'Don't Say Grant Of Bail Will Demoralise HC' : Supreme Court To CBI While Reserving Judgment On Arvind Kejriwal's Bail Plea

The Supreme Court on Thursday (September 5) reserved judgment on the petitions filed by Delhi Chief Minister Arvind Kejriwal challenging his arrest and seeking bail in the case registered by the CBI over the alleged Delhi Liquor Policy scam.

A bench of Justices Surya Kant and Ujjal Bhuyan heard the matter the whole day.

Kejriwal's petition before the Supreme Court 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 also filed another Special Leave Petition challenging the High Court's refusal to consider his bail plea.

At one stage in today's hearing before the Supreme Court, Additional Solicitor General SV Raju, appearing for the Central Bureau of Investigation, submitted that grant of bail to Kejriwal would amount to demoralizing the High Court. However, Justice Bhuyan expressed disagreement with this submission and said, "Don't say that".

Kejriwal's arguments

Senior Advocate Dr Abhishek Manu Singhvi, for Kejriwal, submitted that he got release orders on three occasions in the money laundering case despite the stringent rigors of Section 45 of the Prevention of Money Laundering Act [Ref: the interim bail orders passed by the Supreme Court on May 10 and July 12, and the regular bail order passed by the trial court on June 20 (which the High Court stayed)].

Singhvi also said that Kejriwal satisfies the "triple test" for grant of bail. "Triple test is based on the presumption of innocence. The ultimate object is to secure presence. You should not be a flight risk. A man who is a constitutional functionary cannot be a flight risk" he submitted. Further, it was urged that the evidence in the case is documentary in nature and has already been collected; hence there is no risk of tampering with evidence.

Challenge to arrest

Singhvi also raised arguments challenging the validity of the arrest by the CBI. He submitted that the CBI first moved an application before the trial Court seeking permission to interrogate Kejriwal, while he was in judicial custody in the ED case. However, this application was not served on him.

The senior counsel further submitted that the arrest was not preceded by a notice under Section 41A of the Code of Criminal Procedure.

Interjecting, ASG Raju said that a notice under Section 41A was not required as Kejriwal was already under custody. He remarked that the argument was a mere "technicality". Strongly objecting to the same, Singhvi replied, "matters of liberty cannot be a technicality...what I am referring to are procedural safeguards". Elaborating, he submitted that no reasons for arrest were given as mandated by Section 41 CrPC.

"Imminence of me committing further offence was minus, not zero. I was found fit for release by the Supreme Court two times!" Singhvi said further, arguing that none of the grounds for arrest specified under clauses (a) to (e) of Section 41(1)(b)(ii) were attracted in the case. Reference was made to the Arnesh Kumar judgment in this regard.

The senior counsel also highlighted that the trial court itself, while upholding the legality of the arrest, had observed that the timing of the arrest was circumspect.

CBI raises preliminary objection to bail

ASG Raju raised a preliminary objection to Singhvi raising arguments for bail, saying that Kejriwal should approach the trial court first. In this regard, Singhvi contended that the High Court has concurrent jurisdiction. "You can't send me back to trial court, which has considered the same thing," he said.

"Probably your point is that it would be an exercise in futility," observed Kant J. Agreeing, Singhvi added, "It's not a fair argument to raise by CBI at this stage. Except if delay is sought".

The senior counsel further relied on the "snakes and ladders" phrase used by the Supreme Court in the Manish Sisodia case and quoted from the judgment as follows :

"Now, relegating the appellant to again approach the trial court and thereafter the High Court and only thereafter this Court, in our view, would be making him play a game of “Snake and Ladder”. The trial court and the High Court have already taken a view and in our view relegating the appellant again to the trial court and the High Court would be an empty formality. In a matter pertaining to the life and liberty of a citizen which is one of the most sacrosanct rights guaranteed by the Constitution, a citizen cannot be made to run from pillar to post."

He also relied on the finding made by the Supreme Court in the Manish Sisodia judgment that the trial in the liquor policy case is unlikely to conclude in the near future. Reliance was further placed on a recent order granting bail to co-accused Vijay Nair in the money laundering case, particularly the observation made by the Court in that case that pre-trial incarceration cannot be a mode of punishment.

CBI distinguishes orders granting bail to co-accused

ASG Raju submitted that the co-accused who got bail from the Supreme Court -  K Kavitha, Manish Sisodia, Sanjay Singh, etc.- had approached the trial court, however, Kejriwal has never approached the trial court for bail (in the CBI case). Several courts have taken the view that as far as concurrent jurisdiction is concerned, trial court should be approached first, ASG submitted, citing various precedents.

The ASG further stated that the chargesheet in the case regarding Kejriwal was filed on July 29. Pointing that this happened before the present petition was filed, he accused Kejriwal of suppression of facts and material. It was argued that the petition should be dismissed on the sole ground that the chargesheet has been suppressed.

