Supreme Court Grants Bail to Arvind Kejriwal in CBI Excise Policy Case

Background of the Case

The CBI registered FIR No. RC0032022A0053 on 17 August 2022 alleging irregularities in the framing and implementation of the Delhi Excise Policy for 2021-2022. The FIR referred to offences under Sections 120B and 477A of the Indian Penal Code, 1860 and Section 7 of the Prevention of Corruption Act, 1988, among other allegations. Arvind Kejriwal was not named in the original FIR.

Separately, the Directorate of Enforcement arrested Kejriwal on 21 March 2024 in proceedings under the Prevention of Money Laundering Act, 2002. The Supreme Court later granted him interim bail from 10 May 2024 until 1 June 2024, after which he surrendered on 2 June 2024.

On 20 June 2024, the Special Judge granted him regular bail in the ED matter. The Delhi High Court stayed that order on 21 June 2024 and subsequently continued the stay. The CBI then sought permission to interrogate Kejriwal while he was in judicial custody. After interrogation, the CBI applied for permission to arrest him.

On 26 June 2024, Kejriwal was produced before the Trial Court and arrested in the CBI case. He was initially remanded to police custody and was thereafter sent to judicial custody.

Proceedings Before the Delhi High Court

Kejriwal challenged the legality of his arrest before the Delhi High Court and also sought regular bail. On 5 August 2024, the High Court upheld the arrest and declined to grant regular bail, while leaving him at liberty to approach the Trial Court for bail.

The High Court's decision was then challenged before the Supreme Court through SLP (Crl.) Nos. 11023 and 10991 of 2024, which became Criminal Appeal Nos. 3816 and 3817 of 2024 after leave was granted.

Supreme Court Decision

The Supreme Court granted bail. Justice Surya Kant authored the lead judgment and Justice Ujjal Bhuyan delivered a separate concurring judgment. Both Judges agreed that Kejriwal should be released on bail, though their reasoning regarding the arrest differed in important respects.

Justice Surya Kant

The lead judgment examined the legality of arrest and the claim for regular bail. The Court did not invalidate the arrest, but held that continued incarceration was not warranted in the circumstances and directed release on bail subject to safeguards intended to protect the pending trial.

Justice Ujjal Bhuyan's Separate Opinion

Justice Ujjal Bhuyan expressed serious reservations about the timing and necessity of the CBI arrest. He noted that the CBI case had been registered in August 2022 and that the appellant had been interrogated in April 2023, but the agency did not arrest him until June 2024.

Justice Bhuyan also rejected the proposition that an accused can be treated as non-cooperative merely because answers given during interrogation do not conform to what the investigating agency expects. He referred to the constitutional protection against compelled self-incrimination under Article 20(3) and the right of an accused to remain silent.

Bail Conditions Imposed by the Supreme Court

• Kejriwal was directed to furnish bail bonds of ₹10,00,000 with two sureties of the like amount to the satisfaction of the Trial Court.
• He was directed not to make public comments on the merits of the CBI case while the matter remained sub judice.
• He remained free to raise all legal and factual contentions before the Trial Court.
• The conditions earlier imposed in Arvind Kejriwal v. Directorate of Enforcement were applied mutatis mutandis.
• He was required to remain present before the Trial Court on every date of hearing unless exempted.
• He was required to cooperate with the Trial Court for expeditious conclusion of the proceedings.

Applicable Law and Current Legal Position

Criminal Procedure Code and BNSS Savings

The arrest and proceedings discussed in this judgment arose under the Code of Criminal Procedure, 1973. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024 and repealed the CrPC. However, Section 531(2)(a) of the BNSS expressly preserves pending appeals, applications, trials, inquiries and investigations and requires them to continue under the CrPC where they were pending immediately before commencement of the BNSS.

Prevention of Corruption Act, 1988

The underlying CBI FIR included Section 7 of the Prevention of Corruption Act, 1988. The provision concerns the offence of a public servant obtaining, accepting or attempting to obtain an undue advantage in connection with improper or dishonest performance of public duty.

IPC and BNS

The FIR also invoked IPC provisions including Sections 120B and 477A. The Bharatiya Nyaya Sanhita, 2023 repealed the IPC from 1 July 2024, but Section 358 of the BNS preserves liabilities, penalties, investigations and proceedings relating to offences committed under the repealed IPC.

Why the Judgment Is Important

The decision is significant for its treatment of personal liberty, necessity of continued detention, judicial scrutiny of arrest, and the principle that an accused cannot be compelled to provide answers in a manner desired by an investigating agency. It also illustrates the distinction between examining the legality of an arrest and deciding whether continued pre-trial detention is justified.

The separate opinion of Justice Ujjal Bhuyan is particularly notable for its examination of the timing of the CBI arrest and its emphasis on Article 20(3) of the Constitution of India.