Arvind Kejriwal’s bail in CBI case | Judgement Summary

On 13 September 2024, a Division Bench of Justices Surya Kant and Ujjal Bhuyan granted interim bail to former Delhi Chief Minister Arvind Kejriwal. Kejriwal had been arrested by the Central Bureau of Investigation (CBI) under the Prevention of Corruption Act (PCA), 1988 for his alleged involvement in the Delhi Liquor Policy scam. He was accused under Section 7 of the PCA which deals with public servants accepting bribes. The maximum imprisonment under the provision is seven years. He was also charged for criminal conspiracy (Section 120B) and falsification of accounts (Section 477A) under the Indian Penal Code, 1860.

The CBI had arrested Kejriwal on 26 June 2024, one day after the Delhi High Court had stayed a trial court decision granting bail to Kejriwal in the Enforcement Directorate’s money laundering case against him in connection with the same scam. The CBI’s arrest came on the same day that his appeal against the Delhi High Court’s decision was listed in the Supreme Court.

Senior Advocate Abhishek Manu Singhvi, who appeared for Kejriwal, described the CBI’s move as an “insurance arrest”, implying that the Union Government wanted to keep him imprisoned at any cost. Singhvi argued that the oldest First Information Report (FIR) in the CBI’s investigation of the liquor policy scam, which was filed in August 2022, did not mention Kejriwal so there was no reason to arrest him after two years. 

After being arrested on 26 June, Kejriwal had petitioned the Delhi High Court with a bail application and a plea challenging arrest. On 5 August 2024, the High Court upheld the arrest and denied him bail. It observed that the arrest was carried out under an order of a magistrate under Section 41(2) of the Code of Criminal Procedure, 1973 and that he should approach the trial court for bail. 

The Supreme Court heard arguments for a day and reserved judgement on 5 September. A week later, the bench of Justices Kant and Bhuyan pronounced their decision—the judges unanimously agreed to grant Kejriwal bail but were split on the validity of the arrest. 

Kejriwal’s arguments and the CBI’s response

At the outset, Singvhi argued that the High Court misapplied Section 41(2) of the CrPC to uphold Kejriwal’s arrest. He stated that the provision was only applicable to non-cognisable offences and Kejriwal was arrested for a cognisable one. According to Singhvi, the Court referred to Section 41(2) to validate the CBI’s illegal arrest of Kejriwal under Section 41(1)(b)(ii). 

On the procedural front, Singhvi also contended that Kejriwal’s arrest violated Section 41A of the CrPC. Under Section 41A, a notice is sent to a person for their appearance. The notice, he stated, was only sent in instances where the police officer does not intend to arrest the person. Under Section 41A(3), a notice of appearance can be converted into an arrest only if the police officer has sufficient reasons to make the arrests. Singhvi argued that not only was a notice for appearance not shared with Kejriwal, the investigating authority did not even record their reasons for arresting him. 

On the aspect of bail, Singhvi contended that Kejriwal had been incarcerated for a long time. He also relied on the fact that Kejriwal had favourable bail orders under the Prevention of Money Laundering Act, 2002, a legislation that imposes stringent conditions for bail. He submitted that the criteria for the bail ‘triple test’ were satisfied by Kejriwal: he had no antecedents, he was not a flight risk, and posed no threat of tampering with the witnesses or with evidence. Singhvi also argued that the trial in the liquor policy case was unlikely to conclude in the near future. 

Additional Solicitor General S.V. Raju, on behalf of the CBI, argued that arrest was essential to “unearth a larger conspiracy” in the liquor policy case. He contended that the guidelines for arrest under Sections 41(1)(b)(ii) and 41A were complied with. A notice for appearance was unnecessary under Section 41A as Kejriwal was already in custody. It would have been an “empty formality.” The trial court had granted permission to the CBI to interrogate and arrest Kejriwal if necessary. 

Opposing bail, Raju contended that Kejriwal was in a position of influence and could intimidate witnesses if he was released. Further, he argued that Kejriwal was seeking special treatment from the higher judiciary and the appropriate forum to apply for bail would be the trial court. Lastly, he claimed that Kejriwal intentionally applied for bail before the latest chargesheet was filed because the details revealed in the chargesheet would get in the way of bail. 

