Kejriwal can't defend unrecorded statement if not present at summon, says Supreme Court

 

The Supreme Court on Monday raised concerns about Delhi Chief Minister Arvind Kejriwal not appearing before the ED despite repeated summonses for recording statements. The court questioned whether Kejriwal could challenge his arrest in a money laundering case related to the excise policy scam due to his version not being recorded.

Kejriwal is currently held in Tihar jail under judicial custody following his arrest on March 21 in the case. Justices Sanjiv Khanna and Dipankar Datta, questioning senior advocate Abhishek Singhvi representing Kejriwal, asked why the Aam Aadmi Party (AAP) leader did not file a bail application before the trial court.

"Are you not contradicting yourself by saying that his statements under section 50 of the Prevention of Money Laundering Act (PMLA) were not recorded? You don't appear on summons for recording of statements under section 50 and then you say it was not recorded," the bench said.

 

The court inquired about the actions the investigating officer should take if Kejriwal fails to appear in response to summons.

"If you don't go for recording of section 50 statements, then you can't take the defence that his statement was not recorded," Justice Khanna said. Singhvi said, "Thanks for saying that. Non recording of section 50 statements is not a defence to arrest me for reasons of believing there is guilt. "I am saying other materials also do not establish my guilt. The ED came to my house to arrest me. Then why can't ED record my statement under section 50 at my house?"

Section 50 of the PMLA pertains to the authority of ED officials to issue summons and request the production of documents, evidence, and other materials. Singhvi noted that on April 16, 2023, Kejriwal appeared before the CBI regarding the case and responded to all inquiries.

"Today, you cannot say that we will arrest you because you did not appear on summons. Can you say that since you did not cooperate, you will be arrested? "Non-cooperation cannot be a ground for criminality or grounds of arrest. This court has last year held that non-cooperation cannot be a ground of arrest under the PMLA," Singhvi said.

 

The senior lawyer stated that the chief minister is not immune from prosecution and questioned if he has fewer rights than an ordinary citizen. Singhvi also argued that the denial of relief by the Delhi High Court for no coercive action should not be grounds for the ED's arrest. Initially, the bench asked Singhvi why Kejriwal did not file a bail application in the case.

 

Singhvi stated that he has contested the arrest, and if the arrest is deemed unlawful, everything else becomes irrelevant.

"My case is that the arrest is illegal. The remit of Section 19 of PMLA is much wider as it empowers ED to arrest a person based on material in their possession which provides a reasonable basis to suspect that an individual has committed an offence punishable under the law. "But where is the material except for five statements? There is nothing," he said.

 

Singhvi, who began by disputing Kejriwal's arrest, argued that there was no urgent need to arrest the chief minister while the Model Code of Conduct was in effect.

"Your (ED's) power to arrest is not an obligation to arrest. There must be reason to believe (that arrest is required). This arrest was when the Model Code of Conduct was in place. "I am not a hardened criminal or terrorist who has done something a week back. There has to be some new material or a link which connects me directly to something," Singhvi said.

The bench then inquired whether Kejriwal was mentioned in the Enforcement Case Information Report (ECIR).

"No, Not a single document connects me to the allegations. From December 2022 to July 2023, there was not a single statement where I was named. "In July last year, a person in their custody made a statement, which was his tenth and named me. I was arrested on March 21," he said.

 

The bench noted that in a typical case, when a person is arrested, they typically file a bail application. The court then forms an initial opinion based on the case diary regarding whether to grant relief, as the charge sheet is usually filed after 60 or 90 days.

 

Singhvi argued that this case should not be regarded as a typical criminal case because the challenge is to the arrest itself. He emphasized that the ED's reasons to believe guilt must align with the reasons for the arrest.

The Supreme Court issued a notice to the ED on April 15, requesting its response to Kejriwal's plea. On April 9, the high court upheld Kejriwal's arrest in the money laundering case, stating that there was no illegality involved. The court noted that the ED had few options left after Kejriwal repeatedly ignored summonses and declined to participate in the investigation.