Delhi HC denies protection from coercive action to Arvind Kejriwal

Delhi High Court on Thursday refused to grant chief minister Arvind Kejriwal any protection from coercive action in an alleged money laundering scam linked to the now scrapped Delhi excise policy.

A bench headed by justice Suresh Kumar Kait listed the Aam Aadmi Party (AAP) convenor's application seeking protection for further consideration on 22 April, when his main petition challenging the summons from the Enforcement Directorate (ED) in the case is fixed for hearing, and asked ED to file its response.

"We have heard both sides and we are not inclined at this stage (to grant protection). The respondent is at liberty to file reply," the bench, also comprising justice Manoj Jain, said.

The ED placed before the court documents pertaining to the probe, and said there was material to show the necessity to call Kejriwal for questioning. The application for interim relief forms part of Kejriwal's petition challenging the ED's summonses issued to him for questioning. Kejriwal had moved the court in the wake of the latest summons, the ninth issued by the ED, asking him to appear before it on Thursday.

During the hearing, senior advocate Abhishek Manu Singhvi, representing the AAP chief, also sought a deferment of the summons issued for today. "It is already over. Time is over. He is not attending," additional solicitor-general S.V. Raju, appearing for the ED, said, contending that a person who "flouts the law" is not entitled to be heard.

Singhvi submitted that Kejriwal's arrest was imminent as there was an attempt to create a "non-level playing field" for the upcoming general elections even though there was no necessity to apprehend him after several charge sheets already filed before the trial court.

"If I appear, I will be arrested without any cause or reason. You are calling me from last year. Could you not wait for two more months?" the senior lawyer asked, adding that the federal agency can arrest Kejriwal in June once the elections are over. The summons, he added, were vague, frivolous, for a "roving and fishing inquiry" and a "ploy" for his "illegal arrest" amidst elections.

On being queried by the court as to what prevented him from filing a plea for anticipatory bail in the matter, Singhvi said it was unclear if the CM was being called as a witness or suspect.

Opposing the grant of protection from coercive action, Raju said Kejriwal was being called for questioning in his individual capacity in a case that has been "tested" by several courts, and the agency has not said anything on his arrest. "When did we say we want to arrest? We may arrest, we may not. Our right (to arrest) is there. We said, come and give explanation," he said. "The matter is tested by rejection of a large number of bail of co-accused. Predicate offence is there. Money laundering is made out."

Raju added that no relief with respect to protection from coercive action can be granted by the court when the main petition itself is not maintainable, and the law remains the same even for a chief minister.

Raju also said Kejriwal's plea for protection on the ground that a political party can't be brought within the ambit of the money laundering law was based on a "figment of imagination at this stage".

"We are calling him in his individual capacity. Tomorrow, something may happen. Vicarious liability is also there," Raju said, apparently referring to Kejriwal not holding any ministerial portfolio but heading the government. "If relief is granted, the FIR will be quashed as far as AAP is concerned. It can't be done. Neither AAP nor Arvind Kejriwal are named as accused," he said.

The submission was opposed by Singhvi who said, "Conceptually, there was nothing" for roping in the CM if not as the AAP convenor. "There is nothing except the approver statement... My arrest is imminent. It is the leadership of AAP, not individual (that is under scrutiny)," he argued.

Singhvi also contended that all summonses were issued either at the time of an election or Kejriwal's Vipassana trips, including the latest summons which was issued on the day the schedule for the Lok Sabha elections was announced.

He said Kejriwal cannot have a "sword hanging amidst the elections" and asked why his questioning cannot be permitted through virtual mode or under the protective orders of the court.

On Wednesday, the court had asked the investigating agency to file a response to Kejriwal's petition which sought sections 19, 45 and 50 of the Prevention of Money Laundering Act (PMLA), which deal with arrest, questioning and grant of bail, to be declared as unconstitutional.

The petition also prayed for quashing and setting aside of all proceedings, including the summonses, against Kejriwal in his capacity as the national convenor of a political party or as the chief minister or in any other capacity in the ED case.

In the petition, Kejriwal said he is a "vocal critic" of the ruling party, an opposition leader, and a partner in the INDIA bloc, and the ED, being under the Centre's control, has been "weaponised".

The case pertains to alleged corruption and money laundering in formulating and executing the Delhi government's excise policy for 2021-22, which was later scrapped. AAP leaders Manish Sisodia and Sanjay Singh are already in judicial custody in the case.

Kejriwal's name has been mentioned multiple times in the charge sheets filed by the ED. The agency has alleged that the accused were in touch with Kejriwal to formulate the excise policy that resulted in undue benefits to them, in return for which they paid kickbacks to the AAP.