On the validity of arrest 

Justice Kant: The CBI followed due procedure for arrest under Section 41A. As there is no detailed procedure under the provision for instances when an accused is already in custody, the only option for the CBI was to approach a competent court for permission. Serving notice without “informing the trial court that placed them in judicial custody” would essentially “enable the police to arrest such individuals in a new case without the court’s knowledge.” 

On the aspect of Section 41A(3), the CBI had recorded reasons in writing and shared them with the trial court while seeking his custody. These reasons were added to the arrest memo of Kejriwal. Further, an arrest under Section 41A(3) is permissible if the “police officer believes it to be necessary”. Section 41(1)(b)(ii) was not applicable in Kejriwal’s case as the CBI arrested Kejriwal after being granted permission by a trial court. Thus, Kejriwal’s arrest did not “suffer with any procedural infirmity.” 

Justice Bhuyan: Kejriwal’s arrest by the CBI “raised more questions than it seeks to answer.” Based on the FIR registered in 2022, the CBI had interrogated Kejriwal in April 2023. The CBI “became active and sought for custody” only after a special judge granted him bail in the ED case in June 2024. The CBI had not named Kejriwal as an accused until the last chargesheet filed on 29 July 2024. Therefore, the “CBI did not feel the need and necessity to arrest…for over 22 months.” 

The grounds for arrest also do not satisfy the “test of necessity to justify arrest.” The reasoning that Kejriwal gave “evasive” replies cannot be a justification. The proposition cannot be that “only when an accused answers the questions…in the manner in which the investigating agency would like the accused to answer, would mean that the accused is cooperating with the investigation.” Under Article 20(3), an accused cannot be compelled to be a witness against themselves. It would be a “travesty of justice” if an accused is detained because they were silent or evasive.

The power to arrest must be exercised sparingly. A premier investigative agency like the CBI must “not only be above board but must also be seem to be so.” Fair investigation is a fundamental right of an accused person, so efforts must be made to remove “any perception that investigation was not carried out fairly.” It is important that CBI “dispel the notion of it being a caged parrot.” 

On the aspect of bail 

Justice Kant: Continued imprisonment “for an extended period pending trial would infringe upon established legal principles” and violate Kejriwal’s right to liberty under Article 21. The FIR in the case was first registered in August 2022 and four supplementary chargesheets had been filed. There were 17 accused persons, 224 witnesses, and extensive physical and digital documents. “These factors suggest that the completion of the trial is unlikely to occur in the immediate future.” 

Further, Kejriwal had received bail in the ED matter in May (for three weeks) and July 2024 by the Supreme Court. Moreover, several co-accused in the CBI and ED cases were out on bail. All material evidence was in the possession of the CBI, therefore, there was little likelihood of tampering by Kejriwal. He was not a flight risk considering his “position and his roots in the society.” 

There is “no straitjacket formula” which dictates that every case concerning bail should depend on filing of chargesheet. An accused can apply or bail before a chargesheet is filed. As much as an undertrial is expected to ordinarily approach a trial court for bail, the High Court did not send Kejriwal to a trial court at the initial stages of the hearing. As the High Court had heard arguments on merits in Kejriwal’s case, it was not necessary for the Supreme Court to direct him back to the trial court. 

Therefore, Kejriwal will be released on the following conditions: 

1. He will furnish bail bonds of Rs. 10,00,000/- with two sureties. 
2. He cannot make any public comments on the merits of the CBI case. This was necessary to prevent the “recent tendency of building a self-serving narrative on public platforms” 
3. The bail conditions imposed by the Supreme Court in the ED case would also apply 
4. Kejriwal has to remain present on each date of hearing when the trial begins in the trial court. 
5. Kejriwal has to cooperate with the trial court for “expeditious conclusion of the trial proceedings.” 

Justice Bhuyan: Further detention by the CBI was “wholly untenable” when Kejriwal was granted bail under the stringent provisions of the PMLA. Directing Kejriwal to approach the trial court for bail, followed by the High Court and then Supreme Court, would make him take the same route as he did in the PMLA case. This “would be nothing but a case of procedure triumphing the cause of justice.” 

Personal liberty is sacrosanct and the trial courts and high courts should remain “adequately alert” to protect it. There are “serious reservations” for the bail conditions imposed by the Supreme Court bench in the ED case as it bars Kejriwal from entering the office of the Chief Minister. However, the reservations will not be elaborated as the conditions were imposed in a separate case.