Explained: The Arvind Kejriwal Supreme Court bail judgment

Why has a two-judge Bench comprising Justices Surya Kant and Ujjal Bhuyan of the Supreme Court granted Delhi Chief Minister Arvind Kejriwal bail in the Delhi excise policy case?

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ON Friday, the Supreme Court granted bail to Delhi Chief Minister Arvind Kejriwal in a case registered by the Central Bureau of Investigation (CBI) concerning the Delhi excise policy case. This paves the way for him to walk out of Tihar jail.

Justice Surya Kant and Justice Ujjal Bhuyan ordered the release of Kejriwal by writing their individual Orders. There were two appeals before the Supreme Court.

First, an appeal challenging the Delhi High Court's Order upholding the arrest of Kejriwal by the CBI.

Second, an appeal challenging the Order of the Delhi High Court directing Kejriwal to approach the trial court for bail. Both the Orders were passed by Justice Neena Bansal Krishna on August 5, 2024.

Justice Kant, in his Order, has found no procedural infirmities in the arrest of Kejriwal by the CBI. On the other hand, Justice Bhuyan, in his Order, has questioned the necessity and timing of the arrest. He has called the arrest 'unjustified' and the timing of the arrest 'suspect'.

Justice Kant has not dealt with the necessity of the arrest in his Order.

Justice Bhuyan has also castigated the CBI for arresting Kejriwal on the cusp of his release in the same matter albeit registered by the Directorate of Enforcement (ED) on the same allegations.

For a better understanding of Kejriwal's arrest by the CBI, it is important to refer to certain factual aspects of the matter, which also involve the circumstances under which the ED arrested Kejriwal.

Facts

On August 17, 2022, the CBI registered a first information report (FIR) under Sections 120B read with Section 477A of the Indian Penal Code (IPC) and Section 7 of the Prevention of Corruption Act, 1988 against various persons.

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The FIR alleged irregularities, falsification, undue advantage and a conspiracy among the persons holding positions of responsibility within the Delhi government in framing and implementing the excise policy for the year 2021–22. Kejriwal was not named in the FIR.

On April 14, 2023, Kejriwal received a summons from the CBI. He complied with it. He said the CBI questioned him for about nine–ten hours. On August 22, 2022, the ED registered a case under the Prevention of Money Laundering Act (PMLA), 2002, based on the offences under which the CBI case was registered.

On March 21, 2024, the ED arrested Kejriwal. He challenged his arrest unsuccessfully in the Delhi High Court. Justice Swarana Kanta Sharma rejected the challenge on April 9, 2024. Kejriwal challenged the high court Order in the Supreme Court.

On May 10, 2024, a Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta granted interim bail to Kejriwal in the ED case till June 2, 2024, given the ongoing Lok Sabha elections. On completion of the period of interim bail, Kejriwal surrendered and was taken back into custody.

As part of the interim bail, Kejriwal was barred from entering the office of the chief minister and was restrained from signing papers.

On May 16, 2024, the Supreme Court reserved the judgment on the petition challenging the arrest by the ED. The court also granted liberty to Kejriwal to apply for regular bail. He duly applied for it before a special judge.

On June 20, 2024, Kejriwal was granted regular bail by the special judge in the ED case.

This bail Order was challenged by the ED before the high court, which stayed the bail on June 21, 2024 on an oral mention by the ED.

On June 24, 2024, the CBI moved an application before the special judge under Section 41A of the Code of Criminal Procedure (CrPC), seeking to interrogate Kejriwal, which was allowed.

Having completed the interrogation and examination, on June 25, 2024, the CBI sought permission to arrest Kejriwal. On June 25, 2024, the high court also passed a detailed Order staying the Order of the special judge granting bail to Kejriwal in the ED case.

On June 25, 2024, the CBI formally arrested Kejriwal. He challenged his arrest by the CBI in the Delhi High Court. He also sought bail from the high court.

On July 2, 2024, the high court issued notice on the petition challenging the arrest by the CBI and directed to list the matter on July 17.

