LexARVIND KEJRIWAL versus DIRECTORATE OF ENFORCEMENT
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[2024] 7 S.C.R. 2363 : 2024 INSC 512 Arvind Kejriwal v. Directorate of Enforcement (Criminal Appeal No. 2493 of 2024) 12 July 2024 [Sanjiv Khanna* and Dipankar Datta, JJ.] Issue for Consideration Validity of arrest of the appellant under Section 19 of the Prevention of Money Laundering Act, 2002; scope and ambit of the Courts to examine the legality of the arrest under Section 19; whether the Court while examining the validity of arrest in terms of Section 19(1) of the PML Act will also go into and examine the necessity and need to arrest; whether interim bail ought to be granted to the appellant. Headnotes† Prevention of Money Laundering Act, 2002 – s.19(1) – “need and necessity to arrest”, if a separate ground to be considered beyond the conditions stipulated in s.19(1) – Appellant challenged his arrest by ED in the Excise Policy case wherein he was described as the key conspirator in formulation of the said policy framed for the sale of liquor in NCT of Delhi, which allegedly favoured certain persons in exchange for kickbacks from liquor businessmen and resulted in huge losses to the government exchequer – It was further inter alia alleged that the appellant was involved in the use of proceeds of crime generated in the Goa election campaign of Aam Aadmi Party – Arrest was challenged as illegal contending that he was arrested in violation of s.19(1), the “reasons to believe” did not mention and record reasons for “necessity to arrest” and there was no necessity to arrest the appellant on 21.03.2024 as the RC (by CBI)/ECIR (by ED) were registered in August 2022 and also most of the material relied upon in the “reasons to believe” were prior to July 2023 – Whether mere satisfaction of the formal parameters to arrest sufficient or is the satisfaction of necessity and need to arrest, beyond mere formal parameters required: * Author 2364 [2024] 7 S.C.R. Digital Supreme Court Reports Held: Such review might be conflated with stipulations in s.41 of the Code of Criminal Procedure, 1973 which lays down certain conditions for the police to arrest without warrant – However, s.19(1) does not permit arrest only to conduct investigation – Conditions of s.19(1) have to be satisfied – Clauses (a), (c), (d) and (e) to s.41(1)(ii) of the CrPC, apart from other considerations, may be relevant – Vijay Madanlal Choudhary, a three Judge Bench decision states that the safeguards provided as pre-conditions in s.19(1) of the PML Act have to be fulfilled by the designated officer before affecting arrest – The safeguards are of a higher standard and ensure that the designated officer does not act arbitrarily, and is made accountable for their judgment about the ‘necessity to arrest’ the person alleged to be involved in the offence of money laundering, at the stage before the complaint is filed – “necessity to arrest” is not mentioned in s.19(1) however, it has been judicially recognised in Arnesh Kumar laying down that “necessity to arrest” must be considered by an officer before arresting a person – Power to arrest must be exercised cautiously to prevent severe repercussions on the life and liberty of individuals and such power must be restricted to necessary instances and must not be exercised routinely – Right to life and liberty is sacrosanct, and the appellant has suffered incarceration of over 90 days and as the questions of law inter alia as regards whether the “need and necessity to arrest” is a separate ground to challenge the arrest u/s.19(1) of the PML Act is referred to larger Bench, the appellant is granted interim bail in the ECIR recorded by respondent-ED, on the conditions as imposed, which may be extended/recalled by the larger Bench. [Paras 18, 67, 74, 84, 85] Prevention of Money Laundering Act, 2002 – s.19(1) – Validity of arrest – “Need and necessity to arrest” – Parameters to be considered – Questions of law referred to larger Bench: Held: Questions as regards whether the“need and necessity to arrest” is a separate ground to be considered beyond the conditions stipulated in s.19(1); whether it 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; and if questions (a) and (b) are affirmatively answered, what are the parameters and facts to be taken into consideration while examining the question of “need and necessity to ar
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