Supreme Court of India
Arvind Kejriwal vs Central Bureau Of Investigation on 13 September, 2024
Author: Surya Kant
Bench: Surya Kant
2024 INSC 687 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 3816 / 2024
(Arising out of Special Leave Petition (Crl.) No. 11023 / 2024)
Arvind Kejriwal ….Appellant(s)
versus
Central Bureau of Investigation ….Respondent(s)
WITH
Criminal Appeal No. 3817 / 2024
(Arising out of Special Leave Petition (Crl.) No. 10991 / 2024)
JUDGEMENT
SURYA KANT, J.
Leave granted.
2. These appeals are directed against the judgements and orders dated
05.08.2024 passed by the High Court of Delhi (hereinafter, ‘High
Court’), dismissing the Appellant’s challenge to his arrest being illegal as
well as his application for the grant of regular bail. Consequently, the
High Court upheld the legality of the Appellant’s arrest and has
summarily declined to exercise its concurrent jurisdiction under Section
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2024.09.13
439 of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’),
12:57:36 IST
Reason:
thereby denying his prayer for regular bail.
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FACTS:
3. At the very outset, it is essential to advert to the brief factual background
to provide context to the manner in which the present proceedings have
arisen.
3.1. The Appellant is a public representative and has been elected thrice the
Chief Minister of the Government of National Capital Territory of Delhi
(hereinafter ‘GNCTD’). He also happens to be the National Convenor of
Aam Aadmi Party, a political party in India.
3.2. Central Bureau of Investigation (hereinafter ‘CBI’) – the Respondent
registered an FIR No. RC0032022A0053 (hereinafter ‘FIR’), on
17.08.2022 under Sections 120B read with Section 477A of the Indian
Penal Code, 1806 (hereinafter ‘IPC’) and Section 7 of the Prevention of
Corruption Act, 1988 (hereinafter ‘PC Act’) 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 (hereinafter ‘Excise Policy’). However, the Appellant’s name
did not figure in the FIR.
3.3. On 21.03.2024, the Directorate of Enforcement (hereinafter ‘ED’),
arrested the Appellant in the purported exercise of its power under
Section 19 of the Prevention of Money Laundering Act, 2002.
Subsequently, this Court granted the Appellant interim bail on
10.05.2024, until 01.06.2024. The Appellant surrendered thereafter
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before the jail authorities on 02.06.2024. We may hasten to add here
that the question of law sought to be raised in the ED matter is presently
pending consideration before a larger bench of this Court and is not
relevant to the present controversy, and its particulars are included
solely to ensure lucidity in the factual matrix.
3.4. The Special Judge vide order dated 20.06.2024 granted the Appellant
regular bail while his bail in the ED matter was pending before this 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, the Appellant continued to
remain in jail.
3.5. CBI moved an application on 24.06.2024 before the Special Judge (PC
Act) (hereinafter ‘Trial Court’) under Section 41A of the CrPC, seeking
to interrogate the Appellant, which was thereupon allowed. Having
completed interrogation and examination, the CBI filed an application on
25.06.2024 seeking permission to arrest the Appellant 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 the Appellant in the ED matter on
25.06.2024 itself.
3.6. Shortly thereafter, on 26.06.2024, the Appellant was produced before the
Trial Court, whereupon he was arrested in the instant CBI case and a
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copy of the arrest memo was handed over to the Appellant’s counsel. On
the same day, on an application moved by the CBI, the Trial Court
remanded the Appellant to police custody for five days. Subsequently, on
29.06.2024, the Trial Court remanded the Appellant to judicial custody
till 12.07.2024. It may be noted that the investigation at that time was
ongoing.
3.7. Both the above stated orders dated 26.06.2024 and 29.06.2024 of the
Trial Court, came to be challenged by the Appellant 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, the Appellant 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
the Appellant.
3.8. 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 the Appellant by the CBI and congruously denied
him regular bail, with liberty to approach the Trial Court for such relief.
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3.9. As regard to the legality of the Appellant’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.