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On July 5, 2024, the high court issued notice on the bail application and directed to list the matter on July 17. On July 17, the high court reserved the judgment on the petition challenging the arrest. The bail petition was directed to be listed on July 29, 2024.

On August 5, 2024, the Delhi High Court rejected the petition challenging the arrest. On the bail petition, the high court directed Kejriwal to approach the trial court.

Meanwhile, on July 12, 2024, a Supreme Court Bench headed by Justice Khanna granted interim bail to Kejriwal in the ED case. But Kejriwal continued to remain in jail after having been arrested by the CBI on June 26.

The core argument before the Supreme Court

Kejriwal challenged both the Orders of the Delhi High Court in the Supreme Court.

Senior advocate Abhishek Manu Singhvi, for Kejriwal, assailed the arrest on the ground that the procedure under Sections 41(1)(b)(ii) and 41A of the CrPC was not complied with.

Section 41A of the CrPC pertains to the issuance of a notice by a police officer to an individual when their arrest is not warranted under Section 41(1) of the CrPC, but their presence is still required before the investigating authority.

Clause (2) of Section 41A demands that an individual to whom such a notice has been issued complies with the same. Section 41A (3) bears out that an individual who complies and continues to comply with such notice is not to be arrested in respect of the offence mentioned, unless the police officer, for reasons to be recorded, deems it necessary to arrest them.

Section 41A(4) stipulates that if an individual fails to comply with the notice or refuses to identify themself, the police may arrest such an individual for the offence recorded in the notice, subject to any Orders passed by a competent court.

Justice Kant's Order

Justice Kant observed that Section 41A does not envisage or mandate the issuance of a notice to an individual already in judicial custody. As such, when a person is already under the court's authority, any request to include them in an investigation in another case must be approved by the competent court. He held that the CBI followed the procedure, which is contemplated in Section 41A of the CrPC.

Justice Kant cautioned that if Kejriwal's argument is accepted, it could lead to certain detrimental consequences. For instance, serving a notice upon an undertrial in jail through the jail superintendent, without informing the court that placed them in judicial custody, would effectively enable the police to arrest such individuals in a new case without the court's knowledge.

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"This could result in a misuse of police authority and a violation of the constitutional and procedural rights afforded to undertrials. Alternatively, when the court's permission is sought, it ensures the application of judicial scrutiny to assess whether custodial interrogation is necessary and, if so, for what duration," Justice Kant held.

Justice Kant thus held that in the present case, the trial court's approval of CBI's application to interrogate Kejriwal should be viewed as satisfying the essential requirements of Section 41A, as the issuance of a formal notice through the jail authorities would have had an adverse impact on the rights of the appellant.

With regard to Section 41A(3) of the CrPC, Justice Kant noted that this provision elucidates that an individual who complies with the notice issued under Section 41A should not be arrested, unless the police officer, for reasons recorded, opines that arrest is necessary.

"The vital takeaway from this provision is that while compliance with the notice generally shields an individual from arrest, the police may still proceed with the arrest if they conclude that it is essential and provide duly recorded reasons for doing so," Justice Kant observed.

Justice Kant offered three reasons to uphold the arrest of Kejriwal.

First, Justice Kant noted that it is trite law that there is no insurmountable hurdle in the conversion of judicial custody into police custody by an Order of a magistrate.

Thus, 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.

Second, Justice Kant observed 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. He referred to the application filed by the CBI on June 25, 2024 recording the reasons as to why they deemed Kejriwal's arrest necessary.

Third, Justice Kant observed that Section 41A(1), when read with Section 41A(3) of the CrPC, does not impose an absolute prohibition on the arrest of an individual against whom there exists reasonable suspicion of having committed a cognisable offence punishable with imprisonment up to seven years.

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"This is evident from the language of the provision itself. Section 41A(3) explicitly states that an arrest is permissible if the police officer believes it to be necessary and duly records the reasons for such arrest.

