'If ED Arrest Ignores Materials Favouring Accused, Won't It Be Ground For Bail?' : Supreme Court While Hearing Arvind Kejriwal's Plea

The Supreme Court on Wednesday (May 16) extensively heard the petition filed by Delhi Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA) in connection with the Delhi liquor policy case.A bench of Justices Sanjiv Khanna and Dipankar Datta, which last week allowed Kejriwal's release on interim bail till June 1 for the purposes of election campaigning, heard the arguments of the ED for nearly the whole day. During the proceedings, the primary argument raised by Solicitor General of India Tushar Mehta was the objection to the maintainability of the petition. According to the SG, the remedy of bail under Section 45 PMLA cannot be circumvented by filing a petition under Article 226/227 of the Constitution read with Section 482 of the Code of Criminal Procedure.'Courts can interfere if arrest conditions are violated' : BenchThe SG said that Section 19 PMLA has certain inbuilt safeguards against arbitrary arrests, as it can be carried out only after a high-rank official arrives at a satisfaction based on reasons recorded in writing. He argued that the violation of the conditions for arrest under Section 19 can be examined only by the trial court. "More rigorous the provisions of arrest, less the scrutiny by courts," the SG submitted.However, the bench, orally expressing reservations about accepting this argument, wondered if the jurisdiction of constitutional courts is completely excluded as per the SG, in case there are violations of the conditions for arrest."If arrest is affecting Section 19, are you saying that no plea under Article 226 lies? Can you take it that far?," Justice Datta asked.Justice Khanna added, "If there is a violation of S.19 conditions, obviously courts can interfere. Either remand court, or High Court..226 remedy can't be excluded. We don't exercise that jurisdiction, because there are alternative remedies. But we can't overlook when there is a grave case".The SG replied that in the present proceedings, Kejriwal is calling upon the Court to conduct a "mini-trial" over the subjective satisfaction of the Investigating Officer regarding the necessity of arrest. He added that Kejriwal considers himself as a "special citizen" who is too big to avail the ordinary remedies. The SG speculated whether an ordinary citizen would be able to avail the extraordinary remedy before higher courts bypassing regular courts. He also highlighted that subsequent remand orders of judicial custody were passed with the consent of Kejriwal.The bench however observed that Kejriwal did not by-pass procedure and infact approached the trial Court first. The SG was also reminded that when Kejriwal approached the top Court on first instance, the doors were not opened for him.Justice Datta further posed to the SG whether an accused, while applying for bail, can argue that the arrest was illegal. "Under S.45 PMLA, the onus is on the accused. Is it open for him to show to the Special Judge that arrest is not legal and therefore give me bail?," the judge asked. Answering in the negative, the SG said that such an argument cannot be made at the stage of Section 45 PMLA. "That is the difference between PMLA and CrPC," Justice Datta then remarked.Speaking of the scope of the proceedings, Justice Khanna stated that the issue before the bench pertained to the contours of Section 19 and the limits of judicial scrutiny. The judge asked if the Court should apply the standard "whether a reasonable person conversant with law on the subject would have on this material passed the order." On this, SG replied that the Court should not substitute the view of the Investigating Officer with its view. "Whether material is sufficient to form reasons to believe cannot be examined as court of appeal," he said.Can ED officer ignore materials favoring the accused while exercising power of arrest? : SCAnother pertinent query raised by the bench was whether the investigating officer can ignore exculpatory materials while exercising the powers of arrest. This was in the context of the argument raised by Kejriwal that there were several witness statements exculpating him, which were ignored by the ED and that the officers cherry-picked incriminating materials to arrest him."Assume IO has material in possession. On one hand incriminating, on the other exculpatory. There can't be a dispute that IO has to be fair. If he ignores the latter absolutely and says I have reasons, would it not afford ground for bail?," Justice Datta questioned, before adding, "You have to look into the material. Otherwise how do we come to finding it is based on no material? You can't say only one side has to be seen by IO" ."If there are 10 evidences, Investigating Officer has to weigh what he trusts. Would that exercise be done by court again to come to a different conclusion?" SG submitted in response.Justice Datta countered, "You say if IO considers material... but if that does not ...

'If ED Arrest Ignores Materials Favouring Accused, Won't It Be Ground For Bail?' : Supreme Court While Hearing Arvind Kejriwal's Plea

Debby Jain

The Court told the ED that post-arrest materials cannot be used to justify arrest.

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