Delhi High Court Issues “Last and Final Opportunity” to ED in Kejriwal Bail Challenge, Citing Repeated Delays

NEW DELHI – In a pointed judicial rebuke, the Delhi High Court has granted the Enforcement Directorate (ED) a “last and final opportunity” to present its arguments challenging the bail granted to Aam Aadmi Party (AAP) leader and Delhi Chief Minister Arvind Kejriwal. The case, rooted in the contentious Delhi liquor policy money laundering probe, has become a focal point for debates on procedural propriety, prosecutorial tactics, and the stringent bail conditions under the Prevention of Money Laundering Act, 2002 (PMLA).

Justice Ravinder Dudeja issued the stern warning on Tuesday after the central agency sought yet another adjournment, citing the unavailability of Additional Solicitor General (ASG) S.V. Raju, who was reportedly engaged before the Chief Justice of India's bench in the Supreme Court. The matter is now scheduled for hearing next month, on November 10.

The Core of the Contention: Repeated Adjournments

The hearing saw sharp opposition from Kejriwal's counsel, Senior Advocate Vikram Chaudhari, who informed the court that this was the ninth or tenth such adjournment requested by the ED. He argued that the agency was engaging in a deliberate strategy to prolong the proceedings "without any rhyme or reason."

Chaudhari highlighted a pattern of litigation he suggested was selective and politically motivated. “Identical cancellation of bail petitions filed in the Supreme Court- withdrawn. Identical cancellation of petitions filed in the High Court- withdrawn. All (accused) have been granted bail. There is nothing left in this. Am I the chosen one? It is political mileage, nothing else,” he contended before the court.

Justice Dudeja acknowledged the frustration, noting orally that the hearing date had been fixed with the consent of both parties and was intended for final disposal. While ultimately granting the ED's request in the "interest of justice," the court's formal order underscored its dwindling patience:

“Considering that the ASG is not available today as being held up before the Hon'ble Supreme Court, in the interest of justice, a last and final opportunity is granted to the petitioner department to submit its arguments.”

This judicial admonishment brings to the forefront a critical issue in high-stakes litigation: the balance between accommodating the schedules of senior law officers and preventing the weaponization of procedural delays, which can effectively undermine a favorable bail order.

Legal and Procedural Background

The case traces back to the now-scrapped Delhi Excise Policy 2021-22. The ED alleges that the policy was designed to provide undue favors to license holders in exchange for kickbacks, with the proceeds constituting the "proceeds of crime" under the PMLA.

A timeline of key events is crucial for legal context: - March 21, 2024: Arvind Kejriwal is arrested by the ED in the money laundering case. - May 2024: The Supreme Court grants him interim bail until June 1, 2024, to campaign for the general elections. - June 20, 2024: Vacation Judge Niyay Bindu of the Rouse Avenue Courts grants Kejriwal regular bail, a significant development in the case. - June 2024: The ED immediately moves the Delhi High Court, which grants a stay on the trial court's bail order, arguing it was not given a sufficient opportunity to oppose the bail plea. - July 12, 2024: In a separate proceeding challenging his arrest, the Supreme Court grants Kejriwal interim bail while referring critical questions on the "need and necessity of arrest" under the PMLA to a larger constitutional bench. This referral is being closely watched by the legal community for its potential to reshape arrest powers under the Act.

The ED's challenge to the June 20 bail order hinges on the argument that the trial court failed to properly apply the "twin conditions" for bail under Section 45 of the PMLA. This provision requires the court to be satisfied that there are "reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail." The agency maintains that the trial court's order overlooked substantial evidence against Kejriwal.

Analysis: A Clash of Liberty and Prosecutorial Prerogative

The High Court's latest order is more than a procedural directive; it is a signal of judicial oversight over the litigation process itself. For legal practitioners, this development raises several important questions:

• Strategic Delay vs. Genuine Unavailability: While the unavailability of a designated senior counsel is a common reason for adjournment, the repeated nature of the requests in this case has led to accusations of a deliberate stall. The court's "last opportunity" warning suggests it is now inclined to view further requests with extreme skepticism, potentially proceeding with the matter regardless.

• The Potency of a Stay Order: The ED successfully secured a stay on Kejriwal's bail, effectively neutralizing the trial court's order. The subsequent delays in hearing the main challenge mean that the effect of the stay is prolonged, keeping the question of Kejriwal's liberty in limbo despite a lower court's finding in his favor. This highlights the immense power of an interim stay and the corresponding judicial responsibility to hear the underlying matter expeditiously.

• The Shadow of the Supreme Court's Larger Bench: The entire proceeding is shadowed by the Supreme Court's pending examination of the PMLA's arrest provisions. The larger bench's future ruling could fundamentally alter the landscape of PMLA litigation, potentially impacting the very basis of Kejriwal's arrest and continued prosecution. The defense's strategy may involve waiting for this larger jurisprudential shift, while the prosecution may be keen to secure a definitive ruling from the High Court beforehand.

• Judicial Discretion in Bail Matters: The case underscores the wide discretion vested in courts at different levels. The trial court, after reviewing the material, found sufficient grounds to grant bail. The High Court, in its initial review, found the ED's challenge strong enough to warrant a stay. The final hearing on November 10 will be a critical test of these competing judicial assessments, centered on the stringent threshold of Section 45.

As the matter heads for a potentially decisive hearing, the legal community will be watching closely. The outcome will not only determine the immediate fate of a high-profile political figure but will also serve as a barometer for how courts are balancing the draconian provisions of the PMLA with the fundamental principles of personal liberty and the imperative for a speedy judicial process. The court's final warning has set the stage; whether the ED will seize its last opportunity or face a conclusive order remains to be seen.