It is really very good to note that while taking a most balanced stand, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Arvind Kejriwal vs Central Bureau of Investigation in Criminal Appeal No. 3816/2024 (Arising out of Special Leave Petition (Crl.) No. 11023/2024) and connected case and cited in Neutral Citation No.: 2024 INSC 687 and so also in 2024 LiveLaw (SC) 694 that was pronounced as recently as on September 13, 2024 has ordered Delhi Chief Minister Arvind Kejriwal to be released on regular bail in a case that was registered by the Central Bureau of Investigation (CBI) pertaining to the now scrapped excise policy in Delhi liquor policy case. We need to definitely note that a Bench of Apex Court comprising of Hon’ble Mr Justice Surya Kant and Hon’ble Mr Justice Ujjal Bhuyan wrote separate concurring judgment on the two petitions that had been filed challenging his arrest and seeking bail in the CBI case. It may be recalled here that the Bench had heard the matter in detail and had then reserved the orders on September 5.
At the very outset, this notable judgment authored by Hon’ble Mr Justice Surya Kant sets the ball in motion by first and foremost putting forth in para 2 that, “These appeals are directed against the judgements and orders dated 05.08.2024 passed by the High Court of Delhi (hereinafter, ‘High Court’), dismissing the Appellant’s challenge to his arrest being illegal as well as his application for the grant of regular bail. Consequently, the High Court upheld the legality of the Appellant’s arrest and has summarily declined to exercise its concurrent jurisdiction under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), thereby denying his prayer for regular bail.”
To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case that, “At the very outset, it is essential to advert to the brief factual background to provide context to the manner in which the present proceedings have arisen.
3.1. The Appellant is a public representative and has been elected thrice the Chief Minister of the Government of National Capital Territory of Delhi (hereinafter ‘GNCTD’). He also happens to be the National Convenor of Aam Aadmi Party, a political party in India.
3.2. Central Bureau of Investigation (hereinafter ‘CBI’) – the Respondent registered an FIR No. RC0032022A0053 (hereinafter ‘FIR’), on 17.08.2022 under Sections 120B read with Section 477A of the Indian Penal Code, 1806 (hereinafter ‘IPC’) and Section 7 of the Prevention of Corruption Act, 1988 (hereinafter ‘PC Act’) against various persons. The FIR alleged irregularities, falsification, undue advantage, and a conspiracy among the persons holding positions of responsibility within the GNCTD, in framing and implementing the Excise Policy for the year 2021-2022 (hereinafter ‘Excise Policy’). However, the Appellant’s name did not figure in the FIR.
3.3. On 21.03.2024, the Directorate of Enforcement (hereinafter ‘ED’), arrested the Appellant in the purported exercise of its power under Section 19 of the Prevention of Money Laundering Act, 2002. Subsequently, this Court granted the Appellant interim bail on 10.05.2024, until 01.06.2024. The Appellant surrendered thereafter before the jail authorities on 02.06.2024. We may hasten to add here that the question of law sought to be raised in the ED matter is presently pending consideration before a larger bench of this Court and is not relevant to the present controversy, and its particulars are included solely to ensure lucidity in the factual matrix.
3.4. The Special Judge vide order dated 20.06.2024 granted the Appellant regular bail while his bail in the ED matter was pending before this Court and reserved for judgement. However, the ED swiftly sought the cancellation of that bail order. The High Court on 21.06.2024 stayed the operation of that order, as a result of which, the Appellant continued to remain in jail.
3.5. CBI moved an application on 24.06.2024 before the Special Judge (PC Act) (hereinafter ‘Trial Court’) under Section 41A of the CrPC, seeking to interrogate the Appellant, which was thereupon allowed. Having completed interrogation and examination, the CBI filed an application on 25.06.2024 seeking permission to arrest the Appellant and for the issuance of production warrants. Thereafter, the Trial Court allowed the CBI’s application noting that the accused was already in judicial custody in the ED matter. In the meantime, the High Court conclusively stayed the order granting regular bail to the Appellant in the ED matter on 25.06.2024 itself.
3.6. Shortly thereafter, on 26.06.2024, the Appellant was produced before the Trial Court, whereupon he was arrested in the instant CBI case and a copy of the arrest memo was handed over to the Appellant’s counsel. On the same day, on an application moved by the CBI, the Trial Court remanded the Appellant to police custody for five days. Subsequently, on 29.06.2024, the Trial Court remanded the Appellant to judicial custody till 12.07.2024. It may be noted that the investigation at that time was ongoing.
3.7. Both the above stated orders dated 26.06.2024 and 29.06.2024 of the Trial Court, came to be challenged by the Appellant before the High Court vide a Writ Petition, inter alia seeking a declaration that his arrest was illegal. On 02.07.2024, when the Petition was heard, the High Court issued notice to the CBI and scheduled the matter to be heard on 17.07.2024. In the interregnum, the Appellant also approached the High Court under Section 439 CrPC, seeking regular bail in connection with the subject FIR. On 05.07.2024, when the Bail Application came up for hearing, the High Court issued notice and re-notified it to be heard on 17.07.2024, along with the Writ Petition challenging the very arrest of the Appellant.
