Supreme Court grants bail to Arvind Kejriwal in CBI case; bench splits over the validity of arrest

Today, a Division Bench of Justices Surya Kant and Ujjal Bhuyan granted bail to Delhi Chief Minister Arvind Kejriwal  79 days after his arrest  by the Central Bureau of Investigation (CBI) in the Delhi liquor policy case. The bench attached various bail conditions, including a bail bond of ten lakh rupees, and prohibiting Kejriwal from making public comments about the CBI arrest.

While agreeing unanimously that the Chief Minister should be released, the two  judges disagreed and delivered a split verdict of the question of the validity of CBI’s arrest. Justice Kant observed that the arrest conformed with the criteria for necessity of arrest under Section 41 of the Code of Criminal Procedure 1973.  Justice Bhuyan raised doubts on the timing of the arrest. 

Notably,  Kejriwal was arrested by the CBI under the Prevention of Corruption Act on 26 June 2024 within days of receiving a favourable bail order by a trial court  in the ongoing money laundering case investigated by the Enforcement Directorate (ED). The Delhi High Court had stayed the bail order and the Supreme Court was all set to hear an appeal against it on 26 June. 

Kejriwal has been in the Tihar jail since his first arrest by the ED on 21 March 2024, except for a brief release in May 2024, when he was granted interim bail in the run up to the General Elections. The same bench granted interim bail to Kejriwal in the ED arrest on 12 July 2024 and referred the question of “need and necessity” of arrest under Prevention of Money Laundering Act, 2002 to a larger bench. But Kejriwal remained in prison due to the CBI arrest.

On 14 August 2024, the Court refused interim bail to the AAP leader in the CBI arrest even as Senior Advocate Abhishek Manu Singhvi pressed that the CBI arrest was nothing but an “insurance arrest.” 

The arguments in his bail plea were heard over a day on 5 September 2024. Singhvi contended that CBI had shown no interest to arrest Kejriwal (despite having filed the First Information Report two years ago) until he received two favourable bail orders – by the top Court in the ED case, and a bail order by a trial court. Counsels had argued on the validity of CBI’s arrest and whether it conformed to Section 41 of the CrPC. Under Section 41(1)(b)(ii)(b), (c) and (d), an arrest without warrant can only be made for the purpose of proper investigation of an offence, and preventing evidence tampering and witness inducing. Singhvi had claimed that CBI’s reasoning that the arrest was due to Kejriwal’s non-cooperation and intention to derail the investigation were not valid grounds. 

Additional Solicitor General S.V. Raju had countered that the CBI’s grounds of arrest were compatible with Section 41. He also submitted that Kejriwal approached the High Court with the intention to secure bail before the charge sheet was filed, which establishes prima facie guilt. To this Singhvi had countered that no person would ever get bail until the charge sheet was filed. The prosecution could freely delay filing the charge sheet. 

Court: Prolonged incarceration is an unjust deprivation of liberty, bail allowed

As first order of business, Justice Kant laid out the three issues before the bench:

1. Whether Kejriwal’s arrest by the CBI was valid?
2. Whether Kejriwal, regardless of his lawful arrest, was entitled to be allowed on bail?
3. Whether Kejriwal should be relegated to a trial court as he filed for bail before the filing of a charge sheet?

Justice Kant explained that prolonged incarceration of an accused pending trial amounted to an unjust deprivation of liberty. He harked to the Supreme Court’s decision in Union of India v K.A. Najeeb (2021), a case on the Unlawful Activities Prevention Act, 1967, where the Court noted  that the legislative policy against grant of bail “will melt down” if it is unlikely that the trial will conclude in a reasonable time. Notably, this was one of the grounds of bail for Manish Sisodia, former Deputy Chief Minister of Delhi, who was arrested by the CBI and ED in the same case as Kejriwal. K.A. Najeeb stated that Courts should take a flexible approach towards the undertrial, unless the undertrial is “likely to shatter societal aspirations, derail the trial or deface the very criminal justice system which is integral to rule of law.” Singhvi, last week, had argued that Kejriwal satisfied the triple test for bail under CrPC i.e. not a flight risk, will not influence witnesses and tamper evidence.

Justice Kant noted that four supplementary chargesheets (the last filed on 29 July 2024) were filed in the case since the registration of FIR in August 2022.  Further, the CBI had identified 17 accused persons and 224 witnesses, and submitted “extensive” physical and digital documents.  All of this suggested that the trial was unlikely to conclude in the immediate future. Justice Kant also dismissed CBI’s plea that Kejriwal may tamper with evidence or influence witnesses.

Justice Kant attached some bail conditions:

1. A bail bond of Rs 10 lakh with two sureties.
2. Kejriwal shall not make any public comments on the merits of the CBI case. Justice Kant noted that the Court has started including conditions like this to dissuade recent phenomena of “self-serving” narratives on public platforms. Kejriwal can raise any contention freely before the trial court.
3. The bail conditions imposed by the coordinate bench in the ED case will apply in this case also. This means that Kejriwal cannot enter the office of the Delhi Chief Minister and sign any official files in his capacity as the Chief Minister.
4. Kejriwal must be present on every day of hearing before the trial court, and “fully cooperate” in expeditious conclusion of the trial unless granted exemption.

