Excise case: What did the Delhi High Court say on Kejriwal’s application for interim relief

A division bench of Justice Suresh Kumar Kait and Justice Manoj Jain said it has heard both sides, “however at this stage”, it is “not inclined” to grant protection.

ED team reaches Delhi CM Arvind Kejriwal’s residence in Civil Lines; follow Live Updates

The bench said the application will be heard on April 22 with the main writ petition. “The respondent is at liberty to file a reply to the application,” it added.

Senior advocate Abhishek Manu Singhvi, appearing for Kejriwal, said the ED was “attempting, at this stage, to create a non-level playing field” and the summons issued to the AAP convenor was “vague, arbitrary and amount to a fishing and roving inquiry” in as much as it does not disclose the capacity in which he is being summoned – as an individual, a CM or national convenor of AAP.

The summons, Singhvi said, also don’t disclose the “details of the reason”, whether he is a “witness or a suspect”, and are devoid of any information or document required from the CM.

He submitted there is no cooperation issue on behalf of his client who, “without prejudice to his rights”, has “conveyed his willingness to respond to any questionnaire”.

“Despite this, the ED has sent another summons on March 16 and he (Kejriwal) apprehends he will be arrested without any cause or reason. The arrest will be in grave violation and infraction of the fundamental right to life and liberty. The March 16 summons was issued on the same day on which the general election schedule was declared. The ED has been calling since last year, they can’t wait for two more months?… the summons were sent with an oblique motive to arrest him. Investigation has been going on since August 2022 and as many as 6 prosecution complaints and 25,000 documents stand filed in this case. He is also not a man who can flee; he is in the public eye…,” Singhvi said.

He added that ED must demonstrate the “necessity to arrest” as it cannot be a “carte blanche” to say that merely because it has the power, it can exercise it. He also referred to various interim orders of the Supreme Court and the HC division bench, where interim protection from any coercive action was granted to people being probed by the ED.

Appearing for the ED, Additional Solicitor General SV Raju opposed the application on the ground that it has to follow the main matter which was adjourned to April 22, adding that the interim application was “mischievously moved”.

“… You can’t jump the gun; put the cart before the horse. The court has to hear first on maintainability. They (petitioner) have to demonstrate first that it is maintainable; without demonstration, they can’t get interim relief,” Raju said.

On interim orders of protection granted to various persons under PMLA, Raju said these cannot be relied upon as precedent and that it was “unheard of”.
During the hearing, the bench orally asked Raju, “You are sending summons after summons. What prevented you from arresting him?”

Raju replied: “Where did we say we are calling him for arrest? We have said, ‘come, we are interrogating’. Our right to arrest is there but we are only asking him to come and give explanation.”

On the court’s query, Raju submitted that as of “today”, Kejriwal has been called in his “individual capacity”.

On prayers in the plea concerning the inclusion of a political party under the ambit of ‘person’ in the PMLA as well as on the validity of other provisions Raju said, “The petition has been filed in Kejriwal’s private capacity, not in his official capacity. If AAP wants to say it can’t be made an accused, then it has to come to the court… In any case, there is a presumption of constitutional validity of these provisions until they are struck down. If the court has to give him relief, the court has to say these provisions are bad and illegal and then give relief. Today, there is no complaint against AAP and it’s not an accused…A person who is not even made an accused is not entitled to be heard”.

Countering this argument, Singhvi, in a rejoinder, submitted that “conceptually”, it is not possible for the ED to call Kejriwal except as the convener of the political party, adding that as an individual he has no role.

During the hearing, the agency also placed before the bench the documents on its probe, stating that “there is material to call him for interrogation”.