Kejriwal to Stay in ED Custody as Delhi HC Refuses to Grant Interim Relief, Next Hearing on April 3

New Delhi: In yet another jolt to Delhi Chief Minister Arvind Kejriwal, the High Court on Wednesday refused to interfere with his arrest by the  Enforcement Directorate in the excise policy case.  A bench of Justice Swarana Kanta Sharma issued a notice to the ED and asked the agency to respond by April 2. The High Court dismissed senior advocate AM Singhvi's argument on behalf of Kejriwal, stating that a response from the ED was necessary. The court emphasized its obligation to ensure a fair hearing for both parties.

“Thus, having regard to the nature of issues raised in this petition, this Court is of the opinion that the respondent has to be granted an opportunity to file a reply, as an opportunity for effective representation, and declining this opportunity would amount to denial of fair hearing as well as violation of one of the principles of natural justice i.e., audi- alteram partem, which is applicable to both the parties and not one,” the court said.

For the unversed, Kejriwal in his plea, had challenged his arrest and ED remand, urging the Delhi High Court to order his immediate release from ED custody. The AAP convener had claimed that his arrest on the cusp of elections was against the basic structure of the Constitution. The Aam Aadmi Party (AAP) convener was arrested by ED on March 21 in connection with a money-laundering case linked to liquor scam and was remanded to ED custody till March 28. 

Big Setback For Kejriwal: What Did The Court Say?

"This Court remains conscious of the fact that to reach a conclusion as to whether the petitioner herein is entitled to immediate release or not, this 
Court will necessarily have to decide the issues raised in the main petition, as those issues are the edifice of arguments of the learned Senior Counsel for the petitioner seeking immediate release of the petitioner," the Court observed.

It stated that any order passed in the application for interim release of Kejriwal, pending disposal of his main petition without calling for reply of ED, at this stage, would rather amount to deciding the main petition itself.

This Court remains conscious of the fact that to reach a conclusion as to whether the petitioner herein is entitled to immediate release or not, this Court will necessarily have to decide the issues raised in the main petition, as those issues are the edifice of arguments of the learned Senior Counsel for the petitioner seeking immediate release of the petitioner.

High Court asked ED to file the reply by April 2 and give a copy to Kejriwal's counsels as well.  “No adjournment shall be granted on April 3 when the matter will be heard”, the Court added.

Justice Swarana Kanta Sharma observed that any release order from custody will amount to enlarging Kejriwal on bail or interim bail, as an interim measure.

“The writ jurisdiction under Article 226 of the Constitution of India is not a ready substitute for recourse to the remedy of bail under Section 439 of the Cr.P.C. ordinarily,” the court said.

The court observed that it would be unfair to not give an opportunity to the Directorate of Enforcement to rebut the submissions made by Kejriwal’s counsel by way of filing a detailed response.

Justice Swarana Kanta Sharma said that given the nature of the reliefs sought in Kejriwal's petition, orders cannot be passed without hearing the ED. Sharma added that the Court also cannot presume that ED will have no reply to file and will remain bound only by the contentions raised before the Trial Court.

"This Court also cannot presume that the respondent will have no reply to file and will remain bound only by the contentions raised before the learned Trial Court. Moreso, since there may be some additional material in the possession of the investigating agency, collected during the custodial interrogation of the petitioner herein, which they may wish to place before this Court, which may be crucial to decide the present case. Such material may also be crucial for the petitioner himself," the bench observed.