While granting bail to interim Kejriwal, SC asks ED if it has uniform policy on when person should be arrested under PMLA

New Delhi [India], July 12 : The Supreme Court on Friday while granting interim bail to Delhi Chief Minister Arvind Kejriwal in the excise policy case registered by the Enforcement Directorate (ED) questioned whether the central agency has a 'uniform policy' on when a person should be arrested under the Prevention of Money Laundering Act (PMLA).
A bench of Justices Sanjiv Khanna and Dipankar Datta referred to the official data available on the ED's website regarding its cases and said, "The data raises a number of questions, including the question whether the ED has formulated a policy, when they should arrest a person involved in offences committed under the PML Act."
It noted that as of January 31, 2023 (the last date on which the site was updated), 5,906 Enforcement Case Information Reports (ECIRs) have been registered, however, the search was conducted in 531 ECIRs by issue of 4,954 search warrants. The total number of ECIRs recorded against ex-MPs, MLAs and MLCs was 176, it said.
"The number of persons arrested is 513. Whereas the number of prosecution complaints filed is 1,142," the judgement stated.
The apex court opined that ED should act uniformly, consistent in conduct, confirming one rule for all.
"We are conscious that the principle of parity or equality enshrined under Article 14 of the Constitution cannot be invoked for repeating or multiplying irregularity or illegality. If any advantage or benefit has been wrongly given, another person cannot claim the same advantage as a matter of right on account of the error or mistake. However, this principle may not apply where two or more courses are available to the authorities. The doctrine of need and necessity to arrest possibly accepts the said principle. Section 45 gives primacy to the opinion of the ED when it comes to grant of bail. ED should act uniformly, consistent in conduct, confirming one rule for all," the top court said.
It also said that arrest under Section 19 of the Prevention of Money Laundering Act (PMLA) cannot be made simply for the purposes of investigation.
"Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence. While there is an element of hypothesis, as oral evidence has not been led and the documents are to be proven, the decision to arrest should be rational, fair and as per law. Power to arrest under Section 19(1) is not for the purpose of investigation. Arrest can and should wait, and the power in terms of Section 19(1) of the PML Act can be exercised only when the material with the designated officer enables them to form an opinion, by recording reasons in writing that the arrestee is guilty," the judgement stated.
The verdict of the apex court came on a plea of Kejriwal against his arrest by ED and subsequent remand.
The bench referred the matter to larger bench for three questions of law for consideration, which are, 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?
Second, "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?"
And third, "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"?
While grating interim bail to Kejriwal it also put certain conditions on him including he shall not visit the CM office and Delhi Secretariat during the period of interim release; he shall not sign official files unless it is required and necessary for obtaining clearance/approval of the Lieutenant Governor of Delhi; he will not make any comment with regard to his role in the present case; he will not interact with any of the witnesses and/or have access to any official files connected with the case.
As it was granting interim bail to Kejriwal, it noted that the fact that "right to life and liberty is sacrosanct", and Kejriwal has suffered incarceration of over 90 days.
The bench also said that court can direct an elected leader to step down or not function as the Chief Minister or as a Minister, and leave it to Kejriwal to take a call.
"We are conscious that Arvind Kejriwal is an elected leader and the Chief Minister of Delhi, a post holding importance and influence. We have also referred to the allegations. While we do not give any direction, since we are doubtful whether the court can direct an elected leader to step down or not function as the Chief Minister or as a Minister, we leave it to Arvind Kejriwal to take a call. Larger Bench, if deemed appropriate, can frame question(s) and decide the conditions that can be imposed by the court in such cases," it added.
The apex court's judgement came on Kejriwal's appeal against a Delhi High Court judgement which dismissed his plea against arrest by the ED and his subsequent remand in the excise policy case.
Kejriwal, while filing an appeal in the apex court had contended that his arrest after announcement of the General Elections is "motivated by extraneous considerations".
The High Court had said that Kejriwal's absence from nine ED summons over six months undermined any claims of special privilege as Chief Minister, suggesting his arrest was an inevitable consequence of his non-cooperation.
Kejriwal was arrested by ED on March 21 in connection with a money laundering probe relating to alleged irregularities in the now-cancelled Delhi excise policy 2021-22.