No Relief for Kejriwal: The Remedy That the Courts Could Have Given Him

An interim relief order has three tests - prima facie case, the balance of convenience, and irreparable injury.

The Court observed that “since there may be some additional material in the possession of the investigating agency, collected during the custodial interrogation of the petitioner herein, which they may wish to place before this Court, which may be crucial to decide the present case. Such material may also be crucial for the petitioner himself.” 

(Photo: Kamran Akhter/The Quint)

The Rouse Avenue Court provided no relief to Delhi Chief Minister Arvind Kejriwal on 1 April, who was sent to judicial custody for 15 more days in connection with a money laundering case linked to the government's excise policy.

And in a shocking ruling, the Delhi High Court on 27 March refused to grant any relief to him even after he expressly sought relief with respect to release from the custody of the Enforcement Directorate (main application) along with interim relief (immediate release till the disposal of the main application).

The High Court, after taking the view that the counsel of the State was not served with the copy of the petition, granted the ED time till April 2 to file its response to the said petition and application.

The counsel for Kejriwal, Senior Advocate Dr Singhvi, raised serious concerns regarding the justification and intention behind Kejriwal's arrest, particularly considering the proximity of the arrest to the upcoming elections.

Dr Singhvi contended that the arrest in question, and consequently the court's decision, could directly impact the democratic proceedings of the forthcoming national elections. 

Let's refrain from delving into the specifics of Kejriwal's case and instead consider whether the aforementioned ruling truly served justice or not, in view of the fact that the dispute revolves around the sitting chief minister of the capital. In our opinion, the ruling fails to uphold the fundamental principles of criminal jurisprudence aimed at safeguarding an individual's freedom and liberty. 

Apart from technical issues, the relief was mainly denied as the Court believed that the ED should also be given the opportunity of hearing i.e., by giving them time to file the reply as the counsel of Kejriwal had raised issues of legality and validity regarding his arrest and remand. 

The Court opined that these issues cannot be summarily heard and decided. The Court observed that “since there may be some additional material in the possession of the investigating agency, collected during the custodial interrogation of the petitioner herein, which they may wish to place before this Court, which may be crucial to decide the present case. Such material may also be crucial for the petitioner himself.” 

Interim Relief Lies in Favour of Kejriwal 

The pertinent question that arises here is whether the Court was required to listen to the other side in detail to grant interim relief to Kejriwal. There is no doubt that to decide finally on the legality of the remand orders, the Court is duty-bound to listen to both sides in detail.

However, the Court failed to consider the fundamental difference between ‘interim relief’ and ‘main relief’. The interim relief is primarily concerned with the ‘liberty of the accused’ subject to the final outcome of the petition and the main relief is primarily concerned with the ‘investigation’ to be conducted by the concerned authority.

And that is why, the merits are concerned only during the final arguments. Therefore, the interim relief order required inspection of only three tests - prima facie case, the balance of convenience, and irreparable injury (the factors stated by the State itself before the Supreme Court in the case of High Court Bar Association, Allahabad v. State of U.P. and Others, Criminal Appeal No. 3589 of 2023).

It seems that the case of Kejriwal passes these three tests. Since innocent until proven guilty is always presumed in a criminal dispute, the prima facie case seems to be in favour of Kejriwal (also considering the other suspicious facts such as no allegation has been levelled against Kejriwal initially by the approver and other arrested persons, the transactions between the ruling party and the approver and the no objection against bail sought by the approver). Considering the fact that the period spent in incarceration cannot be reversed, the factors - balance of convenience and irreparable injury lie in favour of Kejriwal.

However, it seems from the order that the Court wished to dive into the merits alone. The Court refused to listen for the interim relief only for the reason that the petition was not provided to the other side well in time, i.e., only one day before.  The Court failed to take the view that if there had been no holidays for Holi and the petition had been filed with no defects, the State would have, in that scenario, only one day to face the arguments on the admission of the petition and probably, for the interim release.  

Ex-parte Ad-interim Relief Has Been Made Impossible 

In any event, even if the petition had been provided just one day before, the Court could have, if inclined, considered granting ex-parte ad-interim relief, given the urgent circumstances surrounding the petition, which pertained to the arrest of the CM under dubious circumstances. Although the petition did not explicitly request ex-parte ad-interim relief, the counsel attempted to vaguely advocate for it.

Nevertheless, the Court itself was not restricted from considering such a plea, given that the petition was filed under Article 226 of the Constitution along with Section 482 of the CrPC. The Court could have readily granted ex-parte ad-interim relief for a limited duration (until the main case was disposed of). The Court diverted in a different direction by giving a flawed reason that the additional information which might have been collected by the investigating agency while the petitioner was in custody, could prove vital in deciding the merits of the case.

Further, the Court believed that any order passed in the application for interim release of the petitioner, without calling for the reply of the respondent, would rather amount to deciding the main petition itself.

More importantly, the reason of the Court for not considering the oral but vaguely requested ex-parte ad-interim relief, only on the ground that the other party may bring some material before the Court against the accused, would render it impossible for anyone to seek interim relief in cases where the relief becomes ineffective within a short period, such as remand orders, cases where the petition is filed only on the day when the accused is to be hanged in a death sentence etc.

An ex-parte ad-interim application for interim protection was filed by an accused in the case Rajesh Seth v. State of Chhattisgarh, Special Leave to Appeal (Crl.) No(s). 1247/2022, wherein the High Court failed to address such an application. However, when the application was brought before the Honorable Supreme Court, the Supreme Court criticised the concerned High Court and granted interim protection to the Petitioner in the absence of the Respondent. 

In conclusion, we have to understand in criminal jurisprudence, courts should lean towards releasing individuals based on the fundamental principle of "innocent until proven guilty." Detaining someone before proving their guilt clearly violates Article 21 of the Constitution, and any delay in releasing the person cannot be compensated. Mere technicalities should not overshadow the matter of someone's liberty, especially when it concerns the Chief Minister of the nation's capital, who represents millions of people. 

(Ravi Singh Chhikara is a practicing advocate at the Delhi High Court. Vaishali Chauhan is a practising advocate at Hon’ble Supreme Court and Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)