Judgment dated 13th September 2024
Cause title : ARVIND KEJRIWAL VS CENTRAL BUREAU OF INVESTIGATION
Case No: SLP(Crl) No. 11023/2024
A Bench of Supreme Court Judges Hon'ble Mr. JUSTICE SURYA KANT and Hon'ble JUSTICE UJJAL BHUYAN granted bail to Mr. Arvind Kejriwal in CBI Case in connection with the alleged liquor excise policy case. Ujjal Bhuyan in his separate judgment made observation on the CBI and said that Kejriwal's arrest by the agency after her secured bail in the ED case was only to frustrate Kejriwal's release from prison.
Facts of the case are:
Central Bureau of Investigation registered an FIR No. RC0032022A0053
on 17.08.2022 under Sections 120B read with Section 477A of the
Indian Penal Code, 1806 and Section 7 of the Prevention of
Corruption Act, 1988 against various persons. The FIR alleged
irregularities, falsification, undue advantage, and a conspiracy
among the persons holding positions of responsibility within the
GNCTD, in framing and implementing the Excise Policy for the year
2021-2022. However, Mr. Arvind Kejriwal's name did not figure in the
FIR.
On 21.03.2024, the Directorate of Enforcement, arrested the Mr.
Arvind Kejriwal in the purported exercise of its power under Section
19 of the Prevention of Money Laundering Act, 2002. Subsequently,
Supreme Court granted Mr. Arvind Kejriwal interim bail on
10.05.2024, until 01.06.2024. Mr. Arvind Kejriwal surrendered
thereafter before the jail authorities on 02.06.2024.
The Special Judge vide order dated 20.06.2024 granted Mr. Arvind
Kejriwal regular bail while his bail in the ED matter was pending
before Supreme Court and reserved for judgement. However, the ED
swiftly sought the cancellation of that bail order. The High Court
on 21.06.2024 stayed the operation of that order, as a result of
which, Mr. Arvind Kejriwal continued to remain in jail.
CBI moved an application on 24.06.2024 before the Special Judge (PC
Act) under Section 41A of the CrPC, seeking to interrogate Mr.
Arvind Kejriwal, which was thereupon allowed. Having completed
interrogation and examination, the CBI filed an application on
25.06.2024 seeking permission to arrest Mr. Arvind Kejriwal and for
the issuance of production warrants. Thereafter, the Trial Court
allowed the CBI's application noting that the accused was already in
judicial custody in the ED matter. In the meantime, the High Court
conclusively stayed the order granting regular bail to Mr. Arvind
Kejriwal in the ED matter on 25.06.2024 itself.
Shortly thereafter, on 26.06.2024, Mr. Arvind Kejriwal was produced
before the Trial Court, whereupon he was arrested in the CBI case
and a copy of the arrest memo was handed over to the Mr. Arvind
Kejriwal's counsel. On the same day, on an application moved by the
CBI, the Trial Court remanded Mr. Arvind Kejriwal to police custody
for five days. Subsequently, on 29.06.2024, the Trial Court remanded
Mr. Arvind Kejriwal to judicial custody till 12.07.2024. It may be
noted that the investigation at that time was ongoing.
Both the above stated orders dated 26.06.2024 and 29.06.2024 of the
Trial Court, came to be challenged by Mr. Arvind Kejriwal before the
High Court vide a Writ Petition, inter alia seeking a declaration
that his arrest was illegal. On 02.07.2024, when the Petition was
heard, the High Court issued notice to the CBI and scheduled the
matter to be heard on 17.07.2024. In the interregnum, Mr. Arvind
Kejriwal also approached the High Court under Section 439 CrPC,
seeking regular bail in connection with the subject FIR. On
05.07.2024, when the Bail Application came up for hearing, the High
Court issued notice and renotified it to be heard on 17.07.2024,
along with the Writ Petition challenging the very arrest of Mr.
Arvind Kejriwal.
The High Court extensively heard the matter on 17.07.2024 and
reserved judgement in the Writ Petition. The Bail Application was
renotified for further hearing on 29.07.2024, which was also
reserved. Finally, on 05.08.2024, the High Court vide the impugned
judgement and order upheld the arrest of Mr. Arvind Kejriwal by the
CBI and congruously denied him regular bail, with liberty to
approach the Trial Court for such relief.