3.8. The High Court extensively heard the matter on 17.07.2024 and reserved judgement in the Writ Petition. The Bail Application was renotified for further hearing on 29.07.2024, which was also reserved. Finally, on 05.08.2024, the High Court vide the impugned judgement and order upheld the arrest of the Appellant by the CBI and congruously denied him regular bail, with liberty to approach the Trial Court for such relief.
3.9. As regard to the legality of the Appellant’s arrest, the High Court upheld the same on the following broad points: (i) The five circumstances delineated under Section 41(1)(b) of the CrPC apply only to arrests made without a warrant and does not pertain to arrests made under the aegis of Section 41(2) of the CrPC, which is an arrest upon the order of a court; (ii) The arrest was made in accordance with Section 41(2) of the CrPC; and (iii) The plea of non-compliance with Section 41A of the CrPC was totally unsubstantiated.
3.10. As regard to the Appellant’s prayer for regular bail, the High Court has denied the same for the following reasons: (i) The complexity of the facts and material on record necessitated a more comprehensive determination of the Appellant’s role in the alleged conspiracy so as to assess his entitlement to bail; and (ii) The Bail Application had been filed prior to the chargesheet being submitted, and since the chargesheet has now been filed before the Trial Court, the Appellant was directed to first approach the Court of the Sessions Judge.
3.11. Meanwhile, this Court vide order dated 12.07.2024, passed in Criminal Appeal No. 2493/2024 directed the Appellant’s release on interim bail in the ED matter.1 However, the Appellant continues to face incarceration on account of the proceedings initiated by the CBI.
3.12. The instant appeals are therefore restricted to the Appellant’s challenges regarding the legality and propriety of his arrest by the CBI and his prayer for release on regular bail in connection with the proceedings initiated by the CBI via the subject FIR.”
Do note, the Bench notes in para 23 that, “In the case in hand, the Trial Court’s approval of the CBI’s application to interrogate the Appellant 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. Thus, it is our considered view that the CBI complied with the procedure encompassed within the framework of Section 41A of the CrPC.”
Be it noted, the Bench notes in para 36 that, “Having considered the CBI’s compliance with Section 41A of the CrPC and the inapplicability of Section 41(1)(b)(ii) of the CrPC, we are thus of the view that the Appellant’s arrest does not suffer with any procedural infirmity. Consequently, the plea regarding non-compliance of these provisions, merits rejection. Ordered accordingly.”
It is worth noting that the Bench notes in para 40 that, “In our considered view, although the procedure for the Appellant’s arrest meets the requisite criteria for legality and compliance, continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant’s right to liberty, traceable to Article 21 of our Constitution. The Appellant has been granted interim bail by this Court in the ED matter on 10.05.2024 and 12.07.2024, 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 this Court in separate proceedings.”
It would be worthwhile to also note that the Bench notes in para 41 that, “So far as the apprehension of the Appellant influencing the outcome of the trial is concerned, it seems that all evidence and material relevant to the CBI’s disposition is already in their possession, negating the likelihood of tampering by the Appellant. Similarly, given the Appellant’s position and his roots in the society, there seems to be no valid reason to entertain the apprehension of his fleeing the country. In any case, in order to assuage the apprehensions of the CBI, we may impose stricter bail conditions. As regard to Appellant indulging in influencing witnesses, it needs no emphasis that in the event of any such instance, it will amount to misuse of the concession of bail and necessary consequences will follow.”
It cannot be lost sight of that while delivering a separate concurring judgment, the Single Judge Bench comprising of Hon’ble Mr Justice Ujjal Bhuyan points out in para 25 of his judgment that, “We should not forget the cardinal principle under Article 20(3) of the Constitution of India that no person accused of an offence shall be compelled to be a witness against himself. This Court has held that such a protection is available to a person accused of an offence not merely with respect to the evidence that may be given in the court in the course of the trial, but is also available to the accused at a previous stage if an accusation has been made against him which might in the normal course result in his prosecution. Thus, the protection is available to a person against whom a formal accusation has been made, though the actual trial may not have commenced and if such an accusation relates to the commission of an offence which in the normal course may result in prosecution. 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. If this is the position, then the very grounds given for arrest of the appellant would be wholly untenable. On such grounds, it would be a travesty of justice to keep the appellant in further detention in the CBI case, more so, when he has already been granted bail on the same set of allegations under the more stringent provisions of PMLA.”
Further, the Bench observes in para 26 that, “That apart, the apprehension of tampering with the evidence or influencing witnesses has already been answered by this Court in the case of Manish Sisodia in the following manner: 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.”
