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No disciplinary action against judicial officers for merely passing a wrong order; mere negligence is not misconduct: SC

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SC seeks Centre’s reply on fresh pleas against CAA

While coming out stoutly in support of a judicial officer, we saw how as recently as on March 15, 2022 the Apex Court in a learned, laudable, landmark and latest judgment titled Abhay Jain vs The High Court of Judicature for Rajasthan and Anr. in 2022 LiveLaw (SC) 284 and Civil Appeal No.2029 OF 2022 [Arising Out Of Special Leave Petition [C] NO.6107 OF 2020] while reinstating a judicial officer observed quite clearly, cogently and convincingly that mere negligence cannot be treated as misconduct to terminate services of a judicial officer. The Bench comprising of Justice Uday Umesh Lalit and Justice Vineet Saran observed that disciplinary proceedings against a judicial officer is not warranted merely because a wrong order has been passed by him/her or the action taken by him could have been different. The Bench clearly held that, “Negligence cannot be treated to be misconduct – Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54).” The Bench also made it clear that, “When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50).”

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Vineet Saran for a Bench of Apex Court comprising of himself and Justice Uday Umesh Lalit sets the ball rolling by first and foremost putting forth in para 2 that, “The appellant, who joined as a judicial officer in 2013, having been discharged from service in the year 2016, filed a Writ Petition in the Rajasthan High Court, which was dismissed by the impugned judgment dated 21.10.2019 passed by a Division Bench of the High Court. Aggrieved by the same, this appeal has been filed by way of this Special Leave Petition.”

To put things in perspective, the Bench then envisages in para 3 that, “Brief facts relevant for the purpose of the present case are that a notification inviting applications for District Judge Examination, 2013 was issued on 19.07.2011. The selection was to be made from amongst the candidates of Advocates’ Quota under the Rajasthan Judicial Services Rules, 2010 (for short ‘RJS Rules’). In the said examination, the result of which was declared on 25.05.2013, the appellant stood first. On 15.07.2013, the appellant was appointed to the post of Additional District Judge under Rule 43 of the RJS Rules read with Article 233(1) of the Constitution of India and as per the Rule 44 of RJS Rules, the appellant was to be on probation for a period of 2 years. By an order dated 16.07.2013, the appellant was posted as an Additional District & Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013. Then on 05.05.2014, the appellant was posted as Presiding Officer, Labour and Industrial Tribunal, Bharatpur, on which post he joined on 06.05.2014. He was thereafter, by an order dated 24.02.2015, appointed as Sessions Judge, AntiCorruption Department (ACD), Bharatpur, on which post he joined on 25.02.2015.”

Truth be told, the Bench then reveals in para 4 that, “It was during his posting as Sessions Judge, Anti-Corruption Department, Bharatpur, that a bail was granted by the appellant, which is the genesis of the action which has been taken against the appellant.”

While elaborating on the facts, the Bench then discloses in para 5 that, “In a case under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddin and Irfan were arrested on 29.12.2014. The said K. K. Jalia, who was the Chairman of the Municipal Corporation, was alleged to have taken a bribe of Rs.5 Lakhs; Alimuddin, who was a Police Constable, was alleged to have taken a bribe of Rs.10 Lakhs; and Irfan, was a nonofficial also alleged to be involved in the case. On 08.01.2015, the predecessor of the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin was also dismissed on 03.02.2015. The Investigation Officer had sent a letter to the concerned department seeking sanction of prosecution against the said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Charge sheet was filed against all the three accused on 23.02.2015. It was at this stage, on 25.02.2015, that the appellant was appointed as Sessions Judge, Anti-Corruption Department.”

Furthermore, the Bench then added in para 6 that, “Then on 04.03.2015, the second bail application of the accused Alimuddin was rejected by the appellant. The bail application of K. K. Jalia was rejected by the Rajasthan High Court on 11.03.2015. On 17.03.2015, the second bail application was filed by K. K. Jalia before the appellant. It is noteworthy that the Rajasthan High Court granted bail to the co-accused Irfan (who was a private person) on 16.04.2015, and then on 27.04.2015, bail was also granted to Alimuddin by the Rajasthan High Court.”