As regard to the legality of Mr. Arvind Kejriwal's arrest, the High
Court upheld the same on the following broad points:
(i) The five circumstances delineated under Section 41(1)(b) of the
CrPC apply only to arrests made without a warrant and does not
pertain to arrests made under the aegis of Section 41(2) of the CrPC,
which is an arrest upon the order of a court;
(ii) The arrest was made in accordance with Section 41(2) of the
CrPC;
and (iii) The plea of non-compliance with Section 41A of the CrPC
was totally unsubstantiated.
As regard to Mr. Arvind Kejriwal's prayer for regular bail, the High
Court has denied the same for the following reasons: (i) The
complexity of the facts and material on record necessitated a more
comprehensive determination of the Mr. Arvind Kejriwal's role in the
alleged conspiracy so as to assess his entitlement to bail; and (ii)
The Bail Application had been filed prior to the chargesheet being
submitted, and since the chargesheet has now been filed before the
Trial Court, Mr. Arvind Kejriwal was directed to first approach the
Court of the Sessions Judge.
Mr. Arvind Kejriwal filed appeal before the Hon'bel Supreme Court challenging the legality and propriety of his arrest by the CBI and prayed for release on regular bail in connection with the proceedings initiated by the CBI via the subject FIR.
Some observations of Hon'ble Justice Ujjal Bhuyan in the
Judgement passed by the Hon'ble Supreme Court:
22. In so far arrest of the appellant by the CBI is concerned, it
raises more questions than it seeks to answer. 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. Even on the date of his arrest by the CBI on 26.06.2024,
appellant was not named as an accused by the CBI. Only in the last
chargesheet filed by the CBI on 29.07.2024, appellant has been named
as an accused.
23. 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.
24. In so far the grounds of arrest are concerned, I am of the view
that those would not satisfy the test of necessity to justify arrest
of the appellant and now that the appellant is seeking bail post
incarceration, those cannot also be the grounds to deny him bail.
The respondent is definitely wrong when it says that because the
appellant was evasive in his reply, because he was not cooperating
with the investigation, therefore, he was rightly arrested and now
should be continued in detention. It cannot be the proposition that
only when an accused answers the questions put to him by the
investigation agency in the manner in which the investigating agency
would like the accused to answer, would mean that the accused is
cooperating with the investigation. Further, the respondent cannot
justify arrest and continued detention citing evasive reply.
25. We should not forget the cardinal principle under Article 20(3)
of the Constitution of India that no person accused of an offence
shall be compelled to be a witness against himself. This Court has
held that such a protection is available to a person accused of an
offence not merely with respect to the evidence that may be given in
the court in the course of the trial, but is also available to the
accused at a previous stage if an accusation has been made against
him which might in the normal course result in his prosecution.
Thus, the protection is available to a person against whom a formal
accusation has been made, though the actual trial may not have
commenced and if such an accusation relates to the commission of an
offence which in the normal course may result in prosecution. An
accused has the right to remain silent; he cannot be compelled to
make inculpatory statements against himself. No adverse inference
can be drawn from the silence of the accused. If this is
the position, then the very grounds given for arrest of the
appellant would be wholly untenable. On such grounds, it would be a
travesty of justice to keep the appellant in further detention in
the CBI case, more so, when he has already been granted bail on the
same set of allegations under the more stringent provisions of PMLA.
The Hon'ble Supreme Court directed Mr. Arvind Kejriwal be released
on bail, subject to the following terms and conditions:
"a. the Appellant is directed to be released on bail in connection
with FIR No. RC0032022A0053/2022 registered by the CBI at PS CBI,
ACB, upon furnishing bail bonds for a sum of Rs. 10,00,000 /- with
two sureties of such like amount, to the satisfaction of the Trial
Court;
b. the Appellant shall not make any public comments on the merits of
the CBI case, it being sub judice before the Trial Court. This
condition is necessitated to dissuade a recent tendency of building
a self-serving narrative on public platforms;
c. however, this shall not preclude the Appellant from raising all
his contentions before the Trial Court;
d. the terms and conditions imposed by a coordinate bench of this
Court vide orders dated 10.05.2024 and 12.07.2024 passed in Criminal
Appeal No. 2493/2024, titled Arvind Kejriwal v. Directorate of
Enforcement, are imposed mutatis mutandis in the present case;
e. the Appellant shall remain present before the Trial Court on each
and every date of hearing, unless granted exemption; and f. the
Appellant shall fully cooperate with the Trial Court for expeditious
conclusion of the trial proceedings.
Download Judgment dated 13th September 2024 in ARVIND KEJRIWAL VS CENTRAL BUREAU OF INVESTIGATION, SLP(Crl) No. 11023/2024 and 10991 of 2024, Criminal Appeal No. 3816 of 2024 and 3817 of 2024.