The division bench of Justices Surya Kant and Ujjal Bhuyan upheld the bail granted by the special court, while pronouncing its judgement in Arvind Kejriwal v. Central Bureau of Investigation, [SLP (Crl) No. 11023/2024], had heard the matter and reserved verdict on September 5.

Both the judge’s pronounced separate judgements while affirming bail to Delhi CM unanimously. Notably, Justice Bhuyan went one step further and unjustified the CBI arrest and he also observed that the arrest was only meant to frustrate the grant of bail in the ED case against him (Kejriwal).  He added that he is in complete agreement with the conclusion and direction stated by Justice Surya Kant that the appellant should be released on bail but on the necessity and timing of the arrest, he stressed that “I have a definite point of view”.

The Supreme Court’s division bench pronounced its verdict against Kejriwal’s challenge to the Delhi High Court order of August 5, whereby his petition challenging the CBI arrest on June 26, 2024 and seeking bail were dismissed with liberty to approach the trial court for bail.

Brief background and a time-line:

In the ED case, it is alleged that Arvind Kejriwal is the main conspirator of the Delhi excise scam and is directly involved in the use of corruption money of over Rs. 100 crores. The ED’s case claims that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12% to certain private companies, although such a stipulation was not mentioned in the minutes of the meetings of the Group of Ministers (GoM). 

He became the first sitting Chief Minister to be arrested while in office. His arrest came after months of non-compliance with nine summonses from the ED, which he had labelled “illegal.”

AAP Chief & Delhi CM Arvind Kejriwal was arrested by the Enforcement Directorate (ED) on March 21, 2024, in connection with a money laundering case and his alleged indulgence in Delhi Excise Policy Scam 2021-22. 

Later, on May 10, the Supreme Court granted Kejriwal interim bail until June 1, in the money laundering case, and highlighted that Kejriwal, as Chief Minister and leader of a national party, posed no threat to society and had no criminal background.

On June 2, Kejriwal surrendered at Tihar Jail as Supreme Court Registry on May 29, refused to list Delhi CM’s plea for extension of interim bail.

On June 20, 2024, Delhi’s Judge Nyay Bindu of Rouse Avenue Court granted bail to CM Kejriwal in the money laundering case.

In a dramatic shift in CM Kejriwal’s bail, on June 21, the Delhi High Court stayed the order granting bail to Kejriwal in the money laundering case connected to the liquor policy case. The High Court stayed the operation of the bail order till the final order is passed on the stay application filed by the ED.

On June 25, the Delhi High Court finally stayed the trial court’s order granting bail to CM Kejriwal. Justice Sudhir Jain while staying the bail, observed that trial court didn’t properly appreciate ED’s case & materials. He opined that the vacation judge failed to discuss the requirement of section 45 of PMLA while passing the bail order.

On June 26, 2024, in a significant move, the AAP chief was formally arrested by the CBI while he was in custody of the ED in the excise case. The CBI was investigating this case on corruption and bribery involvement. Delhi Court on same day, remands CM Kejriwal for 3 days CBI custody.

On July 12, 2024, the Supreme Court granted Kejriwal interim bail in the ED case, questioning the validity and timing of his arrest by the ED in March, 2024. Despite the bail in the ED case on June 20, Kejriwal remained in custody under CBI’s separate charges.

On August 5, the Delhi High Court upheld the CBI’s decision to arrest Kejriwal, directing him to approach trial court to seek regular bail.

On August 12, 2024, Kejriwal challenged the Delhi High Court’s decision before the Supreme Court in which, the Supreme Court after hearing the arguments and submission made by the Kejriwal’s Counsel and CBI’s response, reserved the verdict on September 5, 2024.

And, significantly on September 13, the division bench of Supreme Court set aside the arrest made by CBI in June 26 and ordered the release of Delhi CM Arvind Kejriwal. 

Submissions made by Arvind Kejriwal

Senior Advocate Abhishek Manu Singhvi appeared for Delhi CM Kejriwal. He submits that Kejriwal was arrested illegally, in violation of the procedure enumerated in Sections 41(1) and 41A of the CrPC. He further added that High Court erred in misapplying the provision of Section 41(2) of the CrPC to justify the noncompliance’s of Section 41(1)(b)(ii) of the CrPC and consequential arrest of the Appellant. He highlighted that Section 41(2) is attracted only non-cognizable offences and arrest of the Kejriwal was made in a case of cognizable offence. Singhvi also submits that the arrest was made against the dictum of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

Singhvi also emphasized that Kejriwal has been granted both interim and regular bail in the ED matter by this Court, where the conditions are stricter and submits that the trial was not likely to be concluded in the near future, as the FIR was registered on 17.08.2022, with one chargesheet and three supplementary chargesheets having been filed, 17 accused persons arraigned, as many as 224 witnesses cited and the physical and digital records running into lakhs of pages. Further he added that the fourth supplementary charge sheet was filed on 29.07.2024.

