No 'Procedural Infirmity' In CBI Arrest, There Was A Judicial Order : Justice Surya Kant In Kejriwal's Case

While rejecting Delhi CM Arvind Kejriwal's petition challenging his CBI arrest in the liquor policy case, Justice Surya Kant of the Supreme Court today held that there was no reason for the arresting officer to form an opinion regarding reasons for arrest as the agency arrested Kejriwal pursuant to a judicial order.

Even though the validity of arrest was upheld, the Court granted him bail.

To recap, a bench of Justices Surya Kant and Ujjal Bhuyan delivered judgment today on Kejriwal's challenge to a Delhi High Court order of August 5, whereby his pleas challenging CBI arrest and seeking bail were dismissed with liberty to approach the trial court for bail.

After hearing the matter at length, the bench had reserved its orders on September 5. Today, it delivered two separate, concurring judgments. To read more about the pronouncement, click here.

One of the arguments raised on behalf of Kejriwal to assail the CBI arrest was that the procedure for arrest, as outlined under Sections 41(1)(b)(ii) and 41A of the CrPC, was not complied with.

The judgment authored by Justice Kant dealt with the contention from two perspectives: (1) whether requirement of issuance of notice under Section 41A CrPC was duly complied with? and (2) whether Section 41(1)(b)(ii) of the CrPC applied to the facts of the case?

No violation of Section 41A CrPC

On the first issue, Justice Kant held that there was no violation of Section 41A CrPC.

Focusing the analysis on Section 41A(3) CrPC, the judge said that there is no impediment in arresting a person already in custody for the purposes of investigation, whether for the same offence or for an altogether different offence. This is however subject to reasons being recorded, justifying the necessity of such a step, and the police officer being satisfied that the individual should be arrested. 

Justice Kant further opined that Section 41A(3) essentially carves out an exception to the general rule under Section 41A that a person whose appearance is required should not be arrested under Section 41(1).

On facts, it was noted that the CBI, in its application dated 25.06.2024, recorded the reasons as to why it deemed Kejriwal's arrest necessary. Further, these were recorded in the arrest memo. As such, it could not be said that CBI didn't comply with Section 41A in its true letter and spirit.

Section 41(1)(b)(ii) CrPC not applicable to the case

Section 41(1)(b)(ii) of the CrPC stipulates that an arrest thereunder can be made based on a complaint or credible information that an individual has committed a cognizable offence punishable with imprisonment up to seven years. However, such an arrest must be subject to the satisfaction of conditions outlined in subsections (a) to (e).

While acknowledging that Kejriwal's submissions on the interpretation of the provision were sound, Justice Kant held that it was not applicable to the facts of the case, as the arrest was made following a judicial order. Thus, there was no reason for the arresting officer to form an opinion regarding reasons for arrest.

"Here is a case where the court upon application of judicial mind accorded its approval to the Appellant's arrest for which necessary warrant was issued. There was thus no occasion for the arresting police officer to form an opinion regarding the existence of valid reasons of arrest. The competent court having undertaken such a task, the police officer cannot be expected to sit over the order of the court."

Pointing to Section 41(1) CrPC, the judge remarked that where a Magistrate has issued an order, the police officer stands absolved form his statutory obligation of forming an opinion. Having arrived at these conclusions, Justice Kant ultimately recorded that Kejriwal's arrest did not suffer from any procedural infirmity.

It is worthwhile to mention, in his separate (concurring) opinion, Justice Bhuyan cast suspicions on the necessity and timing of Kejriwal's arrest. The judge further observed that the agency could not justify Kejriwal's arrest on the ground that he gave 'evasive replies' during the interrogation.

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/download the judgment