and compilation of judgments relied upon by them were provided to the Court as well as the learned ASG during the hearing itself. It will be unfair to not give an opportunity to the Directorate of Enforcement to rebut the same by way of filing of a detailed response," the high court order read.

Senior Advocate Abhishek Manu Singhvi while making his arguements in the high court called arrest politically motivated and malafide.

"There are also serious concerns which have been raised by Sh. Singhvi, learned Senior Counsel on behalf of the petitioner, which relate to Article 21 of the Constitution of India and Section 19 of PMLA, as well as the validity of the statement of an approver. The necessity and timing of the arrest of the petitioner and the motive behind it has also been argued at length by the learned Senior Counsel, Sh. Singhvi. He has also raised serious and critical questions before this Court that this Court being a constitutional Court must apply its mind to the motive behind the arrest which is patently illegal and has a direct bearing on the democratic process of impending elections in the country," the court noted in its written order.

The court ruled that the ED has to be granted an opportunity to file a reply, as an opportunity for effective representation, and declining this opportunity would amount to denial of fair hearing as well as violation of one of the principles of natural justice i.e., audialteram partem, which is applicable to both the parties and not one.

"This Court also cannot presume that the respondent will have no reply to file and will remain bound only by the contentions raised before the learned Trial Court. More so, since there may be some additional material in the possession of the investigating agency, collected during the custodial interrogation of the petitioner herein, which they may wish to place before this Court, which may be crucial to decide the present case. Such material may also be crucial for the petitioner himself."

The judge noted in her order that the court while hearing and deciding a case is duty bound to hear both sides fairly keeping in mind the principles of natural justice. The court thus held that the reply by Directorate of Enforcement is essential and crucial to decide the present case, and therefore, rejected the contention of the learned Senior Counsel Singhvi that no reply is required to be filed on behalf of ED.

This Court also takes note of the fact that the relief sought in prayer of the main petition i.e. the release of the petitioner and the prayer
sought in the application for grant of interim relief is similar and identical.

"The issues raised in the main petition and prayer (A) i.e. declaring the arrest as illegal and prayer (B) i.e. quashing of remand order, will lead to an order being passed on prayer (C) of the main petition i.e. release of the petitioner from custody. Thus, deciding the present application for interim release of petitioner would amount to disposing of and granting relief sought in the main petition in prayer (C). Further, any release order from custody will amount to enlarging the accused/petitioner on bail or interim bail, as an interim measure."

The court further observed that the writ jurisdiction under Article 226 of the Constitution of India is not a ready substitute for recourse to the remedy of bail under Section 439 of the Cr.P.C. ordinarily.

It noted that any order passed in the application for interim release of petitioner, pending disposal of the main petition without calling for reply of the respondent, at this stage, would rather amount to deciding the main petition itself.

"This Court remains conscious of the fact that to reach a conclusion as to whether the petitioner herein is entitled to immediate release or not, this Court will necessarily have to decide the issues raised in the main petition, as those issues are the edifice of arguments of the learned Senior Counsel for the petitioner seeking immediate release of the petitioner. In such circumstances, this Court deems it appropriate to issue notice of the main writ petition as well as application for grant of interimrelief, returnable on 03.04.2024."

The court further said that it will dipose of the plea on April 3 and will not grant any adjournments in the case.

When the hearing started on Wednesday morning, ASG SV Raju appearing for the ED urged the high court to give the central agency some time to file a reply to the "bulky" petitions filed by Kejriwal. The ASG claimed that they have been asking for a copy of the petition, but they only received a copy the day before. 

Senior Advocate Abhishek Manu Singhvi however blamed the delay on the defects in the petition and Holi break. He further said that ED is employing delaying tactics in the case. 

Justice Swarana Kanta Sharma after hearing Singhvi's initial submissions in morning said that she was inclined to issue notice, however, Singhvi appearing for Kejriwal said he would respectfully oppose it and said that the ED is adopting delaying tactics. He said the petition requires immediate relief as it is filed against the six-day remand that ends tomorrow (March 28.) 

Singhvi urged the high court to either reject or accept the plea for interim relief. 

After hearing Singhvi's prayers, Justice Sharma said that she will issue notice on the main writ petition and give a very short date. But she will hear the prayer for interim relief in IA for Kejriwal's release today.

Following which, Singhvi made his arguements in the court and contended that Kejriwal's arrest is against the Basic Structure of the Indian Constitution.

After Singhvi concluded his arguements, ASG Raju again said he needed time to file reply. "Arguements went on for two hours, I need time to study the petition and arguements." Since the ED did not submit arguements in the court, the court said that it will pass an order and issue notice the central agency to seek response on Kejriwal's petition. 

The Delhi CM has moved the high court calling his arrest and remand illegal. He has contended that he is entitled to be released immediately.