Submissions made by CBI

For CBI, Additional Solicitor General of India, S.V. Raju appeared before the bench and contended that arrest of the Kejriwal had been conducted in due compliance with the statutory procedure as contemplated in Section 41(1) and 41A of the CrPC. He strenuously urged that the pre-requisites set out in Section 41(1)(b)(ii) had been fulfilled as the CBI deemed it imperative to conduct the custodial interrogation of the Appellant to unearth a larger conspiracy hatched amongst the accused persons and to establish the money trail of ill-gotten proceeds. He argued that the CBI had obtained permission from the Trial Court, under whose custody the Appellant was.

ASG Raju referred, Section 41A (4) of the CrPC, which outlines the procedure for situations where an accused fails to comply with a Section 41A notice. He submits that, Kejriwal is already in jail, the conditions envisaged under Section 41A (4) becomes inapplicable and therefore, the requirement of notice thereunder was not necessary. He submits that Kejriwal should be relegated to the Trial Court.

Decision of the Supreme Court 

The division bench Justices Surya Kant and Ujjal Bhuyan of Supreme Court, granted bail to Arvind Kejriwal without going into the merits of the case. The bench affirmed the grant of bail to Kejriwal in concurrent view.

The observations made by Justice Surya Kant in its separate judgement shifted more to procedural grounds and technical aspects of the arrest. He affirmed the lawfulness of CBI arrest but on the other hand Justice Bhuyan expressed its different opinion with regards to the dramatic and hasty arrest made by CBI just after Kejriwal granted bail in ED case. 

The bench also imposed bail bonds for a sum of Rs. 10,00,000/- against bail and made restriction Kejriwal from making any public comments on the merits of the CBI case. (Para 47)

Justice Bhuyan questions need and necessity of CBI arrest

Pertinently, Justice Ujjal Bhuyan in his separate judgment, has expressed displeasure with CBI and said that Kejriwal’s arrest by the agency after secured bail in the ED case was only to frustrate Kejriwal’s release from prison.

Justice Bhuyan while playing active role in pronouncing of judgement in CM Kejriwal’s CBI arrest and unjustified the CBI arrest and said that the CBI did not arrest Kejriwal for 22 months and arrested Kejriwal just after the bail granted by ED. 

Justice Bhuyan while questions the timing of CBI arrest, observed that “it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 i.e., for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.” (Para 23)

“Power to arrest is one thing but the need to arrest is altogether a different thing”

Justice Bhuyan more specifically underlined the need and necessity of power to arrest while expressing his displeasure with CBI’s impugned arrest. He stated that “Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it 16 should arrest such a person.” He further added that the existence of the power of arrest is one thing but justification for the exercise of it is quite another. (Para 27).

Justice Buyan relied upon the decision in Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 and emphasized that investigation must be fair and effective. He stressed that investigation should be conducted in a manner so as to draw a just balance between a citizen’s right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. (Para 28)

“Investigations are not used as a tool of harassment”

Notably, Justice Bhuyan pointed out the observation made in the case of Mohd. Zubair and Arnab Goswami, and reiterated that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly and proper enforcement of criminal law on the one hand and the need to ensure that the law does not become a ruse for targeted harassment on the other. He further added that “courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of the citizens. Deprivation of liberty even for a single day is one day too many.” (Para 30)

The bench placed reliance in case of Mohd. Zubair Vs. State (NCT of Delhi), (2022) SCC Online SC 897, and emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. He pointed out that “this Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.” (Para 30)

“CBI must dispel the notion of being a caged parrot” 

Justice Bhuyan underlines that the CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot, he also reminded the CBI of its duty to ensure that its investigations are fair. Justice Bhuyan lambasted the CBI, pointing that as a premier investigating agency of the country, it should not perceive as making arrests in a high-handed manner.

While questioning the manner in which CBI made arrested of CM Kejriwal he emphasized that “CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high-handed and biased manner” (Para 32)

Justice Bhuyan reprimands the CBI and observed that in functional government by the rule of law, perception matters. He added that “not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot” (Para 33)

Justice Kant stands on procedural grounds and technical aspect of the arrest

Justice Surya Kant while affirming the legality of the CBI arrest, primarily shifted towards procedural and technical aspect of the arrest and held that the arrest of Kejriwal was legal and did not suffer from any procedural irregularity. There is no merit in the submission that the CBI failed to comply with the statutory mandate of Section 41 of the Code of Criminal Procedure (CrPC) while arresting him (Kejriwal).

Justice Kant held that arrest was valid and in compliance with relevant procedural laws.