Justice Bhuyan: “Serious objections” against bail condition that Kejriwal cannot visit CMO

Justice Bhuyan stated that he had “serious reservations” against two bail conditions imposed by the coordinate bench in the ED judgement.  The two bail conditions  prohibited Kejriwal from visiting the Chief Minister’s office and Delhi Secretariat, and  prevented him  from signing official files.  Keeping in mind “judicial discipline”, he said that  he would refrain from expressing further views against them. This means that bail conditions of the ED order would apply in the CBI case also, despite Justice Bhuyan’s reservations.

Justice Kant: Not necessary to relegate Kejriwal to trail court for bail

Justice Kant observed that principally, the bench agrees that filing a chargesheet leads to a “decisive change in circumstances.” However, in this case, the High Court did not relegate Kejriwal to trial court at the preliminary stage and after notice was issued, parties were heard on merits by the High Court. Thus, the bench did not find it necessary to relegate the bail matter to the trial court.

Justice Kant: Arrest does not suffer from procedural deformity

Justice Kant noted that while the judgement goes into extensive discussion on Section 41, he would be focussing on whether Section 41A(3) of CrPC was violated by CBI, rendering the arrest illegal. Section 41A states that for cases where arrest is not required, a notice of appearance is to be issued by the police. Section 41A(3) notes that the accused generally can never be arrested when he is complying with the notice of appearance. However, if the police develop an opinion that the arrest is necessary, they can record their reasons in writing and make the arrest. 

According to Singhvi, Section 41A only applies to cases where the police do not come with a pre-formed intent to arrest. He had further contended that Kejriwal was never shown an application to interrogate, and was arrested within a day of interrogation. Additional Solicitor General S.V. Raju, for the CBI, had argued that a notice or application was unnecessary for instances where the accused was already in custody. It was a “deemed notice”, he had stated. 

Justice Kant observed that it was enough that CBI in their application had recorded the reason for the necessity of arrest so there is no violation of Section 41A(3).

He further relied on CBI v Anupam J Kulkarni (1992) to hold that there was no “impediment” to Kejriwal’s arrest for the purpose of investigation even if he was already under custody for the same or different offence.  

He concluded that Sections 41 and 41A do not absolutely prohibit arrest of a person who is charged with an offence that carries a 7 year imprisonment sentence, and thus he did not agree with Kejriwal’s counsels that CBI had failed to comply with Section 41A.

Finally, he noted that Section 41(1) explained that where a magistrate has issued a warrant, the police officer is absolved of the statutory obligation of “forming an opinion”. Because of this, the “variables and conditions ensconced”  in Section 41(1)(b)(ii) (that the police officer be satisfied with the necessity of arrest) did not apply in the case. Overall, Justice Kant held that CBI had complied with Section 41A, and the criteria for necessity of arrest did not apply to the case.

But Justice Bhuyan had a different view.

Justice Bhuyan: View may be taken that CBI’s arrest was to frustrate bail in ED matter

Justice Bhuyan, disagreeing with Justice Kant,  observed that CBI’s arrest “raises more questions than it seeks answers.” He noted that it was evident that CBI did not feel the need and necessity to arrest Kejriwal for over 22 months, right until he was granted regular bail by the special judge in the ED case in June 2024. Only after that the CBI “activated its machinery and took the appellant into custody.”

Justice Bhuyan remarked that the timing raised a “serious question mark”, and it may just be that the CBI’s arrest was only intended to frustrate the bail granted to Kejriwal in the ED case. He further disagreed with CBI’s contention that Kejriwal’s non-cooperation in the investigation was a ground for arrest. “It cannot be the proposition,“ he declared, “that only when an accused answers the questions put to him by an investigating 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 that Kejriwal had a right to remain silent, and no adverse inference could be drawn from his silence. This was right up the alley of Singhvi’s argument that the CBI’s claims of non-cooperation would not stand as CBI would not settle for anything less than a confession.

Justice Bhuyan recalled the decision in Mohd. Zubair v State (NCT of Delhi) (2022) to note that the exercise of the power of arrest should be used sparingly.  In Zubair, the Court had noted that courts must ensure that investigations do not become “tool of harassment.”

Justice Bhuyan also recalled Arnab Ranjan Goswami v Union of India (2020), where the Court had held that both ends of the spectrum should be aligned – ensuring proper enforcement of criminal law, while also ensuring that law does not become a ruse for targeted harassment.

He relied on Kanumuri Raghurama Krishnam Raju v State of A.P. (2021) to note that since Kejriwal had been granted bail under the more stringent provisions of PMLA, further detention by the CBI for the same predicate offence was “wholly untenable.” He thus concluded that the CBI’s arrest was “unjustified”.

 Justice Bhuyan: CBI’s perception should be that of an uncaged parrot

While concluding, Justice Bhuyan expressed his displeasure with the CBI’s conduct in the case. He noted that the CBI, the premier investigating agency, must make every effort to remove any doubt on the fairness of the investigation or that the arrest was biased and made in a “high-handed” manner. It recalled that the Court had “castigated” CBI previously, comparing it to a “caged parrot.” CBI must dispel that notion, and should seek to be perceived as an “uncaged parrot,” he said.