‘Law above politics’: Delhi High Court upholds Arvind Kejriwal’s arrest

The Delhi high court on Tuesday rejected Delhi chief minister Arvind Kejriwal’s petition to release him from jail, noting that the Enforcement Directorate (ED) has sufficient evidence “at this stage which points out towards the guilt” of the Aam Aadmi Party (AAP) convener for the commission of the offence of money laundering in relation to the Delhi excise policy case.
The 106-page judgment noted that ED had “sufficient” materials to justify the arrest of Kejriwal, who cannot be allowed to take the plea of political vengeance ahead of the Lok Sabha elections after choosing to skip nine ED summonses issued to him over the last six months, since the law does not allow any special privilege to a CM or any other person in power. According to the court, ED cannot be blamed for choosing the timing of Kejriwal’s arrest after he pushed the agency to a point where it had no other option but to arrest him.
Read here: Arvind Kejriwal’s arrest: After setback in HC, AAP says it is hopeful of relief from SC
Affirming Kejriwal’s arrest on March 21, the high court noted that the material on record suggests that “Kejriwal had allegedly conspired with other persons and was involved in the formulation of Delhi excise policy 2021-22, in the process of demanding kickbacks from the South Group, as well as in generation, use and concealment of proceeds of crime”.
The single judge bench of justice Swarana Kanta Sharma added: “He is allegedly involved in the offence of money laundering in two capacities. Firstly, in his personal capacity as he was involved in the formulation of the excise policy and in demanding kickbacks. Secondly, in his capacity as the national convener of the Aam Aadmi Party as per Section 70(1) of PMLA, for use of proceeds of crime of ₹45 crore in the election campaign of AAP in 2022 Goa elections.”
The ruling highlighted the provisions of the Prevention of Money Laundering Act (PMLA) and Section 70(1), which make Kejriwal liable for the affairs of the AAP and potentially subject to charges of money laundering. However, it also acknowledged Kejriwal’s right to prove his innocence or lack of knowledge of any wrongdoing by the party at a later stage of the trial proceedings.
The dismissal of the CM’s petition challenging the legality of his arrest and a subsequent remand order of custodial interrogation marks a pivotal moment in the ongoing legal battle surrounding Kejriwal. It is likely to have ripple effects across the political landscape, with potential ramifications for both the legal proceedings and the broader strategy of the AAP days before the general elections are slated to begin. While Kejriwal’s opponents may seize upon the court’s decision to discredit his administration and weaken the AAP’s electoral prospects, the party will mull reassessing its legal and political strategy in the lead-up to crucial polls.

To be sure, the high court clarified that its findings will not tantamount to an expression of opinion on the merits of the case during trial.
Senior AAP leader and Delhi minister Saurabh Bharadwaj said Kejriwal will move the Supreme Court soon and added that the case was the “biggest political conspiracy of the country.” BJP leader Shehzad Poonawalla said that the high court order had exposed Kejriwal.
The high court delved into several key aspects of the case, including allegations of kickbacks, utilisation of funds during Goa elections and the role of witnesses and approvers. The court’s decision came after thorough consideration of the evidence presented by ED, including statements from witnesses and approvers, hawala operators, and survey workers associated with the AAP, as well as material seized during Income Tax raids and analysis of Call Detail Records (CDRs).
Senior advocate Abhishek Manu Singhvi appeared in the case for Kejriwal while additional solicitor general SV Raju represented ED.
Singhvi had questioned the timing of Kejriwal’s arrest, arguing it straightaway affects the level playing field in the upcoming elections and threatens the conduct of fair and democratic elections. Rejecting this plea, the court noted that despite being summoned nine times over six months, Kejriwal failed to join the investigation or present himself before ED. It held that his non-cooperation impacted the progress of the probe and necessitated his arrest for custodial interrogation. It further held that a person being summoned has no right to enquire about whether he was being summoned as a witness or an accused but was only under a legal obligation to join the probe.
“This court holds that the issue of arrest has to be adjudicated as to whether it was illegal or not within the parameters of law, by application of law and not by political rhetoric…this court has to adhere to its constitutional duty of applying law to the facts of a case, howsoever complex they may be sans the political equations between parties as the issue before this court does not concern two political parties but an investigating agency on one hand and an alleged accused who happens to be a chief minister on the other hand,” it said.
Justice Sharma also shot down Singhvi’s contention that after Kejriwal skipped nine summonses, ED could have questioned him through video-conferencing or by sending him a questionnaire or by visiting his residence to record his statement.
The court further said there was prima facie evidence suggesting that Kejriwal and AAP received kickbacks amounting to ₹100 crore from the South liquor lobby, adding that a portion of these funds, approximately ₹45 crore, was allegedly utilised by the party during the Goa elections in 2022.
“It emerges from the records produced before this court, i.e. the statements of witnesses recorded by the Directorate of Enforcement, including the hawala operators as well as survey workers, area managers, assembly managers etc. engaged by AAP, corroborated with CDR analysis and material seized during IT raids, that amount of ₹45 crore, which is allegedly the proceeds of crime in this case, was utilised by AAP in the Goa elections,” stated the bench.
Non-recovery of this money, the court held, can be of little value or importance as part of the money already stands spent in the Goa assembly polls. “Once there is prima facie material regarding laundering of the kickbacks on Goa elections and the money being already spent for the said purpose in the year 2022 itself, the recovery in the year 2024 or non-recovery of any remaining amount will become clear only once prosecution complaint (charge sheet) is filed,” noted the court, pointing out that ED has also recorded the statement of one of the candidates of AAP who contested in the 2022 Goa elections.
According to the court, “the cumulative effect of the material collected” regarding Kejriwal’s role, both in his personal capacity in formulation of the excise policy and demanding kickbacks from the South Group, and in his capacity as the AAP national convener in utilisation of proceeds of crime during Goa elections, reflected the ‘reasons to believe’ that the petitioner was ‘guilty of offence of money laundering’ in terms of Section 19 of PMLA”.
“The need to interrogate the petitioner and confront him with the statements of witnesses, and other material as well as digital evidence, coupled with the conduct of petitioner of not joining investigation pursuant to service of nine summonses for a period of six months, necessitated the arrest of petitioner Sh Arvind Kejriwal,” said the bench.
Addressing arguments regarding the reliability of witness statements and the process of granting pardon to the approvers, it highlighted the judicial nature of these processes and rejected claims casting doubt on the credibility of witnesses and approvers. It highlighted the longstanding legal framework governing the role of approvers and their statements in criminal proceedings.
Kejriwal had argued to impeach the “statements of approvers” Raghav Magunta and Sarath Reddy, but the court said that the law had been in vogue for more than a 100 years and was not enacted recently to implicate the CM.
Singhvi had contended that the statement of Sarath Reddy is also not reliable because it has recently been discovered that he paid an amount of ₹60 crore to the BJP through electoral bonds.
Read here: Arvind Kejriwal’s wife, secretary meet him in Tihar jail
Choosing to steer clear of this, the judge held: “In this court’s opinion, who gives tickets for contesting elections to whom or who purchases electoral bonds for what purpose is not the concern of this court, as this court is required to apply the law and the evidence before it as it is and in the context in which it has been placed before it.”
Delhi excise policy case has embroiled several high-profile names, including former Delhi deputy chief minister Manish Sisodia and Bharat Rashtra Samithi (BRS legislator) K Kavitha, who are presently incarcerated in the Capital’s Tihar jail.
AAP MP Sanjay Singh’s release on bail last week came after the top court asked the agency why Singh should be kept behind bars after serving six months in jail, considering that there didn’t appear to be any concrete evidence against him.