“There is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence.3 The Appellant’s arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024.” (Para 26)

Justice Kant procedural centric verdict also justified the procedure adopted by CBI during arrest of CM Kejriwal and held that Section 41A (3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, and the police officer is satisfied that the individual should be arrested and Section 41A (1), when read with Section 41A (3) CrPC, does not impose an absolute prohibition on the arrest. (Para 27 & 28 of Justice Kant’s Judgement)

Justice Kant held that Kejriwal’s arrest does not suffer from any procedural flaw and was valid and said “in view of these considerations, we do not find any merit in the Appellant’s contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit”. (Para 29) 

The bench unanimously grants bail to CM Kejriwal

Notably, despite the separate order passed by Justice Ujjal Bhuyan, the bench unanimously affirmed the bail to Arvind Kejriwal, while setting aside the impugned judgment of the High Court dated 05.08.2024, subject to the terms and conditions in para 47 of the order, authored by Justice Surya Kant.

However, Justice Ujjal Bhuyan has also doubted the correctness of the bail condition imposed by a bench headed by Justice Sanjiv Khanna in the ED case that Kejriwal will not sign papers and enter CM office. The bench also dismissed the criminal appeal challenging the legality of arrest.

The judgement of can be found here:

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Mewa Ram Jain is a candidate in the upcoming state legislative assembly elections, the polling for which is to be held on November 25. The ED issued the summons to him on November 20, asking him to appear before it in person on November 22, that is three days before the polls.

In his defence, Jain, in his petition. argued that he was elbow-deep in election campaigning and it would be onerous for him to leave campaigning midway merely to attend the call from the ED.

Jain also contended that it was not discernible from the notice for what purpose his presence was required. It was not even clear whether he had been summoned as a witness or as an accused.

Holding the timing of the summons both inappropriate and questionable, Justice Ali noted that at the least, the petitioner had a right to know the nature of the accusation against him if he was an accused

Further, Justice Ali continued that if Jain had been summoned to depose a statement before the authorities, then he had a right to know for what purposes and in what matter his presence would be required so as to enable him to collect the requisite material in order to leave Barmer only to satisfy the summons of the respondent.

Justice Ali thereafter proceeded to quash the summons while granting liberty to the ED to issue a fresh notice with better particulars for any date after December 3 as by that time the counting for the election would have been completed.

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In a two page letter made public today, Kejriwal states that “in the said summons it is not clear as to what capacity I am being summoned.” Besides, he says, the said summons fails to provide details in relation to the File bearing F. No. EClR/ HIUJJ/ 14/2022” which is the criminal complaint in the liquor policy case.

He also states that the “said summons does not specify whether l run being summoned as an individual or in my official capacity as Chief Minister of Delhi or as National Convenor of AAP and appears to be in the nature of a fishing and roving inquiry.” Two senior members of his party, one the Delhi Deputy CM, Manish Sisodia and also, Rajya Sabha MP, Sanjay Singh have already been arrested in the same case. Sisodia’s bail was turned down by the Supreme Court this week.

In the letter, Kejriwal seeks to explain that the “summons appear to be motivated and issued for extraneous considerations. As soon as the summons were issued, on the  afternoon of October 30, 2023, leaders of the Bharatiya Janata Party (BJP) started making statements that he would soon be summoned and arrested. By the evening of October 30, Kejriwal had received the summons.

Kejriwal finally explains (or states) in the letter that as “incumbent Chief Minister of the Government of NCT or Delhi and National Convenor or the Aam Aadmi Party, i.e. the ruling party in the state of National Capital territory (NCT and Punjab.” The fact that there are five states in the Country, i.e. Mizoram, Madhya Pradesh, Chhattisgarb, Rajasthan and Telangana are heading for elections and he is the chief campaigner for the Aam Aadmi Party (AAP), he is required to travel and hence cannot be present before the ED.

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“The power under section 50 of the PMLA to issue summons to a person and to require the production of documents and record statements, which is akin to the powers of a civil court, is different and distinct from the power under section 19 to arrest a person,” the judgment stated in Para 27.

The case under consideration:

The aforementioned observations were made by the High Court while dismissing a plea moved by one Ashish Mittal seeking quashing of an ECIR (Enforcement Case Information Report) registered by ED in 2020 in relation to the affairs of a company named Educomp Solutions. Mittal had also sought stay of all the proceedings emanating from the said ECIR. This was after Mittal was issued summons requiring him to appear before ED on August 21. It was his case that he had a strong apprehension that he will be “illegally detained or arrested and will be made a scapegoat”. He submitted that he was not supplies with a copy of the ECIR.

Observations made by the court in the judgment:

In para 23 of the judgment, the Court has provided that Section 50 of the PMLA only confers upon ED the powers of the civil court. The judgment states: “Section 50 of the PMLA confers upon specified officers of the ED, the powers vested in a civil court trying a suit; including the power to enforce the attendance of any person for recording statements on oath, with a mandate that any person so summonsed shall be bound to attend, to answer and make statements truthfully; to compel discovery, inspection and production of documents and records; and to impound and retain records, by giving reasons in writing.”

