The Supreme Court today granted bail to Delhi Chief Minister Arvind Kejriwal in connection with the Central Bureau of Investigation (CBI) FIR registered in the Delhi liquor policy case.
A bench of Justices Surya Kant and Ujjal Bhuyan pronounced verdict on two petitions filed by the Aam Aadmi party chief challenging his arrest and seeking bail in the CBI case. It had heard the matter and reserved orders on September 5.
Both the judges delivered separate judgments.
Arrest is legal : Justice Surya Kant
Justice Kant held that Kejriwal's arrest was legal and did not suffer from any procedural irregularity. There is no merit in the contention that the CBI failed to comply with the mandate of Section 41/41A of the Code of Criminal Procedure while arresting him, the judge said.
At the same time, both the judges were unanimous in the decision to grant bail to Kejriwal considering the fact that the chargesheet has been filed in the case and that the trial is unlikely to be completed in the near future. Kejriwal's continued incarceration would infringe upon the right to personal liberty under Article 21, the Court said.
"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," observed Justice Kant.
It was added that the same conditions, as imposed on Kejriwal by the coordinate bench (while granting interim bail in the ED case), will apply in this case too. That means Kejriwal cannot visit the office of the Chief Minister and Delhi Secretariat, or sign official files, unless it is required and necessary for obtaining clearance/approval of the Lieutenant Governor of Delhi.
Justice Bhuyan questions the CBI arrest
While Justice Kant upheld the arrest, Justice Bhuyan had a differing view regarding the necessity and timing of Kejriwal's arrest.
Remarking that CBI's arrest raised more questions than it sought to answer, Justice Bhuyan noted that CBI did not arrest Kejriwal for over 22 months and arrested him on the cusp of his release in the ED case.
"As already noted above, CBI case was registered on 17.08.2022. Till the arrest of the appellant by the ED on 21.03.2024, CBI did not feel the necessity to arrest the appellant though it had interrogated him about a year back on 16.04.2023.
It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024
Thus, it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 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. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case."
Justice Bhuyan further observed that since Kejriwal has already got bail in the money laundering case, despite the stringent conditions under the Prevention of Money Laundering Act (PMLA), his further detention in the predicate offence (CBI case under the Prevention of Corruption Act) has become untenable. It is a travesty of justice to keep the appellant in custody on these grounds, especially as he has been granted bail in a more stringent PMLA case, the judge said.
"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...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."
Justice Bhuyan also expressed reservations about the bail condition that Kejriwal should not visit the CM's office or the Delhi Secretariat. However, he chose not to pass any direction in that regard having regard to judicial discipline and reverence for a direction passed by a coordinate bench.
The judge also reminded the CBI of its duty to ensure that its investigations are fair.
"CBI is a premier investigating agency. It's in public interest that CBI must not only be above board but must also be seen to be so. Every.effort must be made to remove any perception that investigation is not carried out fairly and that the arrest was made in a high-handed and biased manner. In a functional democracy governed by the rule of law, perception matters. Like Caeser'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 the CBI dispels the notion of being a caged parrot, rather the perception should be that of an uncaged parrot," Justice Bhuyan said.
However, both Justices Kant and Bhuyan dismissed Kejriwal's petition challenging the CBI arrest.
Background
Kejriwal's present petition challenged the Delhi High Court order of August 5, whereby his plea against CBI arrest was dismissed by a Single Judge bench with liberty to approach the trial Court for bail. He had also filed another special leave petition challenging the High Court's refusal to consider his bail plea.
The AAP chief was formally arrested by CBI on June 26, 2024, while he was in custody of the Enforcement Directorate in the money laundering case arising out of the alleged liquor policy scam.
Weeks later, on July 12, the Supreme Court granted Kejriwal interim bail in the money laundering case, while referring his petition challenging ED arrest to a larger bench. However, he continued to remain in custody (which commenced on March 21) due to his arrest by the CBI.
For a detailed background and earlier proceedings, click here.
It is apposite to mention that other co-accused in the liquor policy case, viz. Manish Sisodia, K Kavitha, Vijay Nair and Sanjay Singh were granted bail by the Supreme Court this year. The Delhi High Court also recently granted bail to Sameer Mahendru, Chanpreet Singh and Arun Pillai.
Appearance: Senior Advocates Dr Abhishek Manu Singhvi, N Hariharan and Vikram Chaudhri, alongwith AoR Vivek Jain (for Kejriwal); Additional Solicitor General SV Raju, alongwith Advocate Zoheb Hussain (for CBI)
Other reports about the judgment can be read here.
Case Title: Arvind Kejriwal v. Central Bureau of Investigation, SLP(Crl) No. 11023/2024 (and connected case)
Citation : 2024 LiveLaw (SC) 694
Click here to read the judgment