The Delhi High Court on Tuesday rejected a petition moved by Delhi Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) on allegations of money laundering in connection to the now scrapped Delhi Liquor Policy case. The court said ED was able to show enough documents including the statements of Hawala dealers which shows that money was sent to Goa elections.
The court rejected Kejriwal's challenge to arrest under PMLA and said "the files and material placed before us reveals that the mandate of law was followed by the ED. The trial court order is not a two line order. The statements with ED are of hawala dealers as well as AAP Candidates in Goa elections."
Before pronouncing the verdict, the judge said that she wishes to clarify that the present petition challenges arrest and states that it is in violation of a decision of the Supreme Court. "It is not an application of bail," the court clarified before pronouncing the decision on arrest.
The court said that the material collected by ED reveals that Arvind Kejriwal conspired and was actively involved in use and concealment of proceeds of crime. "The ED case also reveals that he was involved in his personal capacity as well as convenor of AAP."
The court further said that the Senior Counsel Abhishek Manu Singhvi arguing for Kejriwal stated that statements of approvers are not reliable. In the present case among several statements the statements of Raghav Magunta and Sarath Reddy are approver statements which were recorded under PMLA as well as Section 164 CrPC.
The court said that questioning the validity of approver's statement is equal to casting aspersion on judicial process. It was not ED but the judicial court that granted pardon to approvers, the court clarified. The court rejected Singhvi's argument and held that the law of approver is a 100-year-old law.
The bench of Justice Swarana Kanta Sharma said that the court is concerned with upholding constitutional morality and not political morality and the court is not concerned with politics.
While rejecting Kejriwal's plea, the court ruled that his assertions that Raghav Magunta and his father paid money to BJP in electoral bonds is not for this court to see.
"Who gives tickets to contest elections to whom or who gives electoral bonds to whom is not for this court to see."
The Judge further rejected Kejriwal's contention that he could have been questioned through Video Conferencing and said that it is not for the accused to decide how the investigation is to be done. It cannot be as per the convenience of the accused.
"There cannot be any specific privilege for any one including the Chief Minister," the judge said.
The court also rejected the argument by Singhvi on the "timing of arrest."
"This court is of the opinion that the accused has been arrested and his arrest and remand has to be examined as per law and not as per timing of elections."
On Wednesday, the court reserved its verdict after it witnessed many fiery exchanges between Senior Advocate Abhishek Manu Singhvi appearing for the Kejriwal and Additional Solicitor General (ASG) SV Raju appearing for ED.
Senior Advocate Abhishek Manu Singhvi appearing for Arvind Kejriwal's began his arguments in court and said that the arrest was driven by an agenda to humiliate Arvind Kejriwal and demolish the Aam Aadmi Party (AAP) even before the first vote is cast in the upcoming elections. Singhvi emphasised on the importance of case in terms of a "level playing field."
He said that the arrest after MCC is to disable, humiliate AAP and Kejriwal. "It is part of free and fair elections which is part of democracy and basic structure. The case reeks of timing issues. They are trying to disintegrate and demolish his party before the first vote is cast...your first summon on 30 th October, 2023 and arrest now?"
Singhvi also cited the Pankaj Bansal case as well. He argued that if Section 45 of PMLA made bail difficult, it also made arrest difficult."Your arrest has ulterior motives. Power of arrest you have...the test is not "arrest." it is the ability to arrest," Singhvi said.
On claims by the ED over "non-cooperation" by Kejriwal, Singhvi said that admission of guilt and arrest are not "cooperation."
He also pointed out the "Extraordinary point" made by ED: "That because the accused himself said that he had no objection to judicial custody in trial court, he has lost right? Is this a civil case? How can they make such an argument? "
He accused ED of concealing statements recorded in favour of Kejriwal. Singhvi said that in criminal law, it's a fraud by the prosecutor to conceal documents that have exculpatory statements of approvers.
He said that the ED kept recording statements till the approver did not name Kejriwal. He further said that Section 70 cannot arise at all. It is applicable to a company. AAP is a political party under different statute."In a desperate stretch, the ED argues on Section 70." Singhvi said.
Calling it a case of "vicarious liability," Singhvi said that even for a company, they have to prove Kejriwal's role in personal capacity.
ASG SV Raju began his argument by saying that Singhvi has argued a writ plea like a bail plea and his arguments are not relevant at this stage. Most of the arguments have been made as if chargesheets have been filed, he said.
"There is some property which is already provisionally attached. Proceedings are going on, RS. 126 crores. We are wanting to attach properties of AAP. If we attach, allegations will be made that allegations ke time aise Kiya. Fortunately for us, we are at the stage of investigation. Investigation is not over, it is at a nascent stage..." ASG SV Raju said.
He said that even if this court rules in his favour, Kejriwal cannot be released today as he has not challenged the April 1 order that sent him in Judicial custody. Unless you challenge the subsequent orders, it cannot be said to be illegal.
"Kejriwal has challenged the first remand order whereas his current judicial custody is based on the April 1 order," he said.
He further argued that finding the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering. "The argument is that the ED could not find it from my home. But, if you have given it to someone, how will ED find? He is actually involved and he is vicariously involved." ASG Raju asserted in the high court.