3.10. As regard to the Appellant’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 Appellant’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, the Appellant was directed to first
approach the Court of the Sessions Judge.
3.11. Meanwhile, this Court vide order dated 12.07.2024, passed in Criminal
Appeal No. 2493/2024 directed the Appellant’s release on interim bail in
the ED matter.1 However, the Appellant continues to face incarceration
on account of the proceedings initiated by the CBI.
1 Arvind Kejriwal v. Directorate of Enforcement, Criminal Appeal No. 2493/2024.
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3.12. The instant appeals are therefore restricted to the Appellant’s
challenges regarding the legality and propriety of his arrest by the CBI
and his prayer for release on regular bail in connection with the
proceedings initiated by the CBI via the subject FIR.
CONTENTIONS OF THE PARTIES
4. Dr. Abhishek Manu Singhvi, Learned Senior Counsel representing the
Appellant, argued first and foremost that the Appellant had been arrested
illegally, in violation of the procedure enumerated in Sections 41(1) and
41A of the CrPC. In this vein, he assailed that the Appellant was arrested
without giving any reasons, thus violating the: (i) precondition of just and
valid reasons for the change of a case from ‘non-arrest’ to ‘arrest’ under
Section 41A (3) of the CrPC; and (ii) the mandatory details that have to
be fulfilled under Section 41(1)(b)(ii), to satisfy that the arrest fell within
the purview of any of the clauses (a) to (e). Considering that none of these
stipulations were complied with, the Appellant’s arrest is fraught with
illegality.
5. Dr. Singhvi drew our attention to the High Court having erred in
misapplying the provision of Section 41(2) of the CrPC to justify the non-
compliances of Section 41(1)(b)(ii) of the CrPC and consequential arrest
of the Appellant. He highlighted that Section 41(2) is attracted only to
non-cognizable offences, whereas the arrest of the Appellant was made
in a case of cognizable offence. This was fortified by contending that none
of the applications moved by the CBI seeking remand, sought to invoke
Section 41(2). These violations, Learned Senior Counsel contended, were
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squarely against the dictum of this Court in Arnesh Kumar v. State of
Bihar2 and a plethora of other subsequent decisions.
6. Dr. Singhvi further argued that the Appellant deserves to be granted bail,
as his continued incarceration is not necessitated, given that the entire
material is in the safe custody of the CBI. He also emphasized that the
Appellant has been granted both interim and regular bail in the ED
matter by this Court, where the conditions are stricter, thus
demonstrating that he would invariably meet the threshold explicated by
the ‘triple test’ in the CBI matter as well: he has no criminal antecedents,
is not a flight risk, and poses no threat of tampering with witnesses or
evidence. He also assailed that the High Court ought not to have
relegated the Appellant to the Trial Court, considering that it exercises
concurrent jurisdiction under Section 439 of the CrPC. This measure, he
underscored, was akin to taking the Appellant back to square one,
leading to a travesty of justice and unwarranted delay in the adjudication
of his bail application.
7. Lastly, Dr. Singhvi drew our attention to the fact that the trial was not
likely to be concluded in the near future, as the FIR was registered on
17.08.2022, with one chargesheet and three supplementary
chargesheets having been filed, 17 accused persons arraigned, as many
as 224 witnesses cited and the physical and digital records running into
lakhs of pages. Further, the fourth supplementary charge sheet was filed
on 29.07.2024, cognizance of which was taken only recently, and which
2 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
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was yet to be supplied to the Appellant. These reasons, he contended,
irrefutably validated his apprehension of reasonable delay in the
conclusion of trial.
8. Per contra, Mr. S.V. Raju, Learned Additional Solicitor General of India
argued that the arrest of the Appellant had been conducted in due
compliance with the statutory procedure as contemplated in Section
41(1) and 41A of the CrPC. He contended that these provisions do not,
in any manner, mandate a blanket ban on the arrest of an individual,
against whom there is a reasonable suspicion of commission of a
cognizable offence, punishable with imprisonment up to seven years. The
law only stipulates that the investigating authority ought to be satisfied
with the necessity of such an arrest, which has been duly met in the
present case. He strenuously urged that the pre-requisites set out in
Section 41(1)(b)(ii) had been fulfilled as the CBI deemed it imperative to
conduct the custodial interrogation of the Appellant to unearth a larger
conspiracy hatched amongst the accused persons and to establish the
money trail of ill-gotten proceeds.
