In a major victory for the Aam Aadmi Party (AAP), the Supreme Court on Friday (September 13, 2024) granted regular bail to Delhi Chief Minister Arvind Kejriwal in the case registered against him by the Central Bureau of Investigation (CBI) in connection with the now-scrapped liquor excise policy.
While Justices Surya Kant and Ujjal Bhuyan concurred on the decision to grant bail to the AAP supremo, they were, however, at odds concerning the legality of his arrest by the central agency. Earlier, the top ourt had granted interim bail to Mr. Kejriwal in the money laundering case registered by the Enforcement Directorate (ED), reaffirming the sacrosanct nature of the right to life and liberty. However, he remained in custody due to the ongoing proceedings in the CBI case.
The Delhi CM is the fourth AAP leader to secure bail in the Delhi excise policy case, following former Deputy Chief Minister Manish Sisodia, Member of Parliament Sanjay Singh, and former AAP communications head Vijay Nair.
In light of this development, here are the key takeaways from the verdict.
The legality of the arrest
Mr. Kejriwal was arrested by the CBI on June 26 while already in judicial custody in connection with the ED’s money laundering case. During the proceedings, senior advocate Dr. A.M. Singhvi, appearing for the Chief Minister, contended that the central agency had failed to adhere to Section 41(1)(b)(ii) of the CrPC, which outlines the conditions under which a police officer may arrest an individual accused of a cognisable offence without a warrant. He argued that Mr. Kejriwal’s arrest without a warrant was illegal, as none of the stipulated conditions were applicable.
The senior counsel further asserted that since the Chief Minister was already in custody at the time of the CBI arrest, there was no risk of him committing any further offences. He also refuted the possibility of evidence tampering, noting that the charge sheets had already been filed. Moreover, he argued that, as a constitutional authority, Mr. Kejriwal could not be deemed a “flight risk.” In contrast, Additional Solicitor General (ASG) S.V. Raju, representing the CBI, argued that Section 41 of the CrPC was not applicable since the special court had granted permission to arrest Mr. Kejriwal on June 25. Alternatively, he maintained that even if Section 41 did apply, the arrest met several conditions outlined in Section 41(1)(b)(ii) due to actions such as the Chief Minister’s attempt to “derail” the investigation and influence witnesses.
Concurring with the CBI’s contention, Justice Kant observed that this particular provision was inapplicable since the special court had sanctioned the arrest following the “application of judicial mind.”
“There was thus no occasion for the arresting police officer to form an opinion regarding the existence of valid reasons of arrest. The competent court having undertaken such a task, the police officer cannot be expected to sit over the order of the court,” he reasoned.
The judge also addressed arguments regarding the central agency’s compliance with Section 41A of the CrPC — which mandates the issuance of a notice to the accused when their presence is needed before the investigating authority. He noted that this provision does not apply to individuals already in judicial custody, and therefore, no “procedural infirmity” was committed by the CBI.
Timing and the right against self-incarceration
In his separate opinion, Justice Bhuyan questioned the CBI’s perceived urgency in arresting Mr. Kejriwal 22 months after the first FIR was registered. He underscored that the timing was questionable, as the Chief Minister was on the brink of being released from jail following a special court order granting him bail in the money-laundering case. Echoing Mr. Singhvi’s characterisation of the arrest as an “insurance arrest,” the judge observed, “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.”
The judge also dismissed the CBI’s contention that the arrest was necessary since Mr. Kejriwal was “evasive” in his responses. “It cannot be the proposition that only when an accused answers the questions put to him by the investigation agency in the manner in which the investigating agency would like the accused to answer, would mean that the accused is cooperating with the investigation,” he reasoned.
Notably, Justice Bhuyan also affirmed that an accused is entitled to the fundamental right against self-incrimination under Article 20(3) of the Constitution. Thus, Mr. Kejriwal cannot be compelled to make self-incriminating statements, he pointed out.
‘Caged parrot’
Without mincing words, Justice Bhuyan reminded the CBI that it must maintain the highest standards of integrity, given its status as the “premier investigating agency of the country.” Asserting that the use of coercive powers, such as arrest, must be judicious and not serve as a pretext for harassment, the judge remarked, “Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a highhanded and biased manner.”
He also referred to the sobriquet attributed to the CBI by a Bench led by Justice R.M. Lodha during the infamous coal scam case in May 2013, where the CBI was derisively dubbed a “caged parrot speaking in its master’s voice.”
“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,” Justice Bhuyan opined.
Relegation to trial court must be done ‘promptly’
The top Court also dismissed the CBI’s claim that the Delhi CM ought to have first approached the sessions court for bail instead of the Delhi High Court. Under Section 439 of the CrPC, both the High Court and sessions courts exercise concurrent jurisdiction to grant bail for non-bailable offences. Nevertheless, the central agency contended during proceedings that judicial precedents require an accused to first seek bail from the concerned sessions court, except in “exceptional” circumstances.
Justice Kant observed that, as a matter of principle, an accused should first seek bail from the trial court. This process not only provides the accused an opportunity for initial relief but also allows the High Court to serve as a secondary avenue if the trial court denies bail for inadequate reasons. However, he cautioned that superior courts should adhere to this procedural recourse from the very outset.
“If an accused approaches the High Court directly without first seeking relief from the Trial Court, it is generally appropriate for the High Court to redirect them to the Trial Court at the threshold. Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the Trial Court at a later stage. Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities,” the judge underscored.
Similarly, Justice Bhuyan opined that if the Delhi High Court wanted to remand Mr. Kejriwal to the trial court, it should have done so at the threshold itself. “After issuing notice, after hearing the parties at length and after reserving the judgment for about a week, the above order was passed by the High Court. Though couched in a language which appears to be in favour of the appellant, in practical terms it has only resulted in prolonging the incarceration of the appellant for a far longer period, impacting his personal liberty,” he noted.
Bail conditions
On the point of bail, both judges concurred that the continued incarceration of the AAP chief violated his right to personal liberty. The Court noted that extensive documentary evidence has been submitted in the case — four chargesheets, arraigning 224 witnesses and 17 additional accused, were filed in the trial court. “There is no likelihood of the completion of the trial in the immediate future,” Justice Kant highlighted.
Accordingly, Mr. Kejriwal was ordered to be released on bail on a bond of ₹10 lakh with two sureties. He was also barred from making any public comments regarding the case to avoid “building a narrative” around a sub-judice matter. Two other bail conditions were adopted from the July 12 order of the apex Court granting the Chief Minister interim bail in the ED case to campaign for the Lok Sabha elections. This includes a prohibition on Mr. Kejriwal from visiting the Chief Minister’s office and the Delhi Secretariat or signing official files unless it is essential for obtaining clearance or approval from the Lieutenant Governor of Delhi. Justice Bhuyan however said he had “serious reservations” about these two onerous bail conditions.
Published - September 13, 2024 07:12 pm IST
