The Delhi high court on Thursday refused to immediately stay the trial court proceedings pending against former Delhi chief minister Arvind Kejriwal in the excise policy case being probed by the Enforcement Directorate (ED).
Even as a bench of justice Manoj Kumar Ohri issued notice in the Aam Aadmi Party (AAP) chief’s petition seeking to quash a city court’s order taking cognizance of the charge sheet naming him and the AAP as accused, it refused to halt the proceedings after ED claimed that it had the sanction to prosecute Kejriwal
“I’ll issue notice. Solicitor general Tushar Mehta submits that response in the form of affidavit will be filed,” justice Ohri said, while fixing December 20 as the next date of hearing.
The AAP chief had approached the high court seeking to quash a city court’s July 9 order taking cognizance of the 200-page charge sheet filed by the ED and issuing production warrants against him, saying that there was sufficient material on record to proceed against the accused persons.
In his petition before the high court, the AAP chief had also sought for quashing all the proceedings emanating from the case, claiming that the money laundering offence had been committed while he was a public servant and he was entitled to the protection stipulated section 197(1) Code of Criminal Procedure (CrPC), whose applicability was reinforced by the Supreme Court in Bibhu Prasad Acharya’s ruling.
Section 197(1) of CrPC mandates that no prosecution against a public servant can proceed without obtaining prior sanction from the competent authority. The provision corresponds to Section 218 of the Bhartiya Nagrik Suraksha Sanhita, 2023, which replaced CrPC with effect from July 1. In its ruling delivered on November 6, the Supreme Court had ruled that prior sanction is required to prosecute public servants for money laundering. Banking on the same ruling, senior Congress leader and former Union minister P Chidambaram on Wednesday succeeded in getting the trial proceedings against him in the Aircel-Maxis case stayed. It was justice Ohri’s bench that stayed the proceedings against Chidambaram, while citing the same ruling. The judge had said that the challenge to the legality of order taking cognizance and continuation of proceedings for want of sanction in light of allegations levelled in prosecution complaint(s) and the import of the ruling, would require further consideration.
Kejriwal’s plea said that ED had filed the charge sheet without taking prior sanction from the competent authority and the city court had taken cognizance without fulfilling the prerequisite and so his prosecution was bad in the eyes of law. “Moreover, the impugned order was passed by the Ld Special judge without dealing with any of the allegations as mentioned in the charge sheet or recording satisfaction with respect to the allegations mentioned therein,” the plea claimed.
During the hearing on Thursday, ED represented by solicitor general Tushar Mehta, at the outset, submitted that the probe agency had sanction to initiate prosecution against the AAP chief and sought time to place the same on record.
However, Kejriwal, represented by senior advocates N Hariharan and Rebecca John, contended that the probe agency had filed the charge sheet without obtaining sanction and the only document which they had placed on record was the panchnama. Hariharan urged the court to stay the proceedings, contending that ED had filed the charge sheet by merely re-evaluating material already collected, since its sixth and seventh supplementary charge sheets were “verbatim same.”
While objecting to the stay, and calling Hariharan’s argument “factually incorrect”, the law officer submitted that ED had filed the charge sheet only after conducting further investigation.
Considering the contentions, the court granted ED time to respond to Kejriwal’s petition and fixed December 20 as the next date of hearing. It also refused to consider Kejriwal’s request of exempting his personal appearance before the trial court on the next date of hearing — December 3 — saying that the AAP chief always had the liberty to approach the city court for the same.
The AAP chief was arrested by ED on March 21 and by the Central Bureau of Investigation (CBI) on June 26. On July 12, the Supreme Court had granted interim bail to Kejriwal in the ED case, acknowledging that he has spent over 90 days in incarceration and in the CBI case on September 12, reiterating bail is the rule, and jail an exception. The case against Kejriwal had stemmed from allegations of irregularities in Delhi’s now-scrapped excise policy of 2021-22, which CBI began probing following a recommendation by Delhi’s lieutenant governor (LG) in July 2022.