9. Mr. Raju contended that the requirement of notice under Section 41A of
the CrPC is intended solely to compel the accused to appear before the
investigating authority. Since the accused in the instant case was already
in judicial custody, such notice would have been an empty formality. He
argued that the CBI had obtained permission from the Trial Court, under
whose custody the Appellant was. He supported his contention by
referencing Section 41A (4) of the CrPC, which outlines the procedure for
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situations where an accused fails to comply with a Section 41A notice.
Mr. Raju maintained that, given the Appellant’s incarceration, the
circumstance envisaged under Section 41A (4) becomes inapplicable, and
therefore, the requirement of notice thereunder was not necessary. In
regard to the misgivings on the erroneous application of Section 41(2) of
the CrPC, he explained that the High Court had inadvertently mistyped
the provision and that it ought to be read as Section 41(1)(b)(ii) of the
CrPC instead.
10. While strongly opposing the Appellant’s prayer for bail, Mr. Raju
contended that there was a likelihood of witness intimidation, should the
Appellant be released on bail, resulting in the trial proceedings being
severely derailed. Mr. Raju also alluded to certain instances having
occurred in the context of M/s. Mahadev Liquors of Punjab, thus
pointing to the influence exerted by the Appellant, whose political outfit
is ruling more than one State.
11. Mr. Raju vehemently pressed into aid his preliminary objection to
relegate the Appellant to the Trial Court, who he stressed ought not to
have approached the High Court directly, notwithstanding the
concurrent jurisdiction under Section 439 of the CrPC. He urged that the
Appellant should not be granted any special treatment merely because
of the position of power he holds or his political stature. Mr. Raju
canvassed that the Appellant deserves to be treated like any other
undertrial and, hence, he must firstly approach the Trial Court,
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emphasizing that the High Court’s jurisdiction is discretionary and
should be exercised only in rare and exceptional circumstances.
12. According to the Learned ASG, the High Court was correct in refusing to
exercise its jurisdiction because the Appellant had failed to make out an
exceptional case warranting such special scrutiny. Furthermore, Mr.
Raju highlighted a significant anomaly: the Appellant’s failure to annex
the chargesheet while applying for bail. He argued that a crucial aspect
of seeking bail is to demonstrate, based on the material on record, that
no prima facie case exists against the accused. Due to these oversights,
Mr. Raju asserted that the Appellant should first seek relief from the Trial
Court.
13. Lastly, Mr. Raju submitted that since the chargesheet and some
supplementary chargesheets have been filed after the Appellant had
approached the High Court for his enlargement on bail, it is a significant
change in circumstances and therefore, in light of this too the Appellant
should be relegated to the Trial Court. Such relegation would aid in his
bail claim being considered with reference to the nature of evidence
gathered by the CBI and the complicity of the Appellant, if any, as may
be discernible from such evidence.
ISSUES
14. Having considered the material on record and the extensive submissions
made by the parties, the following questions fall for our deliberation:
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i. 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?
ii. Whether the Appellant, regardless of his lawful arrest, is entitled to
be enlarged on regular bail?
iii. 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?
ANALYSIS
15. We have bestowed our consideration to the rival contentions, along with
the sequence of events that culminated in the Appellant’s arrest. Given
the nature of the issues pending determination, it is essential to address
them each independently and arrive at a definitive conclusion.
A. Whether the procedure undertaken in arresting the Appellant was
illegal?