The Court then elucidates that the power of ED to arrest someone falls under a different section of the PMLA.

The judgment states that “Though section 19 of the PMLA empowers designated officers of the ED to arrest any person, subject to satisfying the conditions mentioned in that provision, it is clear that the power to arrest does not reside in section 50 nor does it arise as a natural corollary of summons issued under section 50.” (Para 25)

The court also emphasized the different powers that flow from Section 19 and Section 50 of the PMLA.

The judgment states: “The power under section 50 of the PMLA to issue summons to a person and to require the production of documents and record statements, which is akin to the powers of a civil court, is different and distinct from the power under section 19 to arrest a person. These are two separate and distinct provisions.” (Para 27)

The court added that the court cannot restrain the ED from exercising its power to issue summons under one section on the apprehension that ED may arrest some based on the powers of the ED to do so under another section as that may lead to more cases of resistance to the summons.

“The exercise of the powers under one, cannot be restrained on the apprehension that it could lead to the exercise of powers under the other. If that is permitted, any and every person summonsed [sic] under section 50 of the PMLA, to produce documents or give a statement on oath, could resist such summons expressing mere apprehension that he may face arrest at the hands of the ED, in exercise of the powers under section 19 of the PMLA,” the court stated in the judgment in Para 27.

On the issue of quashing of the ECIR raised by the petitioner, the court noted that since the ECIR was not before the court nor was Mittal he was entitled as per law to be given a copy of the same, the court held that there was obviously no way that the grounds on which quashing was sought could be assessed and evaluated.

“Based on the provisions and precedents referred-to above; on a bare perusal of section 50 of the PMLA under which summons have been issued to the petitioner; and the fact that the petitioner is not an accused in the proceeding under the PMLA, this court is not persuaded to agree with the petitioner’s apprehension that he may be subject to coercive measures,” the court said in Para 28 of the judgment.

The court further pointed out that a writ petition using the extraordinary plenary jurisdiction under Article 226 of the Indian Constitution would always be appropriate if it were true that Mittal was without recourse with regard to his complaint.

“This court would hasten to clarify that it is not the purport of the present decision that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, is per-se barred from entertaining a petition by a person who is not a named accused in a scheduled offence, or in a prosecution compliant arising from an ECIR,” the court said. (Para 45)

Lastly, the Court reiterated in the judgment that the authority to arrest conferred to ED under section 19 of the PMLA is not unrestricted. The authorities do not have the power to arrest on their “whims and fancies”. The court then emphasized the three conditions that the ED must meet in order to legally arrest someone, which is as follows:

1. “Firstly, the Director must entertain a reasonable belief that the person arrested is guilty of an offence under the PMLA, and not under any other enactment;
2. Secondly, the reasons for such belief must be recorded in writing; and
3. Thirdly, such belief must be based on material that is in the Director’s possession.” (Para 41)

The judgment also quoted the recent verdict of the Supreme Court in the case of V. Senthil Balanji v State [W.P.(CRL) 2416/2023] the Supreme Court has expressly held that any non-compliance to the mandate of section 19(1) of the PMLA would vitiate the arrest itself. Notably, through this judgment, the Supreme Court had held that Section 19 requires the ED to inform the accused of the grounds of arrest in a written format.

The High Court, in its current judgment also stated that compliance with section 19(2) “is a solemn function which brooks no exceptions.”

The complete judgment can be read here:

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“Although the basis of a judgment can be taken away, the legislature cannot annul the specific mandamus that barred further extension…That would amount to sitting in appeal over judicial act”, Justice Gavai stated while pronouncing the operative parts of the judgment, as reported by LiveLaw. Therefore, the orders dated November 17, 2021 and November 17, 2022, issued by the Union, granting extension to SK Mishra for a period of one year each, were held to be illegal.

Notably, the Court allowed Mishra to continue in his position until July 31, 2023, despite the fact that the extension of his term was ruled to be “invalid in law”. This was done in light of the Union Government’s concerns regarding the peer review of the Financial Action Task Force (FATF) and a peaceful transfer of power.

A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol were debating two points at the current hearing: the first concerned the legitimacy of the amendments, and the second concerned the validity of the extensions granted for Mishra’s tenure.

The Court affirmed the amendments made to the Central Vigilance Commission Act and the Delhi Special Police Establishment Act, allowing the Centre to increase the terms of the heads of the ED and CBI by up to five years. The Court upheld these amendments, opining that there are appropriate protections, noting that the scope of judicial review over legislation is relatively constrained and that the appointments of these officers are determined by a high-level committee. In the public interest and with written justification, high-level officials may be allowed an extension, the Court held, as reported by LiveLaw.

