A CRITICAL EXAMINATION OF SUPREME COURT’S INTERPRETATION ON ARREST AND BAIL IN ‘ARVIND KEJRIWAL VS. CENTRAL BUREAU OF INVESTIGATION’

Introduction

The Hon’ble Supreme Court of India, vide Order dated 13-09-2024, delivered a crucial verdict in the matter of Arvind Kejriwal vs. CBI [2024 INSC 687], a case that has garnered widespread attention not only for its high-profile nature but also for its implications on the procedural safeguards concerning arrests and the jurisprudence surrounding bail. Another reason for the controversy was that it was further alleged that the gains from this Excise Policy were ultimately utilised by the Appellant’s political party towards election related expenses, during the 2021-22 Goa Assembly elections.

The Bench, comprising Justice Surya Kant and Justice Ujjal Bhuyan, adjudicated on key issues regarding the legality of the Appellant’s arrest and his entitlement to bail amidst serious allegations of corruption related to the Delhi Excise Policy for 2021-2022.

Factual Background

The Central Bureau of Investigation (CBI) registered FIR on 17-08-2022, alleging irregularities and conspiracy involving senior officials of the Delhi Government in the framing and implementation of the Excise Policy. The allegations primarily pertained to unlawful advantages and manipulations designed to benefit specific groups, leading to undue gains for liquor wholesalers and retailers. The investigation fell under Sections 120B and 477A[1] of the Indian Penal Code (IPC), along with Section 7[2] of the Prevention of Corruption Act, 1988.

Although Arvind Kejriwal’s name did not initially appear in the FIR, the Enforcement Directorate (ED), probing a connected case under the Prevention of Money Laundering Act (PMLA), arrested him on 21-03-2024. After a brief interim bail, Kejriwal was re-arrested by the CBI on 26-06-2024. His subsequent plea before the High Court of Delhi challenging the legality of his arrest and seeking bail was dismissed on 05-08-2024, prompting the present appeal before the Supreme Court.

Key Issues Before the Court

• Whether there was any illegality in the Appellant’s arrest? If so, whether the Appellant is entitled to be released forthwith, even in the absence of a formal bail application?
• Whether the Appellant, regardless of his lawful arrest, is entitled to be enlarged on regular bail?
• Whether the filing of a chargesheet is a change in circumstances of such a decisive nature that an accused would be liable to be relegated to the Trial Court to make out a case for grant of regular bail?

Contentions of the Parties

The matter was argued at length by both parties regarding Arvind Kejriwal’s bail. The Appellants were of the opinion that Kejriwal’s bail was procedurally flawed. Whereas, the counsel for CBI was of the opinion that in view of the fact that Kejriwal was already in judicial custody there was no requirement for the Police to follow the process laid down in Section 41 of the CRPC

Appellant’s Arguments:
Senior Advocate Dr. Abhishek Manu Singhvi, representing Arvind Kejriwal, advanced the argument that the arrest was procedurally flawed. He submitted that Kejriwal’s arrest violated Sections 41(1) and 41A of the CrPC, as there had been no proper justification for shifting from ‘non-arrest’ to ‘arrest’ as mandated under Section 41A(3). Further, Kejriwal’s compliance with notices during the ED investigation and his cooperation suggested that the arrest was not necessary. Dr. Singhvi also emphasized that Kejriwal’s continued detention was unjustified, as all relevant material had been collected, and the Appellant posed no flight risk or threat to tamper with evidence.

Respondent’s Arguments:

On behalf of the CBI, Additional Solicitor General (ASG) Mr. S.V. Raju argued that the arrest was legally sound and compliant with Section 41(1)(b)(ii) CrPC. The CBI contended that custodial interrogation was essential to uncover a larger conspiracy involving the Appellant and to confront him with crucial evidence. The ASG further dismissed the necessity of serving a notice under Section 41A, as Arvind Kejriwal was already in judicial custody in the ED matter. Mr. Raju also raised concerns over possible witness intimidation, citing Kejriwal’s influence and stature.

Analysis by the Apex Court

The Court engaged in a detailed analysis of both procedural and substantive issues, providing much-needed clarity on the interplay between the provisions of CrPC and the circumstances of the arrest.