16. The primary basis for the Appellant’s challenge rests on the contention
that the procedure for arrest, as outlined under Sections 41(1)(b)(ii) and
41A of the CrPC, was not complied with. For the purpose of analysing
the legality of the Appellant’s arrest, there are two key aspects which we
propose to examine separately, namely: (i) whether the issuance of a
notice under Section 41A of the CrPC was duly complied with, in the
context of the present factual scenario; and (ii) whether Section
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41(1)(b)(ii) of the CrPC is applicable in the facts and circumstances of
this case.
i. Compliance with Section 41A of the CrPC
17. Section 41A of the CrPC pertains to the issuance of a notice by a police
officer to an individual when their arrest is not warranted under Section
41(1) of the CrPC, but their presence is still required before the
investigating authority. Issuance of a notice under Section 41A(1)
therefore would be imminent, when there is a complaint made, credible
information received or there is a reasonable suspicion of the individual
having committed a cognizable offence. Clause (2) of Section 41A
thereafter, demands that an individual to whom such a notice has been
issued, complies with the same. Section 41A (3) bears out that an
individual who complies and continues to comply with such notice is not
to be arrested in respect of the offence mentioned, unless the police
officer, for reasons to be recorded, deems it necessary to arrest them.
Finally, Section 41A (4) stipulates that if an individual fails to comply
with the notice or refuses to identify themself, the police may arrest such
an individual for the offence recorded in the notice, subject to any orders
passed by a competent court.
18. Given the lucid nature of the language of the provision, it is crucial to
examine the circumstances surrounding the Appellant’s arrest in order
to gauge whether there was due compliance with the procedural
safeguards enshrined within Section 41A. In the present context, since
the Appellant was already in judicial custody at the relevant time in the
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ED case, the CBI filed an application on 24.06.2024 before the Trial
Court under Section 41A of the CrPC, inter alia seeking to interrogate
and examine him. Such examination was allegedly necessitated by new
facts and evidence uncovered by the CBI upon further investigation. The
CBI, vide this application, outlined the reasons prompting such
examination, including the purported irregularities in the framing and
implementation of the Excise Policy, and its manipulation to facilitate the
monopolization and cartelization of wholesale and retail liquor trade in
India.
19. The application also alleged that, upon further investigation, statements
from several witnesses, incriminating documents and messages
exchanged between the accused persons named in the chargesheets,
revealed that the Appellant was a critical component in the criminal
conspiracy related to the Excise Policy. It was claimed that the Appellant,
in connivance with the other accused persons, engaged in tweaking the
policy to enhance the profit margin of wholesalers from 5% to 12%,
resulting in significant windfall gains. These gains were ultimately
alleged to have been utilised by the Appellant’s political party towards
election related expenses, during the 2021-22 Goa Assembly elections.
The application highlighted that the emergence of these new facts,
pointing toward the Appellant’s complicity, required further examination,
as there was reasonable suspicion of his involvement in the commission
of the offence. Upon considering these reasons, the Trial Court, by its
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order dated 24.06.2024, allowed the CBI’s application seeking to
interrogate the Appellant.
20. At this juncture, it is pertinent to first address the Appellant’s allegations
regarding the CBI’s non-compliance with Section 41A of the CrPC,
particularly concerning the issuance of notice or lack thereof. In this
regard, it is crucial to draw reference to the language and intent of the
provision, which aims to ensure an individual’s appearance through the
issuance of a notice. The provision, however, does not outline any
express procedure to be undertaken where the individual in question is
already incarcerated. It is to be remembered that the Court is, in a way,
the guardian of an undertrial, while he is in judicial custody. That being
so, there could possibly be no other way to secure the Appellant’s
physical presence for the purpose of further investigation, except to seek
prior permission of the Trial Court for his interrogation.
21. In fact, given what was contended by the Appellant, it must be explicated
that Section 41A does not envisage or mandate the issuance of a notice
to an individual already in judicial custody. As such a person is already
under the court’s authority, any request to include them in an
investigation in another case must be approved by the competent court.
The CBI has thus followed the procedure which is contemplated in terms
of the intent and purpose of Section 41A CrPC.
