On September 13, the Supreme Court granted bail to the Aam Aadmi Party Chief & Delhi Chief Minster (CM) Arvind Kejriwal in a case registered by the Central Bureau of Investigation (CBI) over the alleged Delhi Liquor Policy Scam.
The division bench of Justices Surya Kant and Ujjal Bhuyan upheld the bail granted by the special court, while pronouncing its judgement in Arvind Kejriwal v. Central Bureau of Investigation, [SLP (Crl) No. 11023/2024], had heard the matter and reserved verdict on September 5.
Both the judge’s pronounced separate judgements while affirming bail to Delhi CM unanimously. Notably, Justice Bhuyan went one step further and unjustified the CBI arrest and he also observed that the arrest was only meant to frustrate the grant of bail in the ED case against him (Kejriwal). He added that he is in complete agreement with the conclusion and direction stated by Justice Surya Kant that the appellant should be released on bail but on the necessity and timing of the arrest, he stressed that “I have a definite point of view”.
The Supreme Court’s division bench pronounced its verdict against Kejriwal’s challenge to the Delhi High Court order of August 5, whereby his petition challenging the CBI arrest on June 26, 2024 and seeking bail were dismissed with liberty to approach the trial court for bail.
Brief background and a time-line:
In the ED case, it is alleged that Arvind Kejriwal is the main conspirator of the Delhi excise scam and is directly involved in the use of corruption money of over Rs. 100 crores. The ED’s case claims that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12% to certain private companies, although such a stipulation was not mentioned in the minutes of the meetings of the Group of Ministers (GoM).
He became the first sitting Chief Minister to be arrested while in office. His arrest came after months of non-compliance with nine summonses from the ED, which he had labelled “illegal.”
AAP Chief & Delhi CM Arvind Kejriwal was arrested by the Enforcement Directorate (ED) on March 21, 2024, in connection with a money laundering case and his alleged indulgence in Delhi Excise Policy Scam 2021-22.
Later, on May 10, the Supreme Court granted Kejriwal interim bail until June 1, in the money laundering case, and highlighted that Kejriwal, as Chief Minister and leader of a national party, posed no threat to society and had no criminal background.
On June 2, Kejriwal surrendered at Tihar Jail as Supreme Court Registry on May 29, refused to list Delhi CM’s plea for extension of interim bail.
On June 20, 2024, Delhi’s Judge Nyay Bindu of Rouse Avenue Court granted bail to CM Kejriwal in the money laundering case.
In a dramatic shift in CM Kejriwal’s bail, on June 21, the Delhi High Court stayed the order granting bail to Kejriwal in the money laundering case connected to the liquor policy case. The High Court stayed the operation of the bail order till the final order is passed on the stay application filed by the ED.
On June 25, the Delhi High Court finally stayed the trial court’s order granting bail to CM Kejriwal. Justice Sudhir Jain while staying the bail, observed that trial court didn’t properly appreciate ED’s case & materials. He opined that the vacation judge failed to discuss the requirement of section 45 of PMLA while passing the bail order.
On June 26, 2024, in a significant move, the AAP chief was formally arrested by the CBI while he was in custody of the ED in the excise case. The CBI was investigating this case on corruption and bribery involvement. Delhi Court on same day, remands CM Kejriwal for 3 days CBI custody.
On July 12, 2024, the Supreme Court granted Kejriwal interim bail in the ED case, questioning the validity and timing of his arrest by the ED in March, 2024. Despite the bail in the ED case on June 20, Kejriwal remained in custody under CBI’s separate charges.
On August 5, the Delhi High Court upheld the CBI’s decision to arrest Kejriwal, directing him to approach trial court to seek regular bail.
On August 12, 2024, Kejriwal challenged the Delhi High Court’s decision before the Supreme Court in which, the Supreme Court after hearing the arguments and submission made by the Kejriwal’s Counsel and CBI’s response, reserved the verdict on September 5, 2024.
And, significantly on September 13, the division bench of Supreme Court set aside the arrest made by CBI in June 26 and ordered the release of Delhi CM Arvind Kejriwal.
Submissions made by Arvind Kejriwal
Senior Advocate Abhishek Manu Singhvi appeared for Delhi CM Kejriwal. He submits that Kejriwal was arrested illegally, in violation of the procedure enumerated in Sections 41(1) and 41A of the CrPC. He further added that High Court erred in misapplying the provision of Section 41(2) of the CrPC to justify the noncompliance’s of Section 41(1)(b)(ii) of the CrPC and consequential arrest of the Appellant. He highlighted that Section 41(2) is attracted only non-cognizable offences and arrest of the Kejriwal was made in a case of cognizable offence. Singhvi also submits that the arrest was made against the dictum of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
Singhvi also emphasized that Kejriwal has been granted both interim and regular bail in the ED matter by this Court, where the conditions are stricter and submits that the trial was not likely to be concluded in the near future, as the FIR was registered on 17.08.2022, with one chargesheet and three supplementary chargesheets having been filed, 17 accused persons arraigned, as many as 224 witnesses cited and the physical and digital records running into lakhs of pages. Further he added that the fourth supplementary charge sheet was filed on 29.07.2024.
Submissions made by CBI
For CBI, Additional Solicitor General of India, S.V. Raju appeared before the bench and contended that arrest of the Kejriwal had been conducted in due compliance with the statutory procedure as contemplated in Section 41(1) and 41A of the CrPC. He strenuously urged that the pre-requisites set out in Section 41(1)(b)(ii) had been fulfilled as the CBI deemed it imperative to conduct the custodial interrogation of the Appellant to unearth a larger conspiracy hatched amongst the accused persons and to establish the money trail of ill-gotten proceeds. He argued that the CBI had obtained permission from the Trial Court, under whose custody the Appellant was.
