Delhi HC denies bail to Kejriwal, says trial court 'did not apply mind'

New Delhi: The Delhi High Court on Tuesday allowed the Enforcement Directorate's plea for stay of the bail order granted in favour of Delhi Chief Minister Arvind Kejriwal, saying the vacation Judge did not appropriately consider the materials on record in the liquor policy scam case.

A single judge bench of Justice Sudhir Kumar Jain said, "The observation by the trial court that voluminous material cannot be considered is totally unjustified and it shows that the trial court has not applied its mind to the material."

The HC said the observation was "uncalled for, unwarranted and out of context" and the judge should refrain from making such remarks as she was required to consider every important and relevant document.

It also said the vacation court also ought to give adequate opportunity to the Enforcement Directorate to argue the bail application.

"There was a strong argument that the twin condition of Section 45 PMLA was not deliberated by the vacation judge. This court is of the opinion that Section 45 PMLA has not been properly discussed by the trial court," the bench said.

"The trial court should have at least recorded its satisfaction about fulfillment of twin conditions of section 45 of PMLA," the bench added.

The court also pointed out the most important point was the Additional Solicitor General had referred to para 27 of the trial court order where the judge talked about mala fide by the ED. 

"But this court is of the opinion that a coordinate bench of this court has on April 9, 2024 said there was no mala fide on the part of the ED. The trial court should not have given any finding which is opposite to the finding of the High Court," the bench said.

The court reminded the vacation judge of the "judicial discipline".

The court also noted the trial court has not dealt with the argument of Section 70 PMLA as well.

"This court is also of the opinion that the Supreme Court granted bail to Kejriwal for Lok Sabha. Once his plea challenging arrest has been dismissed by the High Court it cannot be said that his personal liberty was curtailed in violation of the law," the bench said.

"The vacation judge while passing the 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 Criminal Procedure Code require serious consideration while dealing with said petition," the bench said.

The HC also said although, there is no allegation of misuse of interim bail by the respondent but one fact cannot be lost sight is that Kejriwal was not granted interim bail on merit but in background of 18th Lok Sabha General Elections.

On June 24, the Supreme Court had declined to grant any relief to Kejriwal on his plea questioning the June 21 order of stay passed by the Delhi High Court on his bail by the district court in the liquor policy scam case.

A bench of Justices Manoj Misra and S V N Bhatti, however, had said the High Court's order was a bit unusual as normally the stay order is passed on the date of hearing. The court, however, added it would not be appropriate to prejudge the matter at this stage.

The apex court fixed the matter for consideration on Wednesday.

The High Court had on Friday reserved the judgement on the ED's plea for stay appeal.

It had said until it delivered the order on ED's application, the bail order would remain stayed.

On June 20, in a relief to Kejriwal, Rouse Avenue Court's Vacation Judge Niyay Bindu passed the order granting him bail in the case. 

However, on June 21, the ED rushed to the High Court as the district court's judge had rejected a request for stay for 48 hours to file an appeal.

Kejriwal had remained on interim bail by the Supreme Court's order on May 10 for campaign during the general elections. However, he surrendered on June 2 as per the apex court's order. The top court however had then said he can approach the trial court for bail.

He was arrested by the Enforcement Directorate on March 21 in the ECIR lodged on August 22, 2022.