SUPREME COURT GRANTS INTERIM BAIL TO DELHI CM- SHRI. ARVIND KEJRIWAL AND REITERATES THAT ARRESTING OFFICER MUST ADHERE TO STATUTORY ARREST PROCEDURES

A two-Judge Bench of the Hon’ble Supreme Court, comprising of Justice Sanjiv Khanna and Justice Dipankar Datta, passed a Judgement dated 12.07.2024 in ARVIND KEJRIWAL vs. DIRECTORATE ENFORCEMENT CRIMINAL APPEAL NO. 2493 OF 2024, wherein the Supreme Court granted interim bail to Delhi Chief Minister, Mr. Arvind Kejriwal and reiterated that an arresting officer must adhere to the stringent procedure provided in Section 19 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the Act) (19. Power to arrest) to protect an individual’s right to life and liberty.

Further, the 2-Judge Bench of the Apex Court referred certain questions of law to a larger bench including- Whether the “need and necessity to arrest” is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the Act?

Facts

The Appellant- Mr. Kejriwal had filed this Appeal challenging the Judgement dated 09.04.2024 passed by Delhi High Court, wherein the Appellant’s Criminal Writ Petition filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as the Code) challenging his arrest on 21.03.2024 by Directorate of Enforcement (hereinafter referred to as the ED) got rejected.

That on 17.08.2022, the CBI registered a case based on a Complaint made by the Lieutenant Governor of Delhi. This involved offences under the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. The Chargesheets were filed on 25.11.2022, 25.04.2023 and 08.07.2023, alleging a conspiracy in the framing of the Excise Policy, which caused significant losses to the Government. However, the Chief Minister of Delhi, Mr. Arvind Kejriwal was not initially named as an accused.

That on 22.08.2022, the ED began investigating under the Act based on the CBI’s case. The ED filed multiple prosecution Complaints and, in the 7th, supplementary Complaint on 17.05.2024, Mr. Kejriwal was named as an Accused. He was arrested on 21.03.2024 after failing to respond to several summons. In the instant Appeal, the Delhi Chief Minister had argued that his arrest violated Section 19(1) of the Act.

Issues

1)  Whether the arrestee is entitled to be supplied with a copy of the “reasons to believe”?

 

2) Whether the Court while examining the validity of arrest in terms of Section 19(1) of the Act will also go into and examine the necessity and need to arrest?

 

3)  Whether the arrest of the person during the course of investigation complies with the law?

 

4) Does ED’s judicial review involves a review of the detailed merits?

 

Analysis of the Court

The Court has extensively analyzed Section 19 of the Act, emphasizing the strict preconditions and safeguards necessary to be complied with to ensure the legality of arrests under the said provision. Section 19(1) allows an officer to arrest a person if they have material evidence and form “reasons to believe” that the person is guilty of an offence under the ACT. The Supreme Court cited Vijay Madanlal Choudhary and others v. Union of India and others (2022) SCC Online SC 929 in which a three-Judge Bench highlighted the difference between stringent requirements stipulated in Section 19(1) of the Act, and the power of arrest given to the police in cognisable offences under Section 41 of the Code.

It was argued by the ED that the Accused was entitled to the “grounds of arrest” and not the “reasons to believe” to which the Could said that once it has been held that the Accused is entitled to challenge his arrest, it is difficult to accept that the “reason to believe”, as recorded in writing, are not to be furnished.

Referring to Prabir Purkayashtha v. State (NCT of Delhi) 2024 SCC OnLine SC 934, the Apex Court clarified that Section 19(1) of the Act is designed to achieve a greater objective and to uphold the provisions of Article 22(1) of the Constitution. These reasons must be recorded in writing, and the arrested person must be informed of the grounds of arrest as soon as possible to ensure actions are not taken arbitrarily or based on subjective opinions of the officers.

Regarding the contentions made by ED that investigation does not fall under the purview of judicial scrutiny, the Court rejected this argument and held that the power of judicial review would prevail, and the Court/Magistrate is required to examine that the exercise of power to arrest meets the statutory conditions.

The Court clarified that judicial review of arrests made under Section 19(1) of the Act by EDs do not amount to a mini-trial or merit review. The review is confined to ascertaining whether the “reasons to believe” are based on material evidence. The Supreme Court emphasized that arrests should not be made arbitrarily and it is the duty of Court to protect Fundamental Rights of citizens. Further, the Bench referred to Centre for PIL and another v. Union of India and another, (2011) 4 SCC 1, and observed that in judicial review, it is permissible to examine the question of illegality in the decision-making process.

Further, regarding the “necessity to arrest”, the Court referred Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, which lays down that “necessity to arrest” must be considered by an officer before arresting a person. This Court observed that the officer must ask himself the questions – why arrest? is it really necessary to arrest?; what purpose would it serve?; and what object would it achieve? However, the interpretation regarding “necessity to arrest” was referred by the Bench to a Higher Bench.

Conclusion

Considering that the right to life and liberty is extremely important and that CM Arvind Kejriwal had been in jail for over 90 days, and as the issues above mentioned needed careful review by a larger panel of Judges, the Supreme Court held that CM Arvind Kejriwal be granted interim bail in the case bearing ECIR No. HIU-II/14/2022 dated 22.08.2022.

The 2-Judge Bench of the Supreme Cour, further, referred the following issues to a larger bench:

1. a) Whether the “need and necessity to arrest” is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the Act?
2. b) Whether the “need and necessity to arrest” refers to the satisfaction of formal parameters to arrest and take a person into custody, or it relates to other personal grounds and reasons regarding necessity to arrest a person in the facts and circumstances of the said case?
3. c) If questions (a) and (b) are answered in the affirmative, what are the parameters and facts that are to be taken into consideration by the Court while examining the question of “need and necessity to arrest”?

 

SURAJ

4^th YEAR

INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, HARYANA

INTERN

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