ASG Raju referred, Section 41A (4) of the CrPC, which outlines the procedure for situations where an accused fails to comply with a Section 41A notice. He submits that, Kejriwal is already in jail, the conditions envisaged under Section 41A (4) becomes inapplicable and therefore, the requirement of notice thereunder was not necessary. He submits that Kejriwal should be relegated to the Trial Court.
Decision of the Supreme Court
The division bench Justices Surya Kant and Ujjal Bhuyan of Supreme Court, granted bail to Arvind Kejriwal without going into the merits of the case. The bench affirmed the grant of bail to Kejriwal in concurrent view.
The observations made by Justice Surya Kant in its separate judgement shifted more to procedural grounds and technical aspects of the arrest. He affirmed the lawfulness of CBI arrest but on the other hand Justice Bhuyan expressed its different opinion with regards to the dramatic and hasty arrest made by CBI just after Kejriwal granted bail in ED case.
The bench also imposed bail bonds for a sum of Rs. 10,00,000/- against bail and made restriction Kejriwal from making any public comments on the merits of the CBI case. (Para 47)
Justice Bhuyan questions need and necessity of CBI arrest
Pertinently, Justice Ujjal Bhuyan in his separate judgment, has expressed displeasure with CBI and said that Kejriwal’s arrest by the agency after secured bail in the ED case was only to frustrate Kejriwal’s release from prison.
Justice Bhuyan while playing active role in pronouncing of judgement in CM Kejriwal’s CBI arrest and unjustified the CBI arrest and said that the CBI did not arrest Kejriwal for 22 months and arrested Kejriwal just after the bail granted by ED.
Justice Bhuyan while questions the timing of CBI arrest, observed that “it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 i.e., for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.” (Para 23)
“Power to arrest is one thing but the need to arrest is altogether a different thing”
Justice Bhuyan more specifically underlined the need and necessity of power to arrest while expressing his displeasure with CBI’s impugned arrest. He stated that “Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it 16 should arrest such a person.” He further added that the existence of the power of arrest is one thing but justification for the exercise of it is quite another. (Para 27).
Justice Buyan relied upon the decision in Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1 and emphasized that investigation must be fair and effective. He stressed that investigation should be conducted in a manner so as to draw a just balance between a citizen’s right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India. (Para 28)
“Investigations are not used as a tool of harassment”
Notably, Justice Bhuyan pointed out the observation made in the case of Mohd. Zubair and Arnab Goswami, and reiterated that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly and proper enforcement of criminal law on the one hand and the need to ensure that the law does not become a ruse for targeted harassment on the other. He further added that “courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of the citizens. Deprivation of liberty even for a single day is one day too many.” (Para 30)
The bench placed reliance in case of Mohd. Zubair Vs. State (NCT of Delhi), (2022) SCC Online SC 897, and emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. He pointed out that “this Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment.” (Para 30)
“CBI must dispel the notion of being a caged parrot”
Justice Bhuyan underlines that the CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot, he also reminded the CBI of its duty to ensure that its investigations are fair. Justice Bhuyan lambasted the CBI, pointing that as a premier investigating agency of the country, it should not perceive as making arrests in a high-handed manner.
While questioning the manner in which CBI made arrested of CM Kejriwal he emphasized that “CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high-handed and biased manner” (Para 32)
Justice Bhuyan reprimands the CBI and observed that in functional government by the rule of law, perception matters. He added that “not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot” (Para 33)
Justice Kant stands on procedural grounds and technical aspect of the arrest
Justice Surya Kant while affirming the legality of the CBI arrest, primarily shifted towards procedural and technical aspect of the arrest and held that the arrest of Kejriwal was legal and did not suffer from any procedural irregularity. There is no merit in the submission that the CBI failed to comply with the statutory mandate of Section 41 of the Code of Criminal Procedure (CrPC) while arresting him (Kejriwal).
Justice Kant held that arrest was valid and in compliance with relevant procedural laws.
“There is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence.3 The Appellant’s arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024.” (Para 26)
Justice Kant procedural centric verdict also justified the procedure adopted by CBI during arrest of CM Kejriwal and held that Section 41A (3) allows for arrest, provided the reasons are recorded, justifying the necessity of such a step, and the police officer is satisfied that the individual should be arrested and Section 41A (1), when read with Section 41A (3) CrPC, does not impose an absolute prohibition on the arrest. (Para 27 & 28 of Justice Kant’s Judgement)
Justice Kant held that Kejriwal’s arrest does not suffer from any procedural flaw and was valid and said “in view of these considerations, we do not find any merit in the Appellant’s contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit”. (Para 29)
The bench unanimously grants bail to CM Kejriwal
Notably, despite the separate order passed by Justice Ujjal Bhuyan, the bench unanimously affirmed the bail to Arvind Kejriwal, while setting aside the impugned judgment of the High Court dated 05.08.2024, subject to the terms and conditions in para 47 of the order, authored by Justice Surya Kant.
However, Justice Ujjal Bhuyan has also doubted the correctness of the bail condition imposed by a bench headed by Justice Sanjiv Khanna in the ED case that Kejriwal will not sign papers and enter CM office. The bench also dismissed the criminal appeal challenging the legality of arrest.
The judgement of can be found here:
Related:
Between Bail and Jail, how authorities bypass law and jurisprudence
Supreme Court grants bail to Manish Sisodia in excise policy case after 17 months of incarceration