Buzz around Delhi CM Arvind Kejriwal's arrest by CBI; Here is what probe agency had to say

NEW DELHI: Delhi high court on Tuesday stayed a trial court's order granting bail to chief minister Arvind Kejriwal in the excise policy case. A vacation bench of Justice Sudhir Kumar Jain allowed Enforcement Directorate's application seeking a stay on the bail order. The court said vacation judge Niyay Bindu had passed the order without going through ED's entire material on record, which reflected "perversity".
The HC bench said it couldn't comprehend how the trial court says in para 16 of the order that it was not possible to go through thousands of pages of documents filed by the respective parties but in para 36 asserts that relevant arguments and contentions raised on behalf of the parties have been dealt with.
Taking note of the trial court's observation that ED's action was "mala fide" as material against Kejriwal was available with ED in July 2022 but he was called only in Aug 2023 and that the agency had failed to deal with this objection of the Delhi CM, the HC bench said, "The vacation judge...following judicial discipline should not have observed in para 27 of the impugned order that there was mala fide on the part of ED, particularly in light of an observation made in judgment dated 09.04.2024..."
The bench pointed out that the coordinate bench of the HC had in that order observed that there was absence of any mala fide intention on the part of ED. The HC was then dealing with the legality of the arrest of Kejriwal by ED. HC pointed out that although SC granted leave against that judgment dated April 9, it did not stay its operation.
Responding to the argument by Kejriwal's counsel that his arrest was bad and the April 9 judgment of the high court upholding his arrest by ED had also not attained finality, HC said the same is required to be dealt with at the time of consideration of the agency's main petition.
The bench added that at this stage, it cannot be said that the arrest and remand of Kejriwal was not in accordance with the law and that his personal liberty was curtailed without following the procedure established by law.
Referring to ED's contention before the trial court about the vicarious liability of the CM under Section 70 of PMLA, the bench said ED's written note had mentioned it but did not find a place in the trial court order. The section deals with "offences by companies" and the agency is of the view that this empowered it to book a political party too.
The HC bench rejected the argument of senior advocate Abhishek Manu Singhvi that Kejriwal did not misuse the interim bail granted by SC on May 10 after taking into consideration all objections of ED, including objections/contentions raised in the present petition.
Citing the SC bail order dated May 10, the HC bench said though there is no allegation of misuse of bail, the CM had not been granted interim bail on merit but in the context of the Lok Sabha elections.
The HC also rejected the trial court's finding that unless and until the exercise of tracing the remaining amount of the proceeds of crime, i.e. Rs 60 crore, was completed by ED, Kejriwal cannot remain behind bars without proper evidence against him.
"The perusal of the note submitted by ED before the special judge/vacation judge reflected that the said plea was encountered by ED but not sufficiently and adequately dealt with by the vacation judge," the HC said.
"The vacation judge while passing the impugned order did not appropriately appreciate the material/documents submitted on record and pleas taken by ED, and the averments/grounds as raised in the petition under section 439(2) of the code (CrPC) require serious consideration...Accordingly, the present application is allowed and the operation of the impugned order is stayed," concluded the court.
Section 439(2) of CrPC, 1973, gives the high court or sessions court the power to cancel bail granted under Section 436 of CrPC. It also gives them the power to direct that a person who has been released on bail be arrested and committed to custody.
On ASG Raju's contention that the observations of the vacation judge in the order were not legally tenable and that the order was "perverse", the HC bench said it requires further consideration. Referring to the argument that the bail order was passed on the basis of irrelevant considerations, HC said these points are required to be considered by the roster bench when it considers the main petition.