The petitioners in the present case included Congress leaders Jaya Thakur, Randeep Singh Surjewala, Trinamool Congress MP Mahua Moitra, and party spokesperson Saket Gokhale. The bench had reserved its judgment in May after have said that the might revisit its 2021 ruling, which had provided that the tenure of a superannuated officer may be extended only in exceptional circumstances.

In May 2022, when the Solicitor General Tushar Mehta had told the Supreme Court that FATF’s once-in-a-decade peer review of India’s performance in curbing terror financing necessitated Mishra’s extension, Justice Gavai had asked if there was no other person in the “entire organisation competent to discharge these responsibilities.”

“Even if we accepted your argument, what will happen beyond 2023 when Mishra finally retires?” Justice Gavai had further asked, as reported by the Wire.

Background of the Case:

On November 19, 2018, SK Mishra was appointed the ED Director for a fixed period of two years. On November 13, 2020, just days before Mishra’s tenure was supposed to end, the President had modified the previous order retrospectively and changed Mishra’s tenure from two years to three years.

In September 2021, the Supreme Court bench of Justice L. Nageswara Rao upheld the extension, saying that such retroactive revisions are only allowed in the “rarest of rare cases” but that no further extension can be given to Mishra.

The 2021 judgment of the Supreme Court can be read here:

After the Supreme Court had said that no extensions could be granted to Mishra, the Union government issued a notification paving the way for a second extension for Mishra from November 17, 2021 to November 17, 2022. When Congress leader Jaya Thakur moved court against this, the government gave him a third extension, till November 18, 2023.

Meanwhile, the government promulgated an ordinance last year under which the tenure of ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

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Singh has been an active and prominent supporter of and participant in the farmers’ protests that shook the Union government in 2020-21 – leading to Prime Minister Narendra Modi finally recalling three contentious farm laws his government had introduced. She is also on the board of Aman Biradari, a trust headed by rights activist Harsh Mander. During the day long questioning, Singh was reportedly asked about her association with Aman Biradri and the case against Mander.

The Samkyukt Kisan Morcha, the umbrella body of farmers’ groups that had spearheaded the protests, has released a strong statement saying, “It may be kept in mind that Dr. Navsharan was one of the leading supporters of the historic farmers movement at the borders of Delhi and took the message of the farmers to an international audience. There is no doubt that Modi Govt. is taking revenge on her for supporting the farmers and SKM shall extend all support to her in her quest for justice.”

Joginder Singh Ugrahan of the Bharatiya Kisan Union Ekta (Ugrahan) has also said that the researcher is being targeted for raising her voice against the Modi government. He also alleged that like the Unlawful Activities (Prevention) Act, the PMLA is being used to target and harass dissenting voices.

The All India Kisan Sabha has similarly the ED’s move, “the BJP Government’s sinister attempts to harass activist and supporter of the farmers’ struggle,  Dr. Navsharan Singh”.

The All India Union of Forest Working People (AIUFWP)has also released a statement expressing solidarity, saying, “We see this act of ED a vilified and notorious act to target the intellectuals and activists to help the fascist regime to eliminate all the dissenting voices that questions the present fascist Government.”

The Indian People’s Theatre Association (IPTA) has dubbed Singh’s questioning by ED as “unfortunate” and “undemocratic”. Navsharan Singh has a PhD in political science from Carleton University in Canada. More than 20 organisations from Canada have also issued a joint statement in support of Singh, linking the ED’s action to the Modi government’s arrests and targeting of other progressive voices. “An accomplished scholar and women’s rights activist in South Asia, Dr. Singh also has a long history of grassroots work and has taken the baton of such work from her late father [eminent theatre personality Gursharan Singh]. By reaching out to the impoverished and the disenfranchised in rural Punjab and elsewhere, her support and advocacy work has earned her the love and respect of the masses, as was evident when she courageously supported the Indian farmers’ struggle against the draconian laws of the Modi government in 2020-2021. …To those of us who have known or are familiar with Dr. Navsharan Singh and her grassroots and academic work, her harassment by the regime’s investigative agencies is outrageous and unacceptable, and must be resolutely opposed,” the statement reads.

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A special PMLA court in Mumbai slammed the Enforcement Directorate (ED) following the Supreme Court’s order that allowed the body to withhold information pertaining to the grounds of arrest at the time of detaining an accused in any money laundering case.

After SC said it was not mandatory for the Enforcement Directorate (ED) officers to disclose the grounds of arrest at the time of detaining an accused in a money laundering case. The law has faced several criticisms, which include non-reporting of grounds of arrest, arrest of persons without ECIR (similar to FIR) copy, strict bail conditions, etc.

According to the Live Law tweet, the PMLA court refers to the ED as a “vengeful complainant.” The ED cannot seek an extension of custody “eccentrically and whimsically.”

The PMLA court refers to the ED as a “vengeful complainant”.

“This court strongly believes that it cannot join hands with a spiteful complainant like ED to humiliate accused persons by continuing their judicial custody, especially in defiance of contemporary law of the land,” the special Mumbai court commented on the ruling.

