Arvind Kejriwal
versus
Directorate of Enforcement (Criminal Appeal No. 2493 of 2024)Youtube Video Explainer:
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I. Facts :
1. Arvind Kejriwal filed an appeal against a Delhi High Court judgment that rejected his criminal writ petition challenging his arrest by the Directorate of Enforcement (DoE).
2. The arrest was made under the Prevention of Money Laundering Act, 2002 (PML Act).
3. The Central Bureau of Investigation (CBI) registered an initial case in August 2022 regarding offenses related to the Indian Penal Code and Prevention of Corruption Act.
4. The case was based on a complaint by the Lieutenant Governor of Delhi.
5. The CBI filed chargesheets alleging criminal conspiracy in framing the excise policy for liquor sales in Delhi.
6. Arvind Kejriwal was not an accused in these CBI chargesheets.
7. The DoE recorded an ECIR based on the CBI’s case and filed multiple prosecution complaints.
8. Kejriwal was named as an accused in the seventh supplementary prosecution complaint by the DoE.
9. Summons were issued to Kejriwal under Section 50 of the PML Act.
10. There were conflicting claims about the legality of these summons and Kejriwal’s non-appearance.
11. Kejriwal was arrested on 21.03.2024.
12. The DoE produced “reasons to believe” documents to invoke Section 19(1) of the PML Act for the arrest.
13. The contents of these reasons were identical to the “grounds of arrest” furnished to Kejriwal upon his arrest.
14. The DoE alleged that Kejriwal was the “kingpin/key conspirator” in the case.
15. The case involved allegations of cartel formation in the liquor policy.
16. There were claims of kickbacks and money transfers related to the policy.
17. The DoE alleged use of proceeds in election campaigns.
18. Nine summons were issued to Kejriwal between October 2023 and March 2024.
19. Most material relied upon in the “reasons to believe” predated July 2023.
20. Kejriwal had been incarcerated for over 90 days at the time of this judgment.
II. Points of Law :
1. Interpretation of Section 19(1) of the PML Act regarding the power to arrest.
2. The scope of judicial review in examining the legality of arrests under the PML Act.
3. The concept of “reasons to believe” as a precondition for arrest under Section 19(1).
4. The distinction between “reasons to believe” and “grounds of arrest”.
5. The applicability of the principle of “necessity to arrest” in PML Act cases.
6. The interpretation of Article 22(1) of the Constitution regarding communication of grounds for arrest.
7. The role of the magistrate in examining compliance with Section 19(1) before considering custodial remand.
8. The interplay between Section 19 of the PML Act and Section 167 of the Code of Criminal Procedure.
9. The scope of Section 45 of the PML Act regarding bail conditions.
10. The application of the principle of proportionality in cases involving fundamental rights.
11. The interpretation of “material in possession” versus “evidence in possession” in Section 19(1) of the PML Act.
12. The admissibility and weight of approver/witness statements in such proceedings.
13. The scope of judicial review in examining the decision-making process for arrests.
14. The application of the Wednesbury principles of reasonableness in reviewing arrest decisions.
15. The relevance of the doctrine of need and necessity to arrest in PML Act cases.
16. The applicability of Article 14 (equality before law) in arrest decisions under the PML Act.
17. The interpretation of Section 26 of the Indian Penal Code regarding “reason to believe”.
18. The relevance of Section 41A of the Code of Criminal Procedure in PML Act cases.
19. The interpretation of Sections 437, 438, and 439 of the Code of Criminal Procedure in relation to PML Act cases.
20. The scope of Section 50 of the PML Act regarding summons and its relation to arrest decisions.
21. The application of the principle of parity in arrest decisions under the PML Act.
22. The relevance of the right to life and liberty (Article 21) in PML Act cases.
23. The interpretation of Section 173(6) of the Code of Criminal Procedure in relation to PML Act cases.
24. The scope of judicial interference in ongoing investigations under the PML Act.
25. The interpretation of Sections 227 and 228 of the Code of Criminal Procedure in relation to PML Act cases.
III. Arguments Forwarded :
Arvind Kejriwal’s side:
1. The arrest violated Section 19(1) of the PML Act, making both the arrest and subsequent remand order illegal.
2. The “reasons to believe” document selectively referred to implicating material while ignoring exculpatory evidence.
3. Co-accused were coerced into accepting the DoE’s version of facts due to prolonged incarceration.
4. There was no necessity to arrest on 21.03.2024 as most material relied upon predated July 2023.
5. Mere non-cooperation with summons under Section 50 of PMLA is not enough to justify arrest under Section 19.
Directorate of Enforcement’s side:
1. The investigation is complicated due to it being a case of political corruption.
2. Independent witnesses are not available, and co-accused were initially reluctant to name top political stakeholders.
3. Admissibility or veracity of approver/witness statements should be tested during trial, not in these proceedings.
4. Statements under Section 164 were recorded before a Magistrate and are corroborated by material evidence.
5. The test of “necessity to arrest” is satisfied due to Kejriwal’s failure to appear despite nine summons.
IV. Cases Cited:
1. Pankaj Bansal case: Interpreted Section 19 of the PML Act in relation to Article 22(1) of the Constitution.
2. V. Senthil Balaji case: Reiterated the requirement for recording “reasons to believe” in writing before making an arrest under the PML Act.
3. Madhu Limaye case: Emphasized that remand cannot cure constitutional infirmities in an arrest.
4. Prabir Purkayastha case: Applied principles similar to the PMLA Act to provisions in the Unlawful Activities (Prevention) Act.
5. Vijay Madanlal Choudhary case: Distinguished between requirements of Section 19(1) of the PML Act and Section 41 of the Code of Criminal Procedure.
6. Padam Narain Aggarwal case: Discussed the concept of “reason to believe” in enforcement actions.
7. S. Narayanappa v. CIT case: Held that reasonable grounds for belief in non-disclosure of material facts are sufficient for an officer to take action.
8. Barium Chemicals Ltd. case: Discussed the concept of “reason to believe” and how it should not be merely a formality or an arbitrary power.
9. Joti Parshad v. State of Haryana case: Defined “reason to believe” as a higher level of state of mind than mere suspicion or doubt.
10. A.S. Krishnan and others v. State of Kerala case: Explained “reason to believe” as circumstances that would lead a reasonable person to conclude through probable reasoning.
11. Arnesh Kumar v. State of Bihar case: Laid down that an officer must consider the necessity to arrest before arresting a person.
12. Mohammed Zubair v. State of NCT of Delhi case: Held that the power to arrest is not unbridled.
13. Joginder Kumar v. State of Uttar Pradesh case: Explained the distinction between the power to arrest and the necessity to arrest.
14. Siddharth v. State of Uttar Pradesh case: Reiterated the importance of personal liberty as a constitutional mandate.
15. P. Chidambaram v. Directorate of Enforcement case: Held that arrest is part of investigation intended to secure evidence and discover material facts.
V. Judgment :
1. The court referred the case to a larger bench for consideration of specific questions of law.
2. The court granted interim bail to Arvind Kejriwal on specific conditions.
3. The court recognized the need to balance individual rights with public interest in such cases.
4. The court emphasized the importance of examining the “need and necessity to arrest” in PML Act cases.
5. The court questioned whether mere satisfaction of formal parameters is sufficient for arrest under Section 19(1) of the PML Act.
6. The court raised concerns about the uniformity and consistency of the DoE’s actions in similar cases.
7. The court acknowledged the principle of proportionality in cases involving fundamental rights.
8. The court recognized Kejriwal’s status as an elected leader and Chief Minister of Delhi.
9. The court left it to Kejriwal to decide whether to continue functioning as Chief Minister.
10. The court directed that the observations made in the judgment should not be construed as findings on the merits of the case/allegations.
11. The court emphasized that facts alleged have to be established and proved.
12. The court directed that any pending or future application for regular bail should be decided on its own merits.
13. The court framed specific questions for consideration by the larger bench.
14. The court allowed for the possibility of these questions being reformulated, substituted, or added to by the larger bench.
15. The court directed the Registry to place the matter before the Chief Justice of India for constitution of an appropriate bench.
16. The court suggested the possibility of a Constitution Bench to consider the framed questions.
17. The court set bail conditions including a bond of Rs.50,000/- with one surety.
18. The court prohibited Kejriwal from visiting the Office of the Chief Minister and the Delhi Secretariat.
19. The court restricted Kejriwal’s ability to sign official files unless necessary for obtaining clearance/approval from the Lieutenant Governor of Delhi.
20. The court prohibited Kejriwal from making comments about his role in the case.
21. The court prohibited Kejriwal from interacting with witnesses or accessing official files connected with the case.
22. The court allowed for the interim bail to be extended or recalled by the larger bench.
23. The court refrained from directing an elected leader to step down or not function as Chief Minister.
24. The court left it to the larger bench to frame questions and decide conditions that can be imposed in such cases.
25. The court emphasized the sacrosanct nature of the right to life and liberty in its decision to grant interim bail.