Legality of the Arrest

The Appellant had primarily challenged the arrest on the grounds of non-compliance with Sections 41(1)(b)(ii) and 41A of the CrPC. The Court, however, ruled that the arrest was lawful, rejecting claims of procedural violations. Justice Surya Kant noted that the CBI had filed an Application before the Trial Court, which was duly considered, and the arrest was judicially sanctioned. As such, there was no need for the CBI to independently issue a notice under Section 41A CrPC, given Kejriwal’s existing judicial custody in the ED matter.

Furthermore, the Court underscored that Section 41(1)(b)(ii) CrPC, which pertains to arrests made without a warrant, did not apply in this case since Kejriwal’s arrest was based on a judicial order. The safeguards under Section 41A, which are designed to prevent arbitrary arrests, were not meant to apply when an arrest is court-sanctioned.

The rigors of Section 41(1)(b)(ii) were extensively examined by the Hon’ble Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 27] where it was observed that:

“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest

 7.3. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Infact, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.”

Right to Bail

In addressing Kejriwal’s plea for bail, the Court reiterated the importance of personal liberty under Article 21 of the Constitution. While upholding the legality of the arrest, the Court emphasized that the prolonged incarceration of the Appellant was not warranted, particularly given that all relevant material had already been seized by the CBI. Referring to well-established bail principles, the Court found no merit in the contention that Kejriwal posed a risk to witnesses or would abscond, given his deep societal roots and political stature.

The Court balanced these considerations with the need to ensure that Kejriwal’s release would not jeopardize the trial process, ultimately granting regular bail under stringent conditions.

Filing of the Chargesheet

The Respondent argued that the filing of the chargesheet constituted a significant change in circumstances, necessitating that the Appellant seek bail from the Trial Court. The Court disagreed, holding that the High Court had already exercised its jurisdiction in hearing the matter on merits. Relegating the case to the Trial Court at this stage would serve no substantive purpose, especially considering the detailed arguments already made before the High Court and Supreme Court.

Judgement

The Supreme Court’s ruling in Arvind Kejriwal vs. CBI showcases a balanced judicial approach where both Justice Surya Kant and Justice Ujjal Bhuyan, despite differing in their analyses, arrived at a shared conclusion.

While Justice Surya Kant upheld the legality of Kejriwal’s arrest and granted him bail based on procedural compliance and established jurisprudence, Justice Bhuyan expressed reservations regarding the necessity and timing of the arrest, suggesting it may have been strategically motivated following Kejriwal’s bail in the ED case.

Nonetheless, both Justices agreed that continued detention was unwarranted, highlighting the importance of personal liberty and the need for stringent bail conditions to ensure a fair trial. This dual approach underscores the depth of judicial reasoning and the protection of fundamental rights, even amidst high-profile cases.

The Hon’ble Court upheld the High Court’s ruling, affirming that Kejriwal’s arrest was lawful and in compliance with relevant legal provisions.

The Hon’ble Court, in light of the Appellant’s continued incarceration and the nature of the evidence available, granted Kejriwal regular bail with the following conditions:

• Bail bonds of ₹10,00,000 with two sureties of like amount.
• A prohibition on making public comments about the case, which remains sub judice.
• Mandatory presence before the Trial Court at every hearing, unless exempted.
• Full cooperation with the expeditious conclusion of the trial.

The appeal concerning the legality of the arrest was dismissed, while the appeal seeking bail was allowed.

Conclusion

The Arvind Kejriwal vs. CBI [2024 INSC 687], judgement reaffirms the critical balance between individual liberty and the integrity of the criminal justice system. The Supreme Court’s careful examination of procedural safeguards, particularly in the context of high-profile political cases, sets a significant precedent for how arrests should be conducted in politically sensitive matters. By upholding the principles of fairness in arrest procedures and affirming the right to bail in cases of prolonged detention, the judgment upholds the sanctity of personal liberty as enshrined in the Constitution. This judgement also brings to fore that the highest Court in the country is not affected by political titles and the Arvind Kejriwal journey for bail bears testimony to this fact.

Sushila Ram Varma
Advocate, Chief Consultant

 

Assisted by- Adv. Ashita S

[1] 477A of IPC Falsification of accounts. —

Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Explanation.— It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed.

 

[2] 7. Offence relating to public servant being bribed.— Any public servant who,–

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

shall be punishable with 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.

Explanation 1.–For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration.–A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section

Explanation 2.–For the purpose of this section,–

(i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.