Whether Reasons Recorded By CBI To Arrest Kejriwal Met Legal Standards? A Critique Of Justice Surya Kant's Judgment

The Supreme Court's two-judge bench agreed that Delhi CM Arvind Kejriwal should be granted bail in the CBI's 'Liquor Policy Scam' case but framed separate opinions regarding the arrest's validity though upholding the same. Justice Surya Kant upheld the arrest, noting the CBI met procedural requirements under the Code of Criminal Procedure (Cr.P.C.). In contrast, Justice Ujjal Bhuyan questioned the timing of the arrest and supported Dr. Singhvi's (Kejriwal's counsel) view that the CBI's action was intended to prevent Kejriwal's release from a separate ED case.

This comment critiques Justice Surya Kant's judgment for upholding the arrest solely on procedural compliance with Section 41A of the CrPC while neglecting to properly consider the CBI's justification for the arrest, which was based on Kejriwal's evasive responses and lack of cooperation.

Justice Kant extensively examined Section 41A of the Cr.P.C., noting that while Section 41A (1) does not require formal notice if the accused is already in custody, the CBI's application for interrogation met this requirement. However, Section 41A (3) protects an accused who complies with Section 41A (1) from arrest unless the police have recorded reasons proving the necessity of arrest.

If Section 41A (1) is satisfied and the accused is present for interrogation, Section 41A (3) should prevent arrest unless the police have valid reasons to arrest. Justice Kant upheld the arrest, as the CBI cited Kejriwal's evasive replies and lack of cooperation as reasons for the arrest. Kant J. focused on whether Section 41A (3) was breached, without addressing the validity of the CBI's reasons for arrest. According to Kant J., because the CBI had recorded reasons, Section 41A (3) was considered satisfied, and the protective shield against arrest did not apply to Kejriwal despite his presence for interrogation.

Justice Kant upheld Kejriwal's arrest under Section 41A (3) of the Cr.P.C. but did not examine the CBI's reasons for the arrest. In contrast, Justice Bhuyan noted that the CBI could not justify the arrest based solely on Kejriwal's 'evasive replies' during interrogation. Bhuyan J. emphasized that cooperation with the investigation does not require the accused to provide answers desired by the agency and that an evasive reply alone does not warrant arrest or continued detention. Bhuyan J.'s stance is supported by a recent ruling in Tusharbhai Rajnikantbhai Shah v. State of Gujarat, where the court rejected the argument that refusal to cooperate justifies denying bail, affirming the accused's right to remain silent and avoid self-incrimination. The CBI's argument that Kejriwal didn't cooperate with the investigation lacks merit because an accused cannot be expected to confess or answer the question as indicated by the agency. The Court in Tusharbhai's case noted that “there would be no obligation upon the accused that on being interrogated, he must confess to the crime and only thereafter, would the Investigating Officer be satisfied that the accused has cooperated with the investigation.”

While Kant J. did not examine the trial court's decision to grant the CBI's arrest application based on its 'reasons to believe,' Justice Bhuyan's judgment highlighted critical issues regarding the timing and necessity of the arrest. In his 27-page judgment, Kant J. did not address these aspects. Bhuyan J. questioned why the CBI sought Kejriwal's arrest just as he was about to be released in the ED case, noting that the CBI had not deemed an arrest necessary for over 22 months. Bhuyan J. suggested that the arrest was intended to obstruct Kejriwal's bail in the ED case. It would have been valuable if Kant J. had also addressed these concerns. The Supreme Court, in my view, missed the chance to invalidate the arrest based on the inadequacy of the CBI's 'reasons to believe,' which did not meet legal standards.

(The author is a legal reporter for Live Law. He can be reached at yash@livelaw.in)