Special PMLA Court at Mumbai slams Enforcement Directorate in a case. Calls ED “vengeful complainant” while discharing accused in a money laundering case. Says ED cannot “eccentrically and whimsically” seek extension of custody.#EnforcementDirectorate #PMLA pic.twitter.com/nn7ueKdIrL

— Live Law (@LiveLawIndia) August 24, 2022

Courtesy: The Daily Siasat

The post ED a ‘vengeful complainant’: Mumbai PMLA court appeared first on SabrangIndia.

A team of the Enforcement Directorate will today start questioning advocate Surendra Gadling in connection with allegations of funding a banned Maoist organization. Last week a special court had granted the agency permission to question the human rights defender in connection with the matter.

Advocate Surendra Gadling who is best known for defending other human rights activists targeted by the State, was himself drawn into the Bhima Koregaon case when he was accused of being part of a wider conspiracy behind the January 2018 violence and arrested in connection with the same on June 6, 2018, along with professor Shoma Sen, Rona Wilson, Sudhir Dhawale and Mahesh Raut.

The Pune Police had filed two chargesheets in November 2018 and February 2019. After the National Investigation Agency (NIA) took over the case, it filed a chargesheet against eight accused in October 2020. Gadling and his alleged co-conspirators have been charged under various sections of the Unlawful Activities (Prevention) Act (UAPA), and also for sedition, criminal conspiracy and waging or attempting to wage a war or abetting a war against the Government of India.

In its plea filed before the special NIA court last week, the ED had claimed that the accused in the Bhima Koregaon case were members of the banned Communist Party of India (Maoist), and that Gadling was involved in raising funds in collusion with other terrorist organisations to cause disaffection towards India. According to a report in the Hindustan Times, the NIA further said that to carry out their regular activities, the accused had received funds in various bank accounts opened in the names of their family members and Gadling was the prime suspect.

But Gadling’s legal team refuted the charges and submitted, “In the entire chargesheet, the NIA has not mentioned about any unaccounted money found from Gadling or any links thereof. If the predicate offence has no mention of funding allegations, how the ED is probing the money-laundering allegations.”

Gadling is lodged at the Taloja jail on the outskirts of Mumbai and apart from being granted temporary bail to attend the last rites of his mother on the first anniversary of her death, has remained behind bars. His health has also been deteriorating in custody and he reportedly suffers from hypertension, diabetes, cardiac disorder, syncope, and lumbar and cervical spondylitis.

What is also noteworthy is that in June 2021, American digital forensics firm Arsenal unearthed evidence that 14 key files mentioned in the chargesheet against activist and lawyer Surendra Gadling were planted on his hard drive using Netwire, the very same malware that was used to plant false evidence on a laptop belonging to Rona Wilson, another accused in the case.

The files were allegedly planted on Gadling’s computer between February 29, 2016, when the computer was first infected via an email sent to Gadling and November 2, 2017. That was when the attacker lost access to Gadling’s computer because of a Windows reinstallation. The report also documents extensive surveillance of Mr. Gadling’s computer with over 30,000 files being allegedly copied from his devices to the attacker’s command and control (C2) server. These new findings take the total number of files documented as having been planted on defendants’ hard drives to 48! 

The report documents in detail the full transcript of the attacker’s work across multiple computers on July 22, 2017 when the attacker first moved a set of files from their ‘command and control’ server to Rona Wilson’s hard drive, and 15 minutes later using the same malware infrastructure moved another set of files to Gadling’s computer.

Related:

Another bullet from Arsenal pierces through NIA’s Bhima Koregaon case!
Bhima Koregaon: Surendra Gadling gets interim bail to perform mother’s death anniversary rituals
Bhima Koregaon case: Was evidence planted to implicate activists?
Primary goals were surveillance and incriminating document delivery: Arsenal Report

The post Bhima Koregaon case: ED to question Surendra Gadling about allegedly funding Maoists appeared first on SabrangIndia.

The Supreme Court’s recent judgement upholding the amendments made in 2019 to the Prevention of Money Laundering Act, 2002, has created a stir. Several Opposition parties have been saying the Enforcement Directorate, implementing authority for this legislation, targets their leaders and parties. Senior Advocate Sanjay Hegde talks to Rashme Sehgal about why the process in PMLA cases itself becomes a tool for harassment and why convictions are bound to remain insignificant in such circumstances. Edited excerpts.

Opposition parties have dubbed as ‘dangerous’ the recent Supreme Court judgment upholding amendments made in 2019 to the Prevention of Money Laundering Act, 2002. What did you think of this?

It is good that political parties have woken up to the dangers of this law, but they should have been more alert at the stage of legislating in Parliament. There was not too much discussion when it was passed in the Lok Sabha, and the question of passing it as a Money Bill to avoid the Rajya Sabha is still to be adjudicated. Parliamentarians cannot always expect courts to repair their shoddy work.

