Arguing for bail in the CBI case against him in connection with Delhi's now-scrapped liquor policy, Chief Minister Arvind Kejriwal today told the court that the central agency did an "insurance arrest" after they realised that he could get bail in the Enforcement Directorate case.
The top court has earlier granted interim bail to the Aam Aadmi Party (AAP) leader in the Enforcement Directorate (ED) case against him, but he remains in jail in the CBI case. This means that if the Supreme Court gives him the relief, the Delhi Chief Minister will walk out of prison after over five months.
The CBI arrested Mr Kejriwal on June 26. The Delhi High Court on August 5 upheld his arrest as legal and said the CBI was able to establish that the AAP leader could influence witnesses.
Arguing for Mr Kejriwal before a bench of Justice Surya Kant and Justice Ujjal Bhuyan, Senior Advocate Abhishek Singhvi said this is an unprecedented matter. The Delhi Chief Minister, he said, has got relief twice under the stringent Prevention of Money Laundering Act. The CBI, he said, had done as "insurance arrest".
The CBI, he said, had arrested Mr Kejriwal after two years. "Three court orders are in my favour. This is an insurance arrest, so that he can be kept in jail," Mr Singhvi said.
Mr Singhvi said the Supreme Court needs to address three questions — is there a flight risk? will he tamper with evidence? will he influence witnesses?
The only basis for CBI's arrest, he said, was that Mr Kejriwal was not cooperating. This issue, Mr Singhvi said, had been addressed in the past judgments that say an accused cannot be expected to incriminate himself.
"Arvind Kejriwal is a constitutional functionary and cannot be a flight risk. There can't be tampering, there are lakhs of documents, five chargesheets have been filed. There is also no risk of influencing witnesses. The triple test for bail is in my favour," he said.
"This person was found fit for release twice, once by Supreme Court too even under higher threshold of Section 45 (of PMLA). I am the most captive interrogatee you can find, ever. Just for insurance you arrested! No substantial material was demonstrated before special judge to justify my arrest, grounds were vague," Mr Singhvi said.
At one point, Justice Kant said while the bench will hear both sides, "we are wondering how long we should hear in a bail matter, do ordinary mortals get this much time?" Additional Solicitor General SV Raju, appearing for the CBI, said, "I want as much time as him (Singhvi), at least." Mr Singhvi responded, "I am glad my lordships pointed that out. I will take till 12 so we can finish by lunch."
The CBI's counsel asked if Mr Singhvi is arguing on bail or arrest and that he cannot mix the two.
"Triple test satisfied fully. Every other possible co-accused has been released. I am taking about same, Vijay Nair, Manish Sisodia, Sanjay Singh and more," he said.
Mr Singhvi said multiple chargesheets have been filed. "Prolonged incarceration cannot be there, is the triple test satisfied? yes it is… all the judgments held on these points… in the Manish Sisodia judgment, the court held that in this particular case of excise policy, trial is impossible to finish."
Mr Singhvi also referred to the "snakes and ladders" expression used by the Supreme Court while granting bail to Mr Kejriwal's party colleague Sisodia to refer to how the petitioner was being made to go to separate courts in a cycle. "The Supreme Court has used a very felicitous phrase, snakes and ladders."
Opposing Mr Kejriwal's petition, the Additional Solicitor General said the Delhi High Court had asked Mr Kejriwal to go to the lower court for bail, but he still filed the petition before the high court.
"He approached the High court without going to the sessions court. This is my preliminary objection. On merits, trial court could have seen it first. The high court was made to see merits and it can only be in exceptional cases. In ordinary cases, sessions court has to be approached first.
"They came here and then they approached high court and then again they came to Supreme Court and then this court decided the matter. This is the snake and ladder they were talking about," he said, adding that Mr Kejriwal never pointed out any exceptional circumstances.
"Only because the person is influential, it can keep playing snake and ladder," he said.