ED not acting without bias: Delhi CM’s bail order by trial court

A Delhi special court granted bail to Delhi chief minister Arvind Kejriwal citing lack of direct evidence against him and a potential bias in the Enforcement Directorate’s (ED) approach during its probe into a money-laundering case linked to alleged irregularities in the 2021-22 excise policy case.

Though the verdict was announced in the open court on Thursday, the order by judge Niyay Bindu was released on Friday morning.

To be sure, ED rushed to the Delhi high court on Friday morning against the judge’s order, complaining that ED hadn’t been given an opportunity to oppose the bail. The high court stayed the CM’s release from the Tihar jail until it hears the ED’s appeal and the response by Kejriwal’s legal team, and extended the stay later in the day until it delivers a verdict early next week.

Meanwhile, the detailed judgment by the trial court shed light on the legal reasoning that led to its decision. In the 25-page judgment, the trial judge took note of the ED’s assertion that the ongoing investigation could be compromised if Kejriwal was released since he might influence witnesses and tamper with evidence.

The court, however, flagged several holes in the probe agency’s investigations so far. The judge pointed out, for starters, that the investigating agency has revealed that only ₹40 crore out of the ₹100 crore that was allegedly laundered has been traced, with no clear timeline for finding the remaining amount.

“On this aspect, ED has failed to clarify as to how much time is required for tracing out the complete money trail. Meaning thereby that until and unless this exercise of tracing out the remaining amount gets completed by ED, accused is supposed to remain behind bars that too without proper evidence against him. This is also not an acceptable submission of ED,” said the judge, finding the agency’s argument unsatisfactory and an example of the lack of concrete evidence against the Aam Aadmi Party (AAP) chief.

The court further noted the ED’s silence on how the proceeds of crime were allegedly used in the Goa assembly elections by the AAP in 2022 -- which was one of the agency’s principal contentions on the use of the money allegedly demanded from a group of liquor dealers from the southern states of India, “South Group”.

“This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilised in the assemble elections at Goa by AAP as admittedly after about two years, the bigger portion of the alleged amount remains to be traced out,” the judgment said.

While Kejriwal’s legal team had argued that the entire case against the CM was based on statements from “tainted co-accused” who had been granted bail or pardon, additional solicitor general (ASG) Raju, representing ED, had told the court that “investigation is an art and sometimes one accused is given lollypop of bail and pardon and induced with some assurance to make them tell the story behind the offence”.

The special judge took a grim view of the ASG’s statement, as she rejected the agency’s assertion that investigation is an “art,” and held that such an approach could lead to biased and unfair imprisonment of individuals based on manipulated evidence.

“The court has to take a pause to consider this argument, which is not a potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/withdrawing exculpatory material from the record,” said the court.

It further noted that “this very scenario (as argued by ASG Raju) constrains the court to draw an inference against the investigating agency that it is not acting without bias.”

The court further noted the lack of incriminating evidence directly linking Kejriwal to the alleged proceeds of crime, despite ED’s claims about his associations with other accused in the case.

“It may be possible that some known persons of the applicant are having involvement in an offence or being known to a third person, involved in the offence, but ED has failed to give any direct evidence against the applicant in respect of the proceeds of crime,” maintained the judge.

Commenting on the need to issue judicial orders notwithstanding the sensitivity of the case, the court referred to a lecture delivered by Chief Justice of India Dhananjaya Y Chandrachud in April, marking the day when the Central Bureau of Investigation was established in 1963.

“On CBI Day celebration, Hon’ble Chief Justice, while addressing the gathering and perceiving the difficult and cumbersome task being done by the trial court special judges attending CBI and ED matters, passed encouraging remarks for such courts for their motivation and inspiration. This is the call of the day that the government authorities as well as the hon’ble higher courts want to reduce the pendency of cases and to expedite the proceedings,” said the judge.

The court highlighted the inherent difficulties and potential injustices faced by accused under PMLA, as it considered the lack of concrete evidence, procedural delays and the principles of fairness and justice while deciding in favour of granting bail to Kejriwal.

“It seems that ED also believes that the evidence on record is not sufficient to proceed against the applicant and it is taking time to procure the same in any manner whatsoever to convince the court with respect to the availability of the evidence against the applicant. The investigation agency should be prompt and fair so that it can be perceived that the principles of natural justice are also being followed by the agency,” the judge said.

Emphasising the need for the investigating agency to act promptly and fairly, adhering to principles of natural justice, the order added: “While the ED relied heavily on the stringent bail conditions under Section 45 of the PMLA, the court noted that the principles of legal fairness and presumption of innocence should not be overshadowed by procedural technicalities.”

Section 45 of PMLA lays down a stringent bail process under the law, requiring the trial court to be convinced that there are reasonable grounds to believe the accused is not guilty and is not likely to commit any offence while on bail.

In its bail order, the trial court also flagged that the agency was silent on certain issues raised by Kejriwal, such as that he was not named either in CBI case or in the first case registered by the ED. “Secondly, the allegations against the applicant have surfaced after the subsequent statements of certain co-accused. Thirdly, this is also an admitted fact that the accused has not been summoned by the court till date, yet he is lying in judicial custody at the instance of ED on the pretext of the investigation still going on,” added the court.

The court acknowledged that holding a constitutional position or having clear antecedents should not be the sole grounds for bail and that the gravity of the alleged offence must also be considered. At the same time, it highlighted that the socioeconomic status and previous conduct of the accused have historically been taken into account by courts. This principle was reinforced by a Supreme Court observation on May 10, noting Kejriwal’s lack of criminal antecedents and his non-threatening nature to society, when the CM was released on a 21-day interim bail for campaigning in the Lok Sabha elections.

Kejriwal has been in custody since March 21 following his arrest by ED, apart from a 21-day interim bail in May for Lok Sabha election campaigning. The bail order came days after the general elections threw up surprisingly positive results for the Opposition but found the AAP winning no seat in Delhi and only three in Punjab, a state where it swept to power in a landslide two years ago.

The bail order had come at a critical juncture as the Supreme Court verdict on Kejriwal’s petition challenging his arrest by ED is awaited.