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The Supreme Court on Friday granted interim bail to Delhi Chief Minister Arvind Kejriwal in a money laundering case lodged by the Enforcement Directorate (ED) in the alleged excise policy scam but he will remain in jail as the CBI had arrested him in a related matter.
A bench of justices Sanjiv Khanna and Dipankar Datta referred to a larger bench, preferably of five judges, for in-depth consideration of three questions on the aspect of "need and necessity of arrest" under the Prevention of Money Laundering Act (PMLA).
Kejriwal was also arrested by the CBI on June 26 in connection with the corruption case related to the alleged excise policy scam.
The plea challenging his arrest by the CBI is pending before the Delhi high court. The matter relates to alleged corruption and money laundering in the formulation and execution of the Delhi government's excise policy for 2021-22, which has now been scrapped.
The top court said since it is referring the matter to a larger bench despite its findings on "reasons to believe" under section 19(1) of PMLA, which deals with ED's power to arrest, it deemed it necessary to grant interim bail to Kejriwal.
"Given the fact that right to life and liberty is sacrosanct, and Arvind Kejriwal has suffered incarceration of over 90 days, and that the questions referred to above require in-depth consideration by a larger bench, we direct that Arvind Kejriwal may be released on interim bail ... on the same terms as imposed vide the order dated May 10, 2024," the bench said in its 64-page verdict.
While releasing Kejriwal on interim bail on May 10 to campaign for the Lok Sabha polls, the top court had imposed conditions on him that he will not visit the CM office or the Delhi Secretariat during the interim relief.
Besides imposing a slew of conditions, it had asked Kejriwal not to sign any official file unless absolutely necessary to obtain the lieutenant governor's sanction during the 21-day interim bail period.
The bench said it is conscious that Kejriwal is an elected leader and chief minister of Delhi, a post holding importance and influence.
"We have also referred to the allegations. While we do not give any direction, since we are doubtful whether the court can direct an elected leader to step down or not function as the chief minister or as a minister, we leave it to Arvind Kejriwal to take a call," it said.
The top court said even this aspect whether an elected leader should step down from a constitutional post can be dealt by the larger bench.
The three questions referred to the larger bench include -- whether the "need and necessity to arrest" is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the PMLA and whether the "need and necessity to arrest" refers to the satisfaction of formal parameters to arrest and take a person into custody, or it relates to other personal grounds and reasons regarding necessity to arrest a person in the facts and circumstances of the said case?
The bench said the third one is if both the questions are answered in the affirmative, what are the parameters and facts that are to be taken into consideration by the court while examining the question of "need and necessity to arrest"?
It directed the registry to place the matter before Chief Justice DY Chandrachud for constitution of a bench.
The bench said time and again, courts have emphasised that power to arrest must be exercised cautiously to prevent severe repercussions on life and liberty of individuals.
"Such power must be restricted to necessary instances and must not be exercised routinely or in a cavalier fashion," it said.
It said any undue indulgence and latitude to ED will be deleterious to the constitutional values of rule of law and life and liberty of persons.
"An officer cannot be allowed to selectively pick and choose material implicating the person to be arrested. They have to equally apply their mind to other material which absolves and exculpates the arrestee. The power to arrest under section 19(1) of the PMLA cannot be exercised as per the whims and fancies of the officer," it said.
The bench highlighted that according to data available on ED's website, as on January 31, 2023, a total of 5,906 ECIRs were recorded and searches were conducted in 531 by issue of 4,954 search warrants.
"The total number of ECIRs recorded against ex-MPs, MLAs and MLCs was 176. The number of persons arrested is 513. Whereas the number of prosecution complaints filed is 1,142. The data raises a number of questions, including the question whether the DoE (Directorate of Enforcement) has formulated a policy, when they should arrest a person involved in offences committed under the PMLA," it said.
Justice Khanna, who penned the verdict, held the accused is entitled to challenge his arrest under section 19 (1) of the PMLA and the court can examine its validity on soundness of "reasons to believe", based upon the material available with the authorised officer.
"We are concerned with violation of personal liberty, and the exercise of the power to arrest in accordance with law. Scrutiny of the action to arrest, whether in accordance with law, is amenable to judicial review. It follows that the "reasons to believe" should be furnished to the arrestee to enable him to exercise his right to challenge the validity of arrest," it said.