22. Contrarily, if the Appellant’s contention is taken to its logical conclusion,
it could lead to detrimental consequences. For instance, serving a notice
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upon an undertrial in jail through the Jail Superintendent, without
informing the court that placed them in judicial custody, would
effectively enable the police to arrest such individuals in a new case
without the court’s knowledge. This could result in a misuse of police
authority and a violation of the Constitutional and procedural rights
afforded to undertrials. Alternatively, when the court’s permission is
sought, it ensures the application of judicial scrutiny to assess whether
custodial interrogation is necessary and, if so, for what duration.
23. In the case in hand, the Trial Court’s approval of the CBI’s application to
interrogate the Appellant should be viewed as satisfying the essential
requirements of Section 41A, as the issuance of a formal notice through
the jail authorities would have had an adverse impact on the rights of
the Appellant. Thus, it is our considered view that the CBI complied with
the procedure encompassed within the framework of Section 41A of the
CrPC.
24. That being said, let us now address the specific contention pertaining to
the alleged violation of Section 41A(3) of the CrPC. The provision
elucidates, at the risk of reiteration, that an individual who complies with
the notice issued under Section 41A should not be arrested, unless the
police officer for reasons recorded, opines that arrest is necessary. The
vital takeaway from this provision is that while compliance with the
notice generally shields an individual from arrest, the police may still
proceed with the arrest if they conclude that it is essential and provide
duly recorded reasons for doing so.
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25. In the present case, following the interrogation, the CBI moved another
application to the Trial Court on 25.06.2024, seeking permission to
arrest the Appellant. The CBI justified the arrest on the grounds that the
Appellant had allegedly given evasive responses during questioning and
that custodial interrogation was necessary to confront him with evidence
and uncover a purported larger conspiracy involving the accused persons
in the implementation of the excise policy. The Trial Court, after
considering these reasons, allowed the CBI’s application for the
Appellant’s arrest and issued production warrants on the same day.
26. In this respect, our analysis is confined to assessing whether Section
41A(3) was violated, thereby rendering the arrest per se illegal. First, it is
trite law that there is no insurmountable hurdle in the conversion of
judicial custody into police custody by an order of a Magistrate. Thus,
there is no impediment in terms of arresting a person already in custody
for the purposes of investigation, whether for the same offence or for an
altogether different offence.3 The Appellant’s arrest by the CBI was thus
entirely permissible, in light of the Trial Court’s order dated 25.06.2024.
27. Second, Section 41A(3) allows for arrest, provided the reasons are
recorded, justifying the necessity of such a step, and the police officer is
satisfied that the individual should be arrested. In this context, we have
already noted that the CBI, in their application dated 25.06.2024, clearly
recorded the reasons as to why they deemed the Appellant’s arrest
necessary. These reasons were also summarized in the arrest memo
3 Central Bureau of Investigation v. Anupam J. Kulkarni, (1992) 3 SCC 141.
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dated 26.06.2024. It is important to clarify that our current analysis is
limited to verifying whether the CBI followed the correct procedure,
including the recording of sufficient reasons. This issue would not detain
us further, as the reasons as to why the Appellant’s arrest was
necessitated are discernible from the CBI’s application dated
25.06.2024.
28. Third, Section 41A(1), when read with Section 41A(3) CrPC, does not
impose an absolute prohibition on the arrest of an individual against
whom there exists reasonable suspicion of having committed a
cognizable offence punishable with imprisonment up to seven years. This
is evident from the language of the provision itself. Section 41A(3)
explicitly states that an arrest is permissible if the police officer believes
it to be necessary and duly records the reasons for such arrest. This
provision thus essentially carves out an exception to the general rule
under Section 41A, which mandates that an individual whose
appearance is required should not be arrested under Section 41(1) of the
CrPC.
29. Therefore, in view of these considerations, we do not find any merit in
the Appellant’s contention that the CBI failed to comply with Section 41A
CrPC, in its true letter and spirit.
ii. Whether Section 41(1)(b)(ii) of the CrPC is applicable?
30. At the outset, it is imperative to clarify that our analysis will be restricted
to the procedure outlined under Section 41(1)(b)(ii) of the CrPC. This is
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because Section 41(1), in its entirety, addresses multiple situations and
complexities regarding the procedure for arrest, which may not be
directly applicable to the intricacies of the present case.