It would be pertinent to note that the Bench notes in para 27 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 should arrest such a person. In Joginder Kumar Vs. State of U.P. (1994) 4 SCC 260, a three-Judge bench of this Court examined the interplay of investigation and arrest. Referring to the third report of the National Police Commission, this Court declared that no arrest can be made just because it is lawful for police officers to do so. The existence of the power of arrest is one thing but justification for the exercise of it is quite another. It was held as under:
20. …….No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
While referring to another relevant case law, the Bench then observes in para 28 that, “In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi) (2010) 6 SCC 1, this Court emphasized that investigation must be fair and effective. 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.”
While citing yet another relevant case law, the Bench states in para 29 that, “This Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273, while examining the provisions of Sections 41 and 41A Cr.P.C. observed that arrest brings humiliation, curtails freedom and cast scars forever. This Court, while emphasizing the need to sensitize the police against high-handed arrest, deprecated the attitude to arrest first and then to proceed with the rest. While emphasizing that police officers should not arrest the accused unnecessarily and that the Magistrate should not authorize detention casually and mechanically, this Court observed as follows:
5. Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”
To be sure, the Bench further mentions in para 30 that, “Again in the case of Mohd. Zubair Vs. State (NCT of Delhi) (2022) SCC Online SC 897, a three-Judge Bench of this Court once again 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. This Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment. Referring to its earlier decision in Arnab Ranjan Goswami Vs. Union of India (2020) 14 SCC 12, this Court observed that the courts should be alive to both ends of the spectrum: the need to ensure 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 hand. 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.”
Most intriguingly, the Bench wonders aloud in para 31 stating that, “When the CBI did not feel the necessity to arrest the appellant for 22 long months, 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. The substantive charge against the appellant is under Section 477A IPC which deals with falsification of accounts and if convicted carries a punishment of imprisonment for a term which may extend to seven years or with fine or with both. The appellant has also been charged under Section 7 of the PC Act which deals with offence relating to a public servant being bribed. Here the punishment, if convicted, is imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Without entering into the semantics of applicability of Section 41(1)(b)(ii) and Section 41A Cr.P.C. as explained by this Court in Arnesh Kumar (supra), timing of the arrest of the appellant by the CBI is quite suspect.”
Most remarkably, the Bench rightly propounds in para 32 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.”
Most forthrightly, the Bench enjoins in para 33 while recalling and holding that, “In a functional democracy governed by the rule of law, perception matters. Like Caesar’s wife, an investigating agency must be above board. 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.”
Most sagaciously, the Bench expounds in para 38 that, “This Court in Gudikanti Narasimhulu Vs. Public Prosecutor (1978) 1 SCC 240, had highlighted that bail is not to be withheld as a punishment. The requirement as to bail is merely to secure the attendance of the prisoner at trial. This Court in Manish Sisodia referred to and relied upon the aforesaid decision and reiterated the salutary principle that bail is the rule and jail is the exception. This Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts. It has been held as under:
53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.”
Quite forthrightly, the Bench postulates in para 39 that, “Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and jail is the exception. As such, the courts at all levels must ensure that the process leading to and including the trial does not end up becoming the punishment itself.”
More to the point, the Bench further directs in para 40 that, “This Court has emphasized and re-emphasized time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution.”
As a corollary, the Bench holds in para 41 that, “That being the position and having regard to the discussions made above, I am of the unhesitant view that the belated arrest of the appellant by the CBI is unjustified and the continued incarceration of the appellant in the CBI case that followed such arrest has become untenable.”
Resultantly, the Bench further directs in para 42 that, “That being the position and having regard to the discussions made above, I am of the unhesitant view that the belated arrest of the appellant by the CBI is unjustified and the continued incarceration of the appellant in the CBI case that followed such arrest has become untenable.”
In addition, the Bench then further directs in para 43 postulating that, “Consequently, it is directed that the appellant shall be released on bail forthwith in the CBI case i.e. RC No. 0032022A0053 dated 17.08.2022. In so far bail conditions are concerned, this Court in the ED case i.e. in Criminal Appeal No. 2493 of 2024 has imposed several terms and conditions including clauses (b) and (c) vide the orders dated 10.05.2024 and 12.07.2024 which have been incorporated in clause (d) of paragraph 47(ii) of the judgment delivered by Justice Surya Kant. Though I have serious reservations on clauses (b) and (c) which debars the appellant from entering the office of Chief Minister and the Delhi Secretariat as well as from signing files, 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.”
Finally, the Bench then concludes by holding in para 44 that, “Both the appeals are accordingly disposed of.”
In conclusion, we thus see that the Supreme Court very rightly granted bail to Mr Arvind Kejriwal who is Chief Minister of Delhi. It is high time and CBI must pay heed to what the Apex Court has laid down in this leading case and act as directed. It thus merits no reiteration that the High Courts and so also the Trial Courts must also abide by what the top court has laid down in this leading case and unfailingly adhere to the time tested dictum of “Bail is the rule and jail is the exception”! No denying it!
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