The Supreme Court on Thursday reserved order on Delhi Chief Minister Arvind Kejriwal’s separate pleas seeking bail and challenging arrest by Central Bureau of Investigation (CBI) in the excise policy “scam”. After concluding arguments from both sides, a bench of Justices Surya Kant and Ujjal Bhuyan said, “Thank you for the assistance. Judgment reserved.”
Additional Solicitor General SV Raju represented the CBI and Senior Advocate Abhishek Singhvi appeared for the AAP chief. The apex court was hearing two separate petitions challenging his arrest by the CBI and the denial of bail in the corruption case filed by the agency.
The AAP convenor has challenged the August 5 order of the Delhi High Court dismissing his plea against his arrest by the agency. He has also filed a Special Leave Petition against the High Court’s refusal to consider his bail plea. The CBI had arrested Kejriwal on June 26.
Questioning the maintainability of Kejriwal’s pleas seeking bail and challenging his arrest, the CBI told the Supreme Court that he should have first approached the trial court for bail in the corruption case linked to the alleged excise policy scam. “He has approached Delhi High Court directly without going to sessions court. Under Section 439 of the Code of Criminal Procedure (CrPC), both have concurrent jurisdiction. My preliminary objection is he must first go to trial court,” ASJ Raju said.
“He has approached the Delhi High Court directly without going to sessions court. My preliminary objection is he must first go to trial court,” Raju argued. The CBI did not issue a notice to Kejriwal under section Section 41A of the CrPC as he was already in judicial custody, he said. Raju said if the Supreme Court which grants bail to Kejriwal, it will demoralise the Delhi High Court, which had upheld his arrest.”Don’t say that. Whatever order we pass, we will ensure nothing like that happens,” the bench assured Raju.
Countering Raju’s submissions, senior advocate Abhishek Singhvi, appearing for the chief minister, said the questions arising for consideration in the present bail case have already been extensively dealt with by the trial court during remand.”It’s not a fair argument for CBI to raise at this stage. You cannot consider sending me back there. Arguments were looked into during remand and affirmed against me. It is not fair to raise that argument now. At this stage, there is huge delay involved since it has been heard on merits. I am giving the right of appeal. CBI should be the last one to complain,” Singhvi said.
Pointing out alleged legal infirmities in the case, Singhvi said no notice was served to Kejriwal by the CBI before his arrest and an ex-parte arrest order was passed by the trial court. Caling it as a mere “technicality”, the ASG said the CBI did not issue a notice to Kejriwal under section Section 41A of the Code of Criminal Procedure as he was already in judicial custody.Singhvi countered the submission and said, “Matters of liberty cannot be termed technicality. What I am referring to are procedural safeguards.”
Singhvi further submitted that Kejriwal is a constitutional functionary and not a flight risk. Singhvi said Kejriwal was also not named in the CBI FIR. Singhvi also said that other co-accused in the case, former deputy chief minister Manish Sisodia, AAP leader Vijay Nair and BRS leader K Kavitha, have been granted bail in the case. Raju replied that the co-accused who got bail from the apex court had approached the trial court first which Kejriwal did not do.
During the hearing, the bench made an oral observation that if the high court took a tentative view that Kejriwal should have approached trial court first, then it should have opined so when notice was issued in the first place.
“Ideally, the high court should have been decisive on this question. The high court should have passed that order on that very day when notice was issued,” the bench said.Raju replied that high courts are heavily burdened and that the Delhi high court heard the matter on Muharram holiday.
During the proceedings, Singhvi noted that this is the “only case” in which bail has been granted twice to Kejriwal under the stringent PMLA provisions, in addition to regular bail.
Singhvi, said the chief minister received release orders three times in the money-laundering case despite the “stringent rigours” of Section 45 of the Prevention of Money Laundering Act. Singhvi was referring to the interim bail orders passed by the Supreme Court on May 10 and July 12, and the regular bail order passed by the trial court on June 20, which was stayed by the High Court.
The Delhi high court had on August 5 upheld the arrest of the chief minister as legal, and said there was no malice in the acts done by the CBI which was able to demonstrate how the AAP supremo could influence witnesses who could muster the courage to depose only after his arrest. The high court had asked him to move the trial court for regular bail in the CBI case.
