Why Delhi CM Arvind Kejriwal will not walk out of jail despite interim bail in ED case

While granting Kejriwal bail, the bench of Justices Sanjiv Khanna and Dipankar Datta referred some questions regarding the need and necessity of the arrest to a larger bench of the Supreme Court.

Notably, Kejriwal had moved the high court seeking bail in the CBI case, without first moving the trial court. The CBI’s counsel D P Singh had argued this before a single-judge bench of Justice Neena Bansal Krishna on July 5.

This contention, the high court said, would be considered at the time of arguments. Kejriwal’s bail plea is listed before the high court on July 17. Kejriwal’s writ petition challenging his arrest by the central agency and three-day CBI remand is also listed on the same date.

While appearing for Kejriwal on July 5, Senior Advocate Abhishek Manu Singhvi had argued that the competence of the court to hear bail pleas had been interpreted in various Supreme Court and high court judgments in such cases.

“My lord is already dealing with CBI’s larger issue. Which court could better appreciate the holistic picture than my lords,” Singhvi had then said.

Singhvi had also said during the hearing that this was not a matter related to Section 45 of the Prevention of Money Laundering Act (PMLA). Section 45 of the PMLA refers to “offences which are cognisable and non-bailable”, and also lists the requirements to be followed for granting bail for an offence of money laundering. He had said that there wasn’t the “remotest allegation of the triple test being violated” and that it was not a case of a “proclaimed offender or a terrorist”.

He had said Kejriwal was arrested two years after the CBI First Information Report was registered (in August 2022) and that in between, the Delhi CM was interrogated for “nine hours” in April last year.

Meanwhile, Senior Advocate Vikram Chaudhari, who had also appeared for Kejriwal, had said that while remanding Kejriwal to CBI custody, the trial court had said that Section 41A of the Criminal Procedure Code was not violated and that the arrest was legal. “If that argument has already been dealt with then there is no question of sending us back (to the trial court), it would be futile. My lords are examining that aspect,” Chaudhari had said.

At this point, the high court had said orally, “In how many matters has the Supreme Court and the high court said that ‘please go back on propriety’ not on the law? What all is being argued here is the law on which there is no quarrel. These are all concurrent jurisdictions. I am not on the law…There is also a principle where they are saying that ‘don’t clog the superior court when the remedy is available and please come in a hierarchy’; we will also get a benefit (of the lower courts order). You also will have a chance. There must be some reason why this is to be here.”

Singh, the CBI’s counsel, had then submitted there are four chargesheet already filed in this case and the regular court has been apprised of a lot of material. He had said for “propriety’s sake”, the petitioner should have approached the trial court, “otherwise this will become the norm”.

Kejriwal was arrested on March 21 by the ED in a money laundering case linked to the now-scrapped Delhi excise policy. On June 25, the Delhi High Court stayed a June 20 trial court order granting him bail in the ED case. The next day, Kejriwal withdrew his plea in the Supreme Court against the high court’s decision to reserve its verdict on the ED plea to stay the trial court bail order.

On June 25, Kejriwal was questioned by the CBI in Tihar jail, where he was in judicial custody over the money laundering case, linked to the ED’s excise policy case probe. On June 26, the CBI placed Kejriwal under “formal” arrest in the corruption case and produced him before the Rouse Avenue court of Special Judge Amitabh Rawat. The agency sought his custody for five days to confront him with the evidence in the conspiracy case linked to excise policy. Sending Kejriwal to three-day CBI custody, Judge Rawat had said that his arrest was “not illegal” and that the agency should not be “overzealous”.

On June 29, the trial court sent Kejriwal to judicial custody until July 12 after his three-day custody ended.