Explainer: The ‘sanction’ effect on Arvind Kejriwal, Manish Sisodia

New Delhi, Jan 15 In fresh trouble to the ruling Aam Aadmi Party ahead of the Delhi Assembly polls, the Union Home Ministry has granted sanction to the Enforcement Directorate (ED) to prosecute party convenor and former Chief Minister Arvind Kejriwal as well as senior party leader and former Deputy CM Manish Sisodia in a money laundering case tied to the alleged liquor policy scam.

Lt Governor V.K. Saxena last month gave the nod to the anti-money laundering agency to prosecute Kejriwal under the Prevention of Money Laundering Act (PMLA) in the 2021-22 liquor scam case.

The policy was later scrapped by the AAP government led by Kejriwal.

Both Kejriwal and Sisodia had filed distinct petitions before the Delhi HC challenging the trial court’s decision to take cognisance of the ED prosecution complaints filed against them in the alleged liquor policy scam. The AAP leaders had also sought a stay on trial proceedings on the ground that the court below had taken cognisance of the alleged offences under the Prevention of Money Laundering Act (PMLA) without any prior sanction having been obtained by the ED for prosecution.

The pleas contended that the trial court should have not taken cognisance of the ED’s prosecution complaint without sanction since Kejriwal as well as Sisodia held a public office at the time of the commission of the alleged money laundering offence.

Why is sanction necessary?

Under the Criminal Procedure Code (CrPC), no person who is/was a public servant can be prosecuted for an offence allegedly committed during the discharge of his official duties without first obtaining sanction from the appropriate government authority. The sanction provision prevents frivolous or politically motivated prosecutions against public servants and ensures that they are not prosecuted for actions performed in the course of their official duties unless there is a valid and justifiable cause.

What happened before the Delhi HC?

The Delhi High Court had asked the ED to respond to the distinct petitions filed by the AAP leaders but did not pass any interim order staying the trial proceedings as it had passed on a petition filed by senior Congress leader and former Union Minister P. Chidambaram against trial court proceedings in connection with the Aircel-Maxis money laundering case. In order to maintain judicial propriety, the trial court, reportedly, had paused framing of charges against Kejriwal after he moved the Delhi High Court challenging its order taking cognisance of the ED’s prosecution complaint in the absence of prior sanction.

In a recent hearing held on December 20, the proceedings before the Delhi High Court were deferred after an adjournment was sought on the ED's behalf due to the non-availability of Additional Solicitor General S.V. Raju. This met opposition from Kejriwal’s lawyer, who said that the agency should not seek adjournment. The AAP supremo’s counsel added that an early date for the next listing should be given in view of the forthcoming Delhi Assembly elections.

Ultimately, Justice Manoj Kumar Ohri-led Bench decided to take up the matter for hearing on January 30, along with Sisodia’s plea. With the grant of sanction, the pending petitions would likely turn infructuous and the AAP leaders may choose to institute fresh proceedings against the grant of sanction.

What did ED argue so far? Before the Delhi High Court, the Enforcement Directorate (ED), in the course of oral arguments, had argued that since the alleged offence of money laundering did not fall within the purview of "discharge of their official duties", Kejriwal as well as Sisodia, could be prosecuted without the requirement of sanction under Section 197 of the Code of Criminal Procedure (CrPC).

Recently, the Supreme Court, in the ED vs. Bibhu Prasad Acharya case, examined the question of grant of prior sanction for taking cognisance of the prosecution complaint filed by the ED under the PMLA. A 2-judge Bench of the apex court upheld a decision of the Andhra Pradesh High Court quashing the orders passed by the Special PMLA Court taking cognisance on the complaints filed against the accused, who at the relevant time, held the post of the Vice Chairman and Managing Director of Andhra Pradesh Industrial Infrastructure Corporation Ltd. and Principal Secretary of I&CAD Department of the Andhra Pradesh government.

The Supreme Court rejected the ED’s contention that the provisions of Section 71 of the PMLA will have an overriding effect over the provisions of the other statutes, including the CrPC. “Considering the object of Section 197(1) of the CrPC, its applicability cannot be excluded unless there is any provision in the PMLA which is inconsistent with Section 197(1). No such provision has been pointed out to us. Therefore, we hold that the provisions of Section 197(1) of CrPC are applicable to a complaint under Section 44(1)(b) of the PMLA," it held.

Bail to Arvind Kejriwal

(A) Corruption case: In September 2024, the Supreme Court directed Kejriwal to be released on bail in connection with the corruption case linked to the alleged liquor policy scam. While turning down his distinct plea challenging arrest by the CBI, Justice Surya Kant, heading a two-judge Bench, ordered Kejriwal's release on bail but restrained him from making any “public comments on merits of the case” pending trial before the Rouse Avenue Court.

"The terms and conditions imposed by the coordinate Bench in the ED matter shall apply in this case also. The appellant (Kejriwal) shall remain present before the trial court on each and every date of the hearing unless granted an exemption. He shall fully cooperate with the trial court for expeditious completion of trial proceedings," the bench added.

(B) Money Laundering case: In a judgment passed on July 12 last year, another bench headed by Justice Sanjiv Khanna (now CJI) opined that Kejriwal may be released on interim bail in the money laundering case, given the fact that the right to life and liberty is sacrosanct, and he has suffered incarceration of over 90 days.

The 2-judge Bench referred to a larger bench Kejriwal’s plea challenging his arrest and subsequent remand by the ED in the alleged liquor policy scam for an authoritative pronouncement on the questions of law involved.

In the same judgment, the Justice Khanna-headed Bench had asked Kejriwal to take a call on stepping down from the CM post.

"We are conscious that Arvind Kejriwal is an elected leader and the Chief Minister of Delhi, a post holding importance and influence. We have also referred to the allegations. While we do not give any direction, since we are doubtful whether the court can direct an elected leader to step down or not function as the Chief Minister or as a Minister, we leave it to Arvind Kejriwal to take a call," it said.

(C) Interim bail in money laundering case: In view of the 2024 general polls, a bench headed by Justice Khanna (now CJI) had ordered then CM Kejriwal to be released on 21-day interim bail in the money laundering case and had asked him to surrender on June 2.

Imposing a slew of conditions, the bench asked Kejriwal to not visit his office or secretariat, while out on interim bail. It clarified that the grant of interim relief should not be treated as an expression of opinion on the merits of the case or the appeal pending before the apex court. As per the SC order, Kejriwal was prevented from signing official files unless it was required and necessary for obtaining clearance/approval from the Lt Governor.

Bail to Manish Sisodia

In August 2024, the Supreme Court granted bail to Sisodia, saying that he could not be kept behind bars for an unlimited period of time in the hope of a speedy completion of trial in the alleged excise policy case.

A bench presided over by Justice B.R. Gavai had said: "In the present case, in ED as well as CBI matter, 493 witnesses have been named and the case involves thousands of pages of documents and over lakh pages of digitised documents."

"It is thus clear that there is not even a remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind bars for an unlimited period of time in the hope of speedy completion of the trial would deprive him of the Fundamental Right of Liberty given under Article 21 of the Constitution."

The Bench, also comprising Justice K.V. Viswanathan, held that on account of a long period of incarceration running for around 17 months and the trial not having commenced, Sisodia had been deprived of his right to a speedy trial.

Rejecting the contention that Sisodia, if granted bail, may tamper with the evidence, the Supreme Court had said that the prosecution case majorly stems from documentary evidence, which has already been seized by the CBI and the ED. It refused to accept Central agencies’ submission that Sisodia should not be allowed to visit the Delhi Chief Minister’s Office or Delhi Secretariat.

"The appellant (Sisodia) shall surrender his passport with the Special Court. The appellant shall report to the Investigating Officer every Monday and Thursday between 10-11 a.m. and the appellant shall not make any attempt either to influence the witnesses or to tamper with the evidence," it said.

In an earlier judgment delivered on October 30 last year, the top court had denied bail to the former Deputy Chief Minister but said that if the trial proceeds slowly in the next three months, he may apply for bail afresh.

Recently, the top court allowed a plea filed by Sisodia seeking relaxation of the bail condition requiring him to report to the Investigating Officer semi-weekly. “We do not find the said condition is necessary and the same is therefore deleted. However, it is directed that the applicant (Sisodia) shall regularly attend the trial court,” it ordered.

What is the case against Kejriwal and AAP?

As per the Central agencies, Kejriwal, along with other AAP leaders, had accepted bribes from the "South Group", a cartel allegedly controlling liquor sales and benefiting from the Delhi government's 2021-22 excise policy. Kejriwal and his ministers allegedly swindled over Rs 2,026 crore as the liquor excise policy lacked transparency and thrived on illegal decision-making to benefit some favoured licensees, said a Comptroller and Auditor General of India (CAG) report whose excerpts came into public domain recently.

Reportedly, the government auditor’s report said the exchequer lost around Rs 890 crore as the AAP government did not re-tender the surrendered retail liquor licences. The CAG report raised serious questions on the AAP government’s policy-making and implementation, citing several instances of irregularities like lack of transparency in pricing, violation in issue and renewal of licences, non-penalisation of violators, non-seeking of approval from LG, Cabinet or the Assembly.

The government lost an additional Rs 941 crore due to the exemptions that had to be given to the zonal licensees, the report said.

The Group of Ministers, headed by Sisodia, allegedly did not act on the recommendation of the expert panel and even allowed disqualified entities to bid for licences. While out on bail, the former CM Kejriwal has denied the allegations, accusing the BJP of weaponising central agencies to target political opponents.

--IANS

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