Delhi HC reserving order unusual, will wait for its ruling: Supreme Court to Arvind Kejriwal

The vacation bench of Justices Manoj Misra and S V N Bhatti noted that the High Court was yet to pronounce the final judgment in the matter.

Justice Misra said, “Normally, in a stay order, judgments are not reserved. They are passed at the hearing itself, on the spot. So, a bit unusual, but we will have it the day after tomorrow.”

In its order, the bench said, “Perusal of the impugned order would reveal that parties were given opportunities to file short submissions by June 24, 2024. Additional Solicitor General S V Raju, who appears for the Enforcement Directorate, submits that the order on the stay application would be passed shortly and, therefore, it would be appropriate that this court adjourns the proceedings to a date so that it may have the opportunity of going through the order.”

“We deem it appropriate to direct that this matter be put up the day after tomorrow… In the meantime, if an order is passed by the High Court, a copy of the same shall be brought on record,” it said.

The bench said it would wait for the High Court order to come on record without which it would not be able to ascertain the reasoning.

While Kejriwal’s counsel questioned the manner in which the High Court put the trial court order on hold, the ED contended that the trial court had admitted that it had passed the order without going through all the case records.

Appearing for Kejriwal, Senior Advocate A M Singhvi said, “Contrary to Your Lordships’ well-established norms that a bail granted is very different from a bail reversed or cancelled, after the bail is granted on June 20, Mr Raju makes a mention to the High Court on June 21. At the mentioning stage itself, in my presence, the learned judge stays this order. He then proceeds to hear us for some time that day at length and then reserves order… The procedure of staying bail on the first day, first attempt, first challenge, is unprecedented. Second, and more important, the balance of convenience is totally in my favour. If the judgment is reversed, the man will go back to jail as he did after three weeks (of interim bail) under a Supreme Court direction. The Supreme Court had directed him to be out for 2.5-3 weeks. He went back immediately.”

Singhvi said Kejriwal is “not a flight risk”. “Suppose the High Court dismisses the appeal, how do they compensate for the loss of time in which I have been kept behind (in custody) after having got bail? The procedure is unknown. The stay is granted first and arguments are heard later,” he said.

Justice Misra said as per the interim order, the parties were given time until June 24 to file short, written submissions and said this means “the order is likely to come shortly in a day or two”.

“If we pass an order right now, we will only be prejudging the issue. It is a High Court which is hearing the matter, not a subordinate court,” he said.

Senior Advocate Vikram Chaudhary, also appearing for Kejriwal, referred to the Supreme Court’s May 10 order granting him interim bail. He submitted that the apex court had said “no doubt, serious allegations have been made, but he has not been convicted. He does not have any criminal antecedents, he is not a threat to the society. The investigation in the present case has remained pending since August 2022”.

Solicitor General Tushar Mehta, however, said the interim bail was for the limited purpose of campaigning for the Lok Sabha elections.

Chaudhary said the Supreme Court had given him liberty to file a bail application before the trial court

Singhvi said, “The (High Court) judge prejudges the matter at 10.30 am because an order is passed without reasons.”

The bench asked whether the satisfaction with regard to the twin conditions in PMLA Section 45 was recorded in the trial court order. “No,” Raju said.

Mehta said, “The (trial) court starts by saying this is a high-profile case which it is not. For the court, every person is an aam aadmi and nobody is high profile or low profile.”

“More importantly, the court records in the order: who has the time to go through the records of the case. Therefore, that condition (under section 45) is not satisfied. It is violative of Section 45,” Mehta said.

“The court says it has not looked at the papers and has passed the order. How can the order be passed?” Raju said.

Chaudhary said the ED had filed its application seeking stay even before the trial court order was uploaded.