DOES THE ED HAVE THE POWER TO MAKE ARRESTS? THE QUESTIONS RAISED AFTER ARVIND KEJRIWAL’S INTERIM BAIL

“Satyamev jayate (Truth alone triumphs)” said the Aam Aadmi Party (AAP) shortly after the Supreme Court granted interim bail to Delhi Chief Minister Arvind Kejriwal in a money laundering case linked to the alleged excise policy scam.

However, Kejriwal and his party’s relief will be short-lived as the 55-year-old Delhi CM won’t be able to walk out of jail yet; he is still in judicial custody till July 25 in the Central Bureau of Investigation’s (CBI’s) corruption case linked to the now-scrapped Delhi excise policy.

On the issue of whether he should step down as Delhi CM, the court also noted that they can’t order him to do so, as it was his call to do so.

While granting interim bail to Kejriwal, the court has also referred questions pertaining to the legality of his arrest in the Enforcement Directorate (ED) case to a larger bench. However, today’s judgment also has larger implications for the ED’s powers.

What the court said

The Supreme Court on Friday granted interim bail to Delhi Chief Minister Arvind Kejriwal in the money laundering case initiated by the Enforcement Directorate in the Delhi excise policy.

A bench of Justices Sanjiv Khanna and Dipankar Datta, however, on the question of law regarding his arrest under the Prevention of Money Laundering Act (PMLA), referred it to a larger bench. Hence, while referring the same to a larger bench, the Court deemed it fit to release Kejriwal on interim bail.

“Given that right to life is concerned and since the matter is referred to a larger bench, we direct Arvind Kejriwal to be released on interim bail,” the apex court ordered, as per a report by Bar and Bench.

The top court clarified that Kejriwal’s release was interim in nature and would have similar conditions imposed on him when he came out right before the Lok Sabha elections. The court said his regular bail shall be decided on merits and that its decision shall not be construed as findings on merits of the case.

The top court in its order raised the question of Section 19 of the Prevention of Money Laundering Act (PMLA), which relates to the power of arrest, saying it needed to be considered by a larger bench of the top court.

Section 19 of PMLA, explained

Section 19 of the PMLA relates to the power of arrest. Section 19(1) states that if the ED Director “has on the basis of material in his possession, reason to believe (that reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.”

What this means is that the arrest has to be made on the basis of material in possession of the ED. However, senior advocate Abhishek Manu Singhvi, appearing for Kejriwal, has argued that the material being cited by the ED now to defend Kejriwal’s arrest was not present during his arrest and was produced later.

Also read: Why has the CBI arrested Arvind Kejriwal? Is this different from the ED’s case?

“Every material on ground of arrest predates July, August 2023. All this evidence was in Sisodia case... So what was new in Arvind Kejriwal case?... Evidence is all prior to August 2023,” Singhvi had said, reports Bar and Bench. He had further submitted, “Entire charge is Rs 100 crores... August 2023 charge this is. This is old news... March 2024 there was arrest... no money has been transferred.”

The ED, on the other hand, had argued that “reason to believe” in Section 19 of PMLA meant that the authority didn’t need to supply the incriminatory material it has against an accused at the time of arrest. “The reason to believe (that an accused has committed an offence) is the material before him (ED officer). In criminal law, they are not entitled to any copy before chargesheet is filed... else evidence will be tampered with and witnesses will be threatened,” Additional Solicitor General Raju said.

‘Need to interrogate’

The court today (July 12) raised the additional question if “need and necessity of arrest” can be read into Section 19 as one of the grounds. Justices Sanjiv Khanna and Dipankar Datta stated that “mere interrogation” cannot be the ground to arrest someone.

According to The Print, the court wants the larger bench to examine the policy or basis of an arrest that takes place on the ground that there is a need and necessity to take someone into custody.

In fact, the judges framed questions for the larger bench: first being “whether need and necessity of arrest is a separate ground to challenge the order of arrest under Section 19 of PMLA”.

The second was “whether need and necessity refers to the satisfaction of the normal parameters of arrest (under Section 19) and to take a person into consideration or whether it relates to other personal grounds and reasons regarding the necessity to arrest a person in the facts and circumstances of the case”.

Reactions

The AAP hailed the Supreme Court’s decision and said this has “exposed” the BJP “conspiracy” against him. In a joint press conference, AAP leaders Atishi, Saurabh Bharadwaj and Sandeep Pathak termed the Supreme Court verdict as a “victory of truth”.

However, the BJP said that this wasn’t a victory for the AAP, as the court has put its “seal of approval” on him being guilty in the excise policy case. Kejriwal had petitioned the apex court not for bail but for adjudication that his arrest was illegal, BJP MP Bansuri Swaraj told a press conference here.

“The Supreme Court did not provide any relief on this prayer by him, rather it found that the ED (Enforcement Directorate) has sufficient evidence to prove the requirement of Section 19 of the PMLA that an accused is prima facie guilty. This is seal of approval by the Supreme Court,” she said.

With inputs from agencies

2024-07-12T11:34:35Z dg43tfdfdgfd