Arvind Kejriwal In Jail As Per Judicial Orders, ECI Has No Jurisdiction Over Rights Of Undertrials In Judicial Custody: Delhi High Court

While dismissing a PIL to provide information about the arrest of a politician immediately to the Election Commission of India (ECI) when the Model Code of Conduct is in force, the Delhi High Court has said that the plea “effectively challenges” the arrest of Chief Minister Arvind Kejriwal who is in judicial custody as per judicial orders.

A division bench headed by Acting Chief Justice Manmohan He said that the ECI does not have any jurisdiction with respect to the rights of undertrials who are in judicial custody.

“Therefore, the direction seeking separate information to ECI has no rationale or basis and undermines the safeguards which exist in law,” the bench, also comprising of Justice Manmeet PS Arora he said.

Although the PIL was dismissed on May 01, a detailed order was made available only yesterday.

Rejecting a plea filed by a final year law student, Amarjeet Gupta, the court observed that the petition conspicuously fails to name Kejriwal, though his identity was apparent due to the references made to his political standing or position in the pleadings.

“This Court is of the view that the present writ petition which effectively challenges the arrest of the National Convenor of AAP on 16th March, 2024 is not maintainable as the said person is in judicial custody in pursuance to the judicial orders, which are not a subject matter of the present petition,” the court said.

It added that Kejriwal admittedly has the means and wherewithal to approach the Court and file appropriate proceedings, which he has done before the Delhi High Court as well as the Supreme Court.

“A similar PIL ie, WP(Crl.) 1203/2024 was dismissed with costs by this Court on 22nd April, 2024 after observing that the writ petitioner therein has no locus standi to approach the Court for seeking relief with respect to criminal proceedings initiated against the said person. This petition as well is liable to be dismissed as the Petitioner herein has no locus standi to seek the reliefs in favor of the arrested person,” the court said.

Furthermore, the court observed that the direction to provide information of the arrest of a political party leader or a candidate to ECI when MCC is in force belied the law student’s legal understanding with respect to the Rule of law.

“Every person who is arrested by a law enforcement agency is required by law1 to be produced before the nearest Magistrate within a period of 24 hours of such arrest and the further incarceration of the arrested person is permissible only after obtaining orders of the Magistrate,” the court said.

It added: “In the facts alleged in the petition similarly, the concerned person after his arrest was duly produced before the competent Court and continues to remain in judicial custody in pursuance to the orders of the Court. Therefore, the direction seeking separate information to ECI has no rationale or basis and undermines the safeguards which exist in law.”

The court also said the direction to ECI for framing a policy for permitting arrested undertrial political leaders or candidates to carry on campaigning through virtual mode during elections was in ignorance of the existing rules in the jail manual which govern the rights of the undertrials.

“Even otherwise, the ECI does not have any jurisdiction with respect to the rights of undertrials, who are in judicial custody,” the court said.

It rejected the petition observing that it was frivolous and appeared to have been filed with the intent of garnering publicity.

“Though we were inclined to impose costs, however, learned counsel for the Petitioner has prayed that since the Petitioner is a student the costs be exempted. This petition is, therefore, without any merit is dismissed,” the court said.

Counsel for Petitioner: Md. Imran Ahmad, Mr. Gufran Khan and Ms. Ariana Ahluwalia, Advocate

Counsel for Respondents: Mr. Ankit Agarwal, Standing Counsel with Mr. Ashish Shukla, Mr. Atul Raj and Mr. Jayant Rao, Advocates for ECI-R-1; Mr. Chetan Sharma, ASG, Mr. Apoorv Kurup, CGSC with Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Saurabh Tripathi, Mr. Vikramaditya Singh, Mr. Akhil Hasija and Ms. Nidhi Mittal, Advocates for R-2 and R-3


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