Filing of the chargesheet is a change in circumstance and a court considering bail will have to take that into account, the ASG added, supporting the High Court's finding that the trial court ought to be moved first for bail.

On hearing the parties, the bench observed that if the High Court was of a view, even if tentative, that the trial court ought to be approached first, then it should have expressed so at the first instance itself (on the day notice was issued) before entering into detailed arguments.

"Ideally, HC should be decisive on this question immediately. HC should have passed that order on that very day when notice was issued," Justice Kant said.  

"HC took 7 days to write this 3-para order?," asked Justice Bhuyan, on the other hand, with surprise. In reply, ASG stated that the High Courts are heavily burdened and the Delhi HC sat even on a holiday to hear the matter. He further explained the time gap by submitting that the orders in the bail plea and plea against arrest were pronounced together.

"HC's order is well-written. It does not warrant interference. Despite the fact that chargesheet has been filed, the petitioner would like this court to decide bail without chargesheet. As a matter of law, it may create havoc. This adventurism should be deprecated," ASG submitted. The fact that Kejriwal is an "influential politician" cannot be a ground for the Supreme Court to directly entertain the bail petition, he said, before remarking:

"When all other Aam Aaadmis go to the trial court for bail, there cannot be a special treatment for anyone."

Arrest in compliance with S.41 CrPC : CBI

The ASG highlighted that Kejriwal's arrest was made pursuant to a Court permission and the said order has not been challenged.

Regarding Section 41 CrPC, he submitted that clauses (b),(c),(d) of Section 41(1)(b)(ii) are applicable in the case as the arrest was necessary for proper investigation, to prevent tampering with evidence and to prevent influencing of witnesses.

The ASG claimed that the grounds of arrest were supplied to Kejriwal. He further stated that, on 26th June, Kejriwal was produced before the trial court and provided copies of applications, including remand application. The grounds of arrest could be culled out even from the remand application, he said.

It was also the ASG's stance that Section 41A CrPC was not applicable. "Section 41A is not applicable when the person is already under custody", he said.

The ASG further informed that the trial court has now taken cognizance of the chargesheet, which means that there is a prima facie case.

"If bail is granted, it would be demoralizing HC", he submitted. However, this submission was not appreciated by the bench. "How is that demoralizing? Don't say that! How can it be?," Justice Bhuyan exclaimed. In response, ASG said that he made the statement since the High Court has not had an opportunity to consider the matter on its merits. 

Punjab-angle needs to be investigated

Next, the ASG made arguments regarding the possibility of influencing witnesses. He submitted that a Punjab-based distillery, Mahadev Liquors, faced arm-twisting for not meeting the bribe demands regarding Delhi liquor policy. The investigation regarding that aspect is stalled since the AAP-government of Punjab has not given sanction under Section 17A of the Prevention of Corruption Act, he said.

Justice Bhuyan at this juncture asked if the said entity is a witness in the present case. While the ASG replied in the negative, he added that people in Goa never came forward to give statements till Kejriwal was arrested. If he is released, the witnesses will turn hostile, ASG submitted.

Singhvi's rejoinder

In rejoinder, Singhvi submitted that there is no proposition that bail cannot be granted if the chargesheet has been filed. "If that is correct, prosecution will decide when to chargesheet, and delay cognizance indefinitely. The man cannot seek bail. I can't get copy of chargesheet till trial court takes cognizance. I fear this is not the law of the land. That he can't seek bail. This is new law being argued. I can understand interested persons arguing this, but not CBI," he submitted.

Singhvi further contended that the angle regarding Mahadev Liquors was argued in the Manish Sisodia case as well, where the Court has allowed the bail application. It was submitted that "not even slightest link" has been shown between Sisodia and Mahadev Liquors, much less between Kejriwal and Mahadev Liquors.

Mere mechanical reproduction of Section 41 CrPC grounds in the arrest memo is not enough and there should be proper reasons cited adverting to the circumstances, Singhvi stated.

Background

Challenging the CBI arrest and seeking bail, Kejriwal had initially moved the Delhi High Court. On August 5, Justice Neena Bansal Krishna dismissed his plea challenging CBI arrest, but insofar as bail was concerned, liberty was given to approach the trial Court. Aggrieved by the High Court order, Kejriwal approached the Supreme Court.

On August 14, the Supreme Court issued notice on the plea, but clarified that it was not granting interim bail to Kejriwal.

For a detailed background of the case, click here.

In related news, former Delhi Deputy CM Manish Sisodia, BRS leader K Kavitha and Aam Aadmi Party's former communications-in-charge Vijay Nair, who are also accused in the liquor policy case, were recently granted bail by the Supreme Court.

Case Title: Arvind Kejriwal v. Central Bureau of Investigation, SLP(Crl) No. 11023/2024 (and connected case)

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