31. In this vein, the language of Section 41(1)(b) postulates as follows:
“41. When police may arrest without warrant.—
(1) Any police officer may without an order from a Magistrate
and without a warrant, arrest any person—
…..
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years whether
with or without fine, if the following conditions are satisfied,
namely:—
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence;
or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
(d) to prevent such person from making any inducement, threat
or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured, and the police officer
shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of this
sub-section, record the reasons in writing for not making the
arrest.
……”
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32. Section 41(1)(b)(ii) of the CrPC clearly stipulates that an arrest under this
provision 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, with or without a fine. However, such
an arrest must be conducted subject to the satisfaction of specific
conditions outlined in subsections (a) to (e). The rigors of Section
41(1)(b)(ii) have been extensively examined by this Court in Arnesh
Kumar (supra), 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 other19 | P a g e
conditions as enumerated above is satisfied, the power of
arrest needs to be exercised. In fine, 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.”
33. Given this annotation, while there exists no doubt that the submissions
made by the Appellant in regard to the precepts of Section 41(1)(b) are
sound, the provision is inapplicable to the vicissitudes of the present
factual matrix. 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.
34. Still further, Section 41(1) opens with the expression that ‘any police
officer may arrest without an order from a Magistrate or without a
warrant’. It necessarily means that where a Magistrate has issued an
order, the police officer stands absolved form his statutory obligation of
forming an opinion. Consequently, it becomes apparent that the
variables and conditions ensconced in Section 41(1)(b)(ii) of the CrPC
would cease to apply in the present context, given the order granted by
the Trial Court prior.
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35. Lastly, we are inclined to agree with the explanation given by the Learned
ASG that the reference to Section 41(2) of the CrPC in the High Court’s
judgment appears to have been included inadvertently and is a
typographical error. Both parties, during their submissions, have rightly
clarified that Section 41(2) which pertains to the procedure of arrest in
non-cognizable offences, does not apply to the facts and circumstances
here.
36. Having considered the CBI’s compliance with Section 41A of the CrPC
and the inapplicability of Section 41(1)(b)(ii) of the CrPC, we are thus of
the view that the Appellant’s arrest does not suffer with any procedural
infirmity. Consequently, the plea regarding non-compliance of these
provisions, merits rejection. Ordered accordingly.
B. Whether the Appellant is entitled to the relief of regular bail?
37. Adverting to the question of granting bail to the Appellant, it may be
noticed that the High Court has viewed that due to the complexity and
web of facts and the material on record, it was crucial to comprehensively
determine the role of the Appellant in the alleged conspiracy and then
only decide his entitlement to bail. The High Court further observed that
considering the charge sheet had been filed before the Trial Court, the
Appellant should first seek relief from that court.
38. The evolution of bail jurisprudence in India underscores that the ‘issue
of bail is one of liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence of bail is
21 | P a g e
integral to a socially sensitised judicial process’.4 The principle has
further been expanded to establish that the prolonged incarceration of
an accused person, pending trial, amounts to an unjust deprivation of
personal liberty. This Court in Union of India v. K.A. Najeeb has
expanded this principle even in a case under the provisions of the
Unlawful Activities (Prevention) Act, 1967 (hereinafter ‘UAPA’)
notwithstanding the statutory embargo contained in Section 43-D(5) of
that Act, laying down that the legislative policy against the grant of bail
will melt down where there is no likelihood of trial being completed within
a reasonable time.5 The courts would invariably bend towards ‘liberty’
with a flexible approach towards an undertrial, save and except when the
release of such person is likely to shatter societal aspirations, derail the
trial or deface the very criminal justice system which is integral to rule
of law.
39. It was submitted during these proceedings that the FIR was registered
on 17.08.2022, and since then, the chargesheet along with four
supplementary chargesheets have been filed. The fourth supplementary
chargesheet was filed as recently as 29.07.2024 and we are informed that
the Trial Court has taken cognizance