Delhi HC disposes of PIL to restrain Kejriwal from ‘passing orders’ in custody, tells ED to place matter before special judge

The HC was hearing a public interest litigation (PIL) moved by one Surjit Singh Yadav, seeking a direction to the Centre, the ED and the state of Delhi — through the Chief Secretary — to restrain Kejriwal from issuing directions or orders while in the ED custody. It also sought that a direction may be issued to the ED to not provide a typist, computer, and printer among others to Kejriwal. It further sought a direction for the registration of a complaint, investigation, and prosecution of Kejriwal as to how the directions or orders issued by him while in the police custody reached Delhi minister Atishi.

The agency’s counsel submitted to the HC that it is seized of the issues raised in the PIL, and had handed over a note on the issue, adding that it had not provided any apparatus or infrastructure to the CM in its custody.

Taking note of the submission, a division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora said: “Since respondent no. 4 (Kejriwal) is in police custody by virtue of the order passed by the Special Judge (PC Act), CBI-09 (MP/MLA Cases), Rouse Avenue District Court,  this court directs respondent no. 2 (ED) to bring its comments/ note by way of a status report to the notice of the Special Judge, who is directed to pass appropriate orders in accordance with law, if any.”

While disposing of the PIL, the HC, however, clarified that it had not commented on the “locus standi” of the petitioner to file the PIL and the merits of the allegations made by him. The bench further said that merits of the allegations shall be examined by the Special Judge.

Yadav’s counsel argued in the HC: “He (Kejriwal) has been in ED custody since March 22 and passed orders in his capacity as the CM. No rule allows him to pass orders like this while in custody. Delhi prison rules don’t allow it to pass such orders. Respondent no. 5 (Atishi) who is a minister in the Delhi government is having press conferences showing that he (Kejriwal) has been passing orders in ED custody.”

Senior advocate Rahul Mehra, appearing for the CM, argued: “He (petitioner) has to convince the HC that a case is made out. What is the basis of this? He has to first convince the court as to what brings him here and what the violation is–whether statutory, constitutional. If the issue is already part of investigation, law will take its course. Every second day a petition is filed by him.”

The plea claims that there is a likelihood that the direction or order issued by Kejriwal in his capacity as the Delhi CM may influence the “fair and proper investigation” by the ED. It states that a press conference was organised by the Delhi government on March 24, and that minister Atishi specifically said that “the chief minister of Delhi, from the custody of ED, has sent me this order as per my capacity as Water Minister of Delhi”. The plea argues that to pass an order like this, Kejriwal — while in the ED custody — must have taken the assistance of a typist, computer or printer etc., which is the “misuse of the position and the state machinery”.

According to the PIL, Kejriwal was “breaching his oath of secrecy” administered to him under the Third Schedule of the Constitution of India as any directions or orders issued by him would have to be scanned thoroughly by the ED. It further suggests that as Kejriwal has been issuing directions or orders while in ED custody, there is a “strong likelihood” that the entire state machinery would be utilised for him while he has been in police custody, which may result in “hampering” the fair and proper investigation.