"This provision thus essentially carves out an exception to the general rule under Section 41A, which mandates that an individual whose appearance is required should not be arrested under Section 41(1) of the CrPC," Justice Kant said.

Justice Kant also held that there was no occasion for the arresting police officer to form an opinion regarding the existence of valid reasons for arrest.

"The competent court having undertaken such a task, the police officer cannot be expected to sit over the Order of the court," Justice Kant said.

Justice Kant also observed that Section 41(1) opens with the expression that "any police officer may arrest without an Order from a magistrate or without a warrant".

This, Justice Kant observed, necessarily means that where a magistrate has issued an Order, the police officer stands absolved from his statutory obligation of forming an opinion.

Though Justice Kant turned down the challenge to the arrest, he held that a case for the bail was made out. He noted that Kejriwal has been granted interim bail by the Supreme Court in the ED matter arising from the same set of facts.

Additionally, several co-accused in both the CBI and ED matters have also been granted bail by the trial court, the high court and the Supreme Court in separate proceedings.

On the argument of Additional Solicitor General (ASG) S.V. Raju that Kejriwal ought to have approached the trial court first for bail, not the high court, Justice Kant observed that 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.

But if there is a significant delay in relegating the accused to approach the trial court, then it will 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," Justice Kant said.

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On Kejriwal's case, Justice Kant noted that the high court did not relegate Kejriwal to the trial court at the preliminary stage.

"Since notice was issued and the parties were apparently heard on merits by the high court, we do not deem it necessary at this stage to relegate the appellant to the trial court even though filing of a chargesheet is a change in the circumstances," Justice Kant said.

Justice Bhuyan questions the timing of the arrest by the CBI

In his separate Order, Justice Bhuyan observed that the arrest of Kejriwal by the CBI raises more questions than it seeks to answer. He noted that the FIR was registered on August 17, 2022, but the CBI did not feel the necessity to arrest Kejriwal for 22 months.

Justice Bhuyan further observed that the CBI became active only when Kejriwal was granted regular bail by the special judge on June 26, 2024 which was stayed by the high court on an oral mention.

"It is evident that the CBI did not feel the need and necessity to arrest the appellant from August 17, 2022 till June 26, 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," Justice Bhuyan said.

"I fail to understand the great hurry and urgency on the part of the CBI to arrest the appellant when he was on the cusp of release in the ED case," Justice Bhuyan wrote.

Considering the timings of the arrest of Kejriwal, Justice Bhuyan observed that the CBI arrested Kejriwal only to frustrate the bail granted to him in the ED case.

The CBI claimed that Kejriwal was evasive during interrogation. Justice Bhuyan held that this could not satisfy the test of necessity to justify the arrest.

"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," Justice Bhuyan said.

Justice Bhuyan reminded the CBI of Article 20(3) of the Constitution, which states that no person accused of an offence shall be compelled to be a witness against himself.

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"An accused has the right to remain silent; he cannot be compelled to make inculpatory statements against himself. No adverse inference can be drawn from the silence of the accused," Justice Bhuyan held.

CBI must be seen to be above board

Commenting on the CBI, Justice Bhuyan said it is in the public interest that CBI must not only be above board but must also 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 emphasised that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India," Justice Bhuyan said.

Justice Bhuyan went on to add that in a functional democracy governed by the rule of law, perception matters.

"Like Caesar's wife, an investigating agency must be above board," Justice Bhuyan said.

Justice Bhuyan also reminded the CBI of the remark made by the Supreme Court not so long ago that it was a caged parrot.

"It is imperative that the CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot," Justice Bhuyan wrote.

Agreeing with Justice Kant on the grant of bail to Kejriwal, Justice Bhuyan also doubted the correctness of the bail condition imposed by a Bench headed by Justice Khanna in the ED case that Kejriwal will not sign any files and enter the Delhi Secretariat.

"Having regard to judicial discipline, I would refrain from further expressing my views thereon at this stage since those conditions have been imposed in the separate ED case by a two-judge Bench of this Court," Justice Bhuyan concluded.

Click here to read the order.