Over 250 petitions had challenged the 2019 amendments, and many people find them draconian—would you agree?

There were a number of petitions in court, including pleas from politicians, but the court does not interfere with laws simply because they are ‘draconian’. Judicial review is more concerned with the process and not the ‘product’. Legislation is normally checked for power, that is, legislative competence, and for possible violation of fundamental rights. It is apparent that the process argument has been kept for a larger bench, and the questions of fundamental rights have been answered by upholding the doctrine of executive necessity.

The Supreme Court ruling essentially means the Enforcement Directorate can arrest without providing the accused with a copy of its Enforcement Case Information Report or ECIR, which would be seen as an ‘internal document’. The concern with this aspect is that it is unconstitutional. Would you agree?

This judgment holds it to be constitutional [not to give a copy of ECIR], but I do think that on this aspect, the court itself will have to reconsider some day in the future.

Some say the PMLA provisions upheld by the court will deny bail to an accused, who faces the double burden of having to prove his innocence. Does this make bail next to impossible?

These are the provisions of the PMLA upheld by the court. The same judge, Justice AM Khanwilkar, now retired, upheld similar provisions in the Unlawful Activities (Prevention) Act (UAPA), and he was being consistent. The UAPA judgment has been watered down by other judgments, and I expect a similar process with the PMLA judgment.

Is the ED indeed empowered to seize all properties of the accused?

Yes, that is the provision of the law wherein properties can be attached. They can then be sold off if the prosecution ends in a conviction. However, very few cases end in a conviction, and the process of attachment and inquiry itself becomes the punishment.

Opposition parties have accused the government of misusing the Enforcement Directorate to pursue vendettas against political opponents. They cite several opposition politicians who, once they switched sides, found Enforcement Directorate went silent on their alleged misdeeds. What do you think?

There appears to be substance in that statement. The examples are widely known, and the Enforcement Directorate as a weapon of political compliance is a tool often resorted to. Of course it is being used against politicians. Take the case of Nawab Malik, the Nationalist Congress Party (NCP) minister presently in jail. His was a two-decades-old complaint whom Enforcement Directorate went after now. The agency swung into action against him, arrested him, and attached his property. If it fails to prove the charges against him, the property goes free. The Enforcement Directorate process is a tool for detention and harassment and is not focused on conviction.

During the last eight years, Enforcement Directorate raids have gone up 26 times, and it conducted 3,010 money-laundering searches but secured only 23 convictions. Why do you think this discrepancy exists?

The Schedule of the PMLA has been drawn so broadly that all kinds of offences come within its purview. Even an ordinary fight leading to the filing of an attempt to murder case can see the Enforcement Directorate at your doorstep. Hence, over-broad legislation will naturally see a low conviction rate.

Do not forget that the PMLA was originally designed for [tackling] drug money and arms money. But the government has put all kinds of criminality within its ambit, including even an attempt to murder. When ordinary Indian Penal Code offences are brought in, and these cannot be proved, it will bring down the entire edifice [of the PMLA] and allow it to fall.

But what could be the reason to all allow this situation to arise?

The PMLA can be traced in the United States to the prohibition era, where the Mafia earned a lot of money from bootlegging and then set up laundry services where this cash could be recycled. Essentially, illegitimate money from drugs and terrorism was legitimised. But now, any money from all kinds of crimes and belonging to criminals has been brought under its purview. Following a catch-all principle is one of the main reasons for the low conviction rate, whereas what the Enforcement Directorate needed to do was more focused investigations.

Can you explain why the Enforcement Directorate is in action, not the local police or the Central Bureau of Investigation (CBI)?

In West Bengal (where the Enforcement Directorate has raided Trinamool Congress leader Partha Chatterjee), the state government did not allow the CBI to function. The CBI cannot take over a case unless it has permission from the state government. But they were being denied permission on a blanket basis. Wherever a state government is in Opposition [hands], the CBI was being denied permission on a blanket basis which is why the Enforcement Directorate was then brought in.

Nevertheless, the Opposition accuses the government of conducting a political vendetta.

That is correct, but all these raids and arrests provide very good political optics for the ruling party. Take the example of how [Congress leaders] Sonia Gandhi and Rahul Gandhi have been summoned for questioning but not arrested. All the publicity around this serves a political purpose. The government gets the political dividends. One thing Indians understand and get enraged by is when others make money through illegal means. I believe the essence of tyranny is when harsh laws are used selectively against opponents. The converse is to turn opponents into supporters by the use of threats.

And the Opposition plans to move a review petition against the verdict that has upheld the 2019 amendment.

Yes, but it will go to a chamber of the same judges who cleared it [the amendments]. One judge has retired, but it will go to the two other judges on that bench. The ground of review will not be that the judgment was horribly wrong. It will be a review on very narrow grounds. [For example,] particular missed out material is now being shown to the judges [which] was not shown earlier for very valid reasons. Normally, all reviews get discussed without even an oral hearing. It is when subsequent judges doubt the decision by the earlier bench that it would be sent to a larger bench—but that is a different process.

Harsh laws have existed in the past too, but do you think all such laws need to be questioned?

The Supreme Court also has its limitations. The court can check if a law has been passed correctly, and if that is not the case, it becomes ineffective. The PMLA was passed as a Money Bill in the Rajya Sabha because the government did not have a majority in the Rajya Sabha. If the Supreme Court says it has not been correctly passed, the law becomes ineffective. In that case, Parliament will have to re-enact the law. And now that the Bharatiya Janata Party (BJP) has a majority in Parliament, they can get it through.

On the question of erosion of fundamental rights, I agree that it has been done without checking for impact. During the 1970s, while giving reasons for implementing the Emergency, the Supreme Court declared that if fundamental rights have been suspended, you do not have those rights. Some judges commenting on this judgment said they were more executive-minded than the executive, but when a conviction is based on a technical definition, it misses the spirit of the Constitution.

(Rashme Sehgal is an independent journalist.)

Courtesy: Newsclick

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On Sunday, the President of India promulgated two Ordinances by the Ministry of Law and Justice effectively allowing for terms of the chiefs of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) for up to five years, as opposed to the previous fixed term of two years. The extension will be granted each year as opposed to fixing the tenure at five years.

The move is being seen by many as a means for the regime to exercise greater control over the two premier investigation agencies in the country. As long as the chiefs dance to the regime’s tunes, they can keep their jobs.

The Ordinances essentially amend two key Acts that govern the functioning of these agencies:

–        Delhi Police Special Establishment Act that governs the functioning of the CBI, and

–        the Central Vigilance Act that concerns the appointment of the director of the ED.

The Ordinances may be read here: 

Both the CBI and the ED have been allegedly used by the regime to target dissenters and human rights activists, who are often allegedly dragged into criminal cases on trumped up charges. The CBI has already faced allegations of being a “caged parrot”, now even the ED has been disempowered as part of is being seen as the regime’s wider proto-fascist agenda.

The move, understandably therefore, drew sharp criticism from civil society members. Calling it “shocking and malafide, activist and advocate Prashant Bhushan said that this was “an attempt to further subvert the independence of CBI and ED.”

Sitaram Yechuri, meanwhile drew attention to the timing of the Ordinances and pointed out how these are just surreptitious methods to subvert the Parliament. He tweeted, “Parliament session begins on 29th. To avoid its scrutiny, Centre on Sunday promulgates ordinances to extend the tenure of Directors of CBI and ED. This desperate hurry smacks of something fishy.”

Many others including Derek O’Brian from the Trinamool Congress, Sanjay Jha of the Congress, also condemned the move.

Two brazen Ordinances extend ED and CBI Director terms from 2?? to 5 years ?????#Parliament Winter Session begins two weeks from now. Be rest assured, Opposition parties will do all it takes to stop India from turning into an elected autocracy

— Derek O’Brien | ডেরেক ও’ব্রায়েন (@derekobrienmp) November 15, 2021

So now ED and CBI head to have 5 year terms being hurriedly pushed through an Ordinance. This proves two things:
1) BJP is corrupting institutional integrity and independence
2) It is worried it might or will lose 2024.

Even a start-up has a better job rotation policy.

— Sanjay Jha (@JhaSanjay) November 15, 2021

ED Director Sanjay Kumar Mishra, a 1984-batch Indian Revenue Service officer of the Income Tax cadre, was appointed ED director on November 19, 2018. His term was to come to an end in 2020. But he was granted an extension amidst much controversy last year.

Interestingly, on September 8, this year the Supreme Court had dismissed a plea challenging Mishra’s term extension. But the SC bench comprising Justice L Nageswara Rao and Justice BR Gavai had also held, “We make it clear that no further extension shall be granted to the second respondent.” The second respondent in the case was SK Mishra. The complete order may be read here:

Meanwhile, the CBI has been scandal-ridden since the very public feud between Alok Kumar Verma and Rakesh Asthana in 2018 (dubbed CBI vs CBI), when they held two of the senior-most posts in the investigative agency. Asthana has now been appointed Commissioner of Delhi Police. Interestingly, Asthana is also a 1984-batch IPS officer, and was due to retire on July 31, 2021. However, his service tenure has now been extended for one more year, or till further orders.

Related:

Assam: CBI arrests Opposition leader’s brother
Give autonomy to CBI: Madras HC to GoI
Unshackle the CBI from political control: Teesta Setalvad
With Asthana as Interim CBI Chief, CBI Resembles the Gujarat Bureau of Investigation
CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome?

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