Interim Bail granted to CM Arvind Kejriwal

In the PMLA case, the Supreme Court granted Delhi Chief Minister Arvind Kejriwal interim bail yesterday and referred his petition to a larger bench, this was done since the constitutional validity of Section 19 of the PMLA Act was upheld by a 3 Judge Bench.

Background

Delhi Chief Minister Arvind Kejriwal was initially arrested by the Enforcement Directorate on 21st March alleging that the Chief Minister demanded 100 crores which then went to the election expenses of the party in Goa. Kejriwal had asked for interim protection from the Delhi High Court which was denied predicating his arrest. Thereafter he approached the High Court with an initial plea challenging his arrest which was dismissed on 9th April. Aggrieved he moved to the apex court with his counsel Senior Advocate AM Singhvi.

Additional Ground to Arrest

The court while providing interim bail to  Arvind Kejriwal held that reasons to believe for arrest are in accordance with S19 of the PMLA however keeping the doctrine of proportionality in mind the Court said that mere interrogation does not provide the Enforcement Directorate power to arrest, there is no such provision under the PMLA.

Furthermore the court referred certain important questions to the larger bench which are crucial in order to decide the fate of the case along with the constitutional validity of certain provisions. The court fel that the question of need and necessity must be read into s19 of the PMLA and it has referred these questions to the larger bench

(a) 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 PML Act?

(b) 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?

(c) If questions (a) and (b) 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”?

‘Reason to believe’

The term “reason to believe” in Section 19 was examined in great length in the 64-page ruling, and it was observed that it is not the same as “grave suspicion”.

According to Section 19, ED personnel are only authorised to make an arrest if they have written documentation supporting their suspicions that the accused has committed a PMLA crime. The court said that the documents should be made available to the arrestee since has a right to challenge the validity of the arrest

“Clearly, “reason to believe” has to be distinguished and is not the same as grave suspicion. It refers to the reasons for the formation of the belief which must have a rational connection with or an element bearing on the formation of belief. The reason should not be extraneous or irrelevant for the purpose of the provision.”

“it would be incongruous, if not wrong, to hold that the accused can be denied and not furnished a copy of the “reasons to believe”. In reality, this would effectively prevent the accused from challenging their arrest, questioning the “reasons to believe”. 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.”

ED argued that “grave suspicion” is adequate justification for filing charges and bringing an accused person to trial. But the court disapproved, declaring,

“The language of Section 19(1) is clear, and should not be disregarded to defeat the legislative intent – to provide stringent safeguards against pre-trial arrest during pending investigations. Framing of the charge and putting the accused on trial cannot be equated with the power to arrest. A person may face the charge and trial even when he is on bail.”

Conclusion

In conclusion, the Supreme Court’s decision to grant interim bail to Delhi Chief Minister Arvind Kejriwal in the PMLA case reflects the judiciary’s careful consideration of constitutional principles and procedural fairness. The referral of crucial questions to a larger bench underscores the ongoing need to clarify the constitutional validity of certain provisions under the PMLA, particularly Section 19. The court’s emphasis on the “need and necessity to arrest” and the distinction between “reason to believe” and “grave suspicion” highlights the importance of safeguarding personal liberty and ensuring that arrests are conducted in strict compliance with the law. By requiring that reasons for arrest be documented and made available to the accused, the court has reinforced the principles of transparency and accountability within the criminal justice system.

This case not only addresses immediate concerns regarding Kejriwal’s arrest but also sets a precedent for future interpretations of the PMLA, aiming to balance the enforcement of anti-money laundering laws with the protection of individual rights. As the larger bench deliberates on these critical questions, the outcome will likely have significant implications for the enforcement of economic offences in India.

In the PMLA case, the Supreme Court granted Delhi Chief Minister Arvind Kejriwal interim bail yesterday and referred his petition to a larger bench, this was done since the constitutional validity of Section 19 of the PMLA Act was upheld by a 3 Judge Bench.

By Aditya Gupta (Intern)
Op Jindal Global University B.A LLB

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