Adding more to it, the Bench then observes in para 7 that, “On the second bail application of K. K. Jalia filed on 17.03.2015, the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015, on the main file the case was fixed for 31.03.2015 for filing of sanction of prosecution of K. K. Jalia and till then the judicial custody of remand was extended in the bail matter. On 20.03.2015, the bail matter was adjourned for 31.03.2015. On 31.03.2015, the bail matter was adjourned for 13.04.2015 and in the main file, 13.04.2015 was fixed for filing of prosecution sanction against K. K. Jalia and for arguments on cognizance. On 13.04.2015, on which date the appellant was on leave, the bail matter was again adjourned by the officiating Presiding Officer for 16.04.2015, and on the main file it was noted that no sanction against K. K. Jalia was received and since the appellant was on leave, the case was fixed for 27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On 16.04.2015, a fresh application of bail was filed by the accused K. K. Jalia stating that he was arrested on 27.12.2014 and charge sheet was filed on 23.02.2015, but till date no sanction of prosecution as required under Section 19 of the Prevention of Corruption Act, 1988, had been given, and that the custody of the accused K. K. Jalia was illegal as the accused could not be detained for an indefinite period. On the said date the appellant, in his order, observed that from 23.02.2015 till date i.e. 16.04.2015, there was no document on the file which would indicate that any progress has been made with regard to grant or refusal of sanction, and accordingly, it was directed that such a progress report be filed with regard to the efforts of the Anti-Corruption Department for grant of sanction be submitted on 27.04.2015, and time was also granted to file reply to the bail application by the next date i.e. 27.04.2015. On 17.04.2015, the matter was placed with regard to the attestation of bail of Irfan, who had been granted bail by the Rajasthan High Court on 16.04.2015.”

Going ahead, the Bench then mentions in para 8 that, “On 27.04.2015, on the main file, the investigation officer sought time for filing of sanction against K. K. Jalia and 08.05.2015 was fixed and till then, the judicial custody and remand of K. K. Jalia and Alimuddin was extended. In the bail application of K. K. Jalia, which was also fixed for 27.04.2015 and was taken separately, two letters had been filed. One letter dated 24.04.2015 mentioned that a file for sanction of prosecution of K. K. Jalia was submitted to the State Government, and the other letter dated 27.04.2015, which was addressed to the appellant, mentioned that a meeting to discuss whether the prosecution sanction should be granted or not was held on 23.03.2015, but no decision had been reached, and thus, the file had been sent back to the State Government to take a decision in that regard and the same was still pending. It was also pointed out that the other co-accused Alimuddin (Police Constable) had been granted bail by the Rajasthan High Court on the same date i.e. 27.04.2015. The appellant heard the matter of bail of K. K. Jalia and granted bail to him by a detailed order. On 28.04.2015, the matter for attestation of bail of Alimuddin was taken on the main file as the Rajasthan High Court granted him bail on 27.04.2015. The sanction of prosecution of K. K. Jalia was also received on the main file on 28.04.2015.”

On the face of it, the Bench then states in para 9 that, “It appears from the record that the bail order in the case of K. K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itself and on 02.05.2015 the appellant was directed by the Rajasthan High Court to submit his comments regarding the said order dated 27.04.2015. The appellant submitted his response/comments on 12.05.2015 stating therein that the fact of dismissal of bail by the Rajasthan High Court on 11.03.2015 was neither argued by the Counsel nor the copy of the order was filed or produced, even though time was granted to the prosecution on 16.04.2015 to file the reply to the bail application. In the said reply, it was admitted by the appellant that the fact of dismissal of the bail by the Rajasthan High Court came to his notice from the memo of the second bail application while he was dictating the bail order dated 27.04.2015, and it was stated by the appellant in his reply that since the order of the Rajasthan High Court dated 11.03.2015 was not produced before him, he had thought that there was definitely a change in circumstances from 11.03.2015 as the period of the custody of the accused was nearing four months and also that 48 days had passed from 11.03.2015 to 27.04.2015 and in the absence of prosecution sanction, especially when it could not be known as to when such sanction would be granted, the trial could not start. It was also stated by the appellant that other two co-accused, whose bail application had been rejected by him earlier, had already been granted bail by the Rajasthan High Court. After considering, the explanation of the appellant, the Chief Justice of the Rajasthan High Court directed to initiate departmental enquiry under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short ‘CCA Rules, 1958).”

It cannot be lost on us that the Bench then observes in para 47 that, “Moreover, it is not disputed that the ACRs were not communicated to him within reasonable time. In this context, a 3-Judge Bench of this Court in Sukhdev Singh vs Union of India [(2013) 9 SCC 566] has held that:

“In our opinion, the view taken in Dev Dutt [Dev Dutt vs Union of India] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period.” (emphasis supplied)

Hence, in light of the above, the non-communication of the ACRs to the appellant in the present case is arbitrary and as has been held by this court in Maneka Gandhi vs Union of India [(1978) 1 SCC 248], such arbitrariness violated Article 14 of the Constitution of India.””

Quite forthrightly, the Bench then holds in para 50 that, “The present case of the appellant is squarely covered by the abovementioned Constitution Bench judgements of this Court. Since the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, in the facts and circumstances of the present case, the substance of the termination order reveals that the discharge was by way of punishment. Hence, the question that whether the action of non-confirmation of the appellant is in accordance with Rules 45 and 46 of the RJS Rules is answered in the Negative.”

Be it noted, the Bench then clearly holds in para 69 that, “In light of the above judicial pronouncements, we hold that the appellant may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. Moreover, the enquiry officer virtually sat as a court of appeal picking holes in the order granting bail, even when he could not find any extraneous reason for the grant of the bail order. Notably, in the present case, there was not a string of continuous illegal orders that have been alleged to be passed for extraneous considerations. The present case revolves only around a single bail order, and that too was passed with competent jurisdiction. As has been rightly held by this Court in Sadhna Chaudhary (supra), mere suspicion cannot constitute “misconduct”. Any ‘probability’ of misconduct needs to be supported with oral or documentary material, and this requirement has not been fulfilled in the present case. These observations assume importance in light of the specific fact that there was no allegation of illegal gratification against the present appellant. As has been rightly held by this Court, such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer.”

It is also worth noting that the Bench then points out in para 70 that, “Additionally, the High Court in the impugned order has erroneously stated that there must have been some oral complaint which resulted in the explanation being sought by the Respondent. This, it is held, was based on conjectures and is in stark contravention to the proposition laid down in the above referred judgements, especially given the fact that the High Court had itself recorded that there was no written complaint against the appellant. Lastly, reliance placed by the High Court in the impugned order on Director Aryabhatta research Institute of Observational Sciences (supra) is misconceived as the facts of the said case are distinguishable on facts since in the said case, the enquiry was only a preliminary enquiry prior to the initiation of a formal inquiry and furthermore, there were many letters of the management regarding unsatisfactory performance, of which the delinquent officer was intimated in advance.”

Most significantly, the Bench then states what forms the cornerstone of this notable judgment in para 71 that, “To conclude, we are of the firm view that in the present case there was no material to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s discharge was not simpliciter, as claimed by the respondent. The non-communication of the ACRs to the appellant has been proved to be arbitrary and since the respondent choose to hold an enquiry into appellant’s alleged misconduct, the termination of his service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. After perusing all the relevant record, we hold that the appellant was competent to pass the bail order dated 27.04.2015 and that the Respondent has not been able to prove the presence of any extraneous consideration or ulterior motive on the part of the appellant. It should also be highlighted here that neither the bail order dated 27.04.2015 was ever challenged by the State before any Court of law, nor was any complaint received against the appellant regarding the said bail order. This is not the case where there are strong grounds to suspect the appellant’s bona fides. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”.”

Finally, the Bench then concludes by holding in para 72 that, “Accordingly, the Appeal is Allowed and the impugned order of the High Court dated 21.10.2019 is set aside and the discharge order dated 27.01.2016 is quashed. Keeping in view that the appellant has not worked as judicial officer after he was discharged, we direct that while the appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months from today.”

In sum, the Apex Court has drawn the right, rational and robust conclusion for which it must be applauded. The Apex Court has very rightly held that mere negligence cannot be termed misconduct. Justice UU Lalit and Justice Vineet Saran deserves all the praise under the sun for doing justice with a Judge himself who clearly became a victim in this case even though he was never tainted with any allegation of corruption of any kind. All kudos to both Justice Lalit and Justice Saran for doing so and for not getting straightaway swayed by what the Rajasthan High Court held! Of course, all High Courts must adhere to what the Apex Court has held in this case so clearly, cogently and convincingly!

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Legally Speaking

Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986

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The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.

Arguments:

It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

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Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

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In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

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Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

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The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

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Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

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The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

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Supreme Court: Plea To Stay Citizenship Amendment Act

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The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

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Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

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The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

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