Brief Facts
- Arvind Kejriwal filed this appeal challenging the Delhi High Court’s judgment dated 09.04.2024, which dismissed his writ petition questioning the legality of his arrest by the Enforcement Directorate (ED) on 21.03.2024 under Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA). The appeal does not concern bail but the validity of the arrest itself.
- A CBI FIR registered on 17.08.2022 alleging conspiracy and corruption in the Delhi Excise Policy, with charge-sheets filed against various accused. However, Arvind Kejriwal was not named in any of those CBI charge-sheets.
- Thereafter, ED registered an ECIR based on the CBI FIR as the predicate offence and filed multiple prosecution complaints. In the seventh supplementary complaint dated 17.05.2024, Arvind Kejriwal was named as an accused. He was served multiple summonses, which he claims were illegal, before being arrested on 21.03.2024 and remanded to ED custody on 22.03.2024.
Issues
- Whether the power to arrest during investigation is subject to judicial review?
- Whether the arrestee is entitled to be supplied with a copy of the “reasons to believe”?
- Whether the officer acting under Section 19(1) of the PML Act can ignore or not consider the material which exonerates the arrestee?
- Whether the ground for “need and necessity to arrest”, though not mentioned in Section 19(1) of the PML Act, be considered by an officer before arresting a person?
Held
- The Supreme Court, while referring the issue regarding the ‘need and necessity to arrest’ under Section 19(1) of the PMLA to a larger Bench in view of the legal complexity, granted interim bail to the Petitioner, noting that he had undergone more than 90 days of incarceration and emphasizing that the right to life and personal liberty is sacrosanct. However, various bail conditions were imposed on the Petitioner and the Petitioner was restrained from visiting his office and Delhi Secretariate, inter alia. The findings of the Court are as under:
Power of judicial review is available with the court
- The Court while considering the judgments in the case of Pankaj Bansal Union of India and others, 2023 SCC Online SC 1244, V. Senthil Balaji v. State and others, (2024) 3 SCC 51, Prabir Purkayastha v. State (NCT of Delhi), 2024 SCC OnLine SC 934, Vijay Madanlal Choudhary and others v. Union of India and others, (2022) SCC Online SC 929, hold that the power of judicial review shall prevail, and the court/magistrate is required to examine that the exercise of the power to arrest meets the statutory conditions. The legislature, while imposing strict conditions as preconditions to arrest, was aware that the arrest may be before or prior to initiation of the criminal proceedings/prosecution complaint. The legislature, neither explicitly nor impliedly, excludes the court surveillance and examination of the preconditions of Section 19(1) of the PML Act being satisfied in a particular case. This flows from the mandate of Section 19(3) which requires that the arrestee must be produced within 24 hours and taken to the Special Court, or court of judicial/metropolitan magistrate having jurisdiction. The exercise of the power to arrest is not exempt from the scrutiny of courts. The power of judicial review remains both before and after the filing of criminal proceedings/prosecution complaint. It cannot be said that the courts would exceed their power, when they examine the validity of arrest under Section 19(1) of the PML Act, once the accused is produced in court in terms of Section 19(3) of the PML Act.
Reasons to believe must be communicated to the accused
- It is difficult to accept that the “reasons to believe”, as recorded in writing, are not to be furnished. As observed above, the requirements in Section 19(1) are the jurisdictional conditions to be satisfied for arrest, the validity of which can be challenged by the accused and examined by the court. Consequently, it would be incongruous, if not wrong, to hold that the accused can be denied and not furnished a copy of the “reasons to believe”. In reality, this would effectively prevent the accused from challenging their arrest, questioning the “reasons to believe”. We are concerned with violation of personal liberty, and the exercise of the power to arrest in accordance with law. Scrutiny of the action to arrest, whether in accordance with law, is amenable to judicial review. It follows that the “reasons to believe” should be furnished to the arrestee to enable him to exercise his right to challenge the validity of arrest.
- Where the non-disclosure of the “reasons to believe” with redaction is justified and claimed, the court must be informed. The file, including the documents, must be produced before the court. Thereupon, the court should examine the request and if they find justification, a portion of the “reasons to believe” and the document may be withheld. This requires consideration and decision by the court. DoE is not the sole judge.
Material which exonerates the accused must be considered while framing the reasons to believe.
- The legality of the “reasons to believe” have to be examined based on what is mentioned and recorded therein and the material on record. However, the officer acting under Section 19(1) of the PML Act cannot ignore or not consider the material which exonerates the arrestee. Any such non-consideration would lead to difficult and unacceptable results. First, it would negate the legislative intent which imposes stringent conditions. As a general rule of interpretation, penal provisions must be interpreted strictly.49 Secondly, any undue indulgence and latitude to the DoE will be deleterious to the constitutional values of rule of law and life and liberty of persons. An officer cannot be allowed to selectively pick and choose material implicating the person to be arrested. They have to equally apply their mind to other material which absolves and exculpates the arrestee. The power to arrest under Section 19(1) of the PML Act cannot be exercised as per the whims and fancies of the officer.
The veracity of the statements recorded by the Investigation Agency cannot be determined while exercising judicial review challenging the arrest.
- The Supreme Court held that whether the statements relied upon by the DoE have been extracted under coercion, a fact that is contested and has to be examined and decided. This argument does not persuade us, given the limited power of judicial review, to set aside and quash the “reasons to believe”.
- Arvind Kejriwal can raise these arguments at the time when his application for bail is taken up for hearing. In bail hearings, the court’s jurisdiction is wider, though the fetters in terms of Section 45 of the PML Act have to be met. Special Court would have to independently apply its mind, without being influenced by the opinion recorded in the “reasons to believe”.
Power of arrest must be exercised cautiously
- The Supreme Court while relying on the judgments in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, Mohammed Zubair v. State of NCT of Delhi, (2022) SCC OnLine SC 897, Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260, ChairmanAll India Railway Recruitment Board v. K. Shyam Kumar, (2010) 6 SCC 614, State of Uttar Pradesh v. Lal (2006) 3 SCC 276, emphasised that the power to arrest must be exercised cautiously to prevent severe repercussions on the life and liberty of individuals. Such power must be restricted to necessary instances and must not be exercised routinely or in a cavalier fashion.
- The Court referred to a larger Bench the pivotal question of:
(a) 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?
(b) 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?
(c) 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”
Relevant Para No.
- 19,20, 21, 36, 37, 38, 39, 42, 44, 55, 56, 60, 65, 67, 68, 75 and 84