On May 30, a bench of special judge Kaveri Baweja at Delhi's Rouse Avenue Court Complex issued a notice to the Enforcement Directorate (ED) during a hearing on Delhi chief minister Arvind Kejriwal’s two pleas, one for regular bail and the other for extension of interim bail. The court is now scheduled to hear the matter on June 1 at 2 PM.
Legal experts opined that moving the trial court was the best legal option available to Kejriwal to extend his stint outside judicial custody. The Delhi chief minister had been arrested by the ED on charges of being part of a money-laundering scheme involving the now-scrapped liquor policy in the state.
Kejriwal had been granted interim bail till June 1 by the Supreme Court, which on May 29 had refused to hear a plea seeking an extension of his bail.
“The pendency of Kejriwal’s plea challenging his arrest does not fetter his right to apply for a regular bail, as recorded by the Supreme Court in its order from May 17. As a natural corollary, the best plausible step for Arvind Kejriwal is to avail statutory remedies by applying for a regular bail expeditiously,” said Suvigya Awasthy, partner, PSL Advocates & Solicitors.
On May 29, the registry of the apex court refused to entertain Kejriwal’s request for an urgent hearing of his application seeking extension of interim bail. According to the registry, the court on May 17 permitted Kejriwal to file a bail plea as per law ahdn. hence, an urgent plea was not maintainable before a vacation bench.
Why is the Rouse Avenue court Kejriwal’s only option now?
On May 10, a Supreme Court bench of justices Sanjiv Khanna and Dipankar Datta granted interim bail to Kejriwal till June 1 to campaign for the ongoing Lok Sabha election. However, the bench refused Kejriwal’s request to grant it till June 4 and directed him to surrender on June 2. On May 17, the last working day of the Supreme Court before its summer break, the bench reserved judgment on Kejriwal’s plea challenging the validity of his arrest, adding that the CM was granted liberty to move the lower court for bail if need be.
However, on May 27, Kejriwal filed a plea for extension of interim bail by a week on the ground that he needed to undergo some medical tests. On May 28, Kejriwal’s lawyer, senior advocate Abhishek Manu Singhvi, sought an urgent hearing of the plea before the vacation bench of the Supreme Court. The bench, however, held that since the apex court had already reserved Kejriwal’s case for judgment, Chief Justice of India DY Chandrachud must take a call on this.
Subsequently, the request for urgent hearing came to be rejected by the registry of the apex court after it noted that Kejriwal could move the trial court should he wish to obtain bail. Besides, since the court had already reserved his plea for judgment, the registry could not have listed it before another bench during the court vacations.
“Normally the same bench would be required to hear the application for extension but since the Supreme Court is on vacation till July, the CJI being the master of the roster will need to assign a specific bench to hear this plea if he deems it appropriate to do so. Relying on the interim order, he (Kejriwal) can move a regular bail application before the trial court,” said Shyam Gopal, partner, Traya Law Partners LLP.
According to Alay Rizvi, partner at law firm Accord Juris, “Various courts have held that the right to bail is a fundamental right under Article 21 of the Constitution. Under these circumstances, though the court has reserved for judgment, it does not stop Kejriwal from appearing before the trial court and seeking remedy.”
The Criminal Procedure Code (CrPC), 1973, mandates that a person who is in custody will have to first move the trial court to obtain bail. If his bail plea is rejected by the trial court, he could approach the high court concerned and then the Supreme Court.
“Considering the rejection by the registry of Supreme court to permit the urgent hearing of application seeking interim bail, the only remedy left to Mr Kejriwal is to file regular bail application under section 439 of the CrPC before the trial court in Rouse Avenue district court,” said Tushar Agarwal, a Supreme Court advocate.
Agarwal noted that since Kejriwal is to surrender in two days' time, the plea has been filed at the last minute.
However, Utsav Trivedi, partner at boutique firm TAS LAW, expressed his apprehension about the outcome of the bail plea in the Rouse Avenue court. He said, “He (Kejriwal) most certainly can go back to lower courts for bail, but with the main matter pending with the Supreme Court, no lower court / high court is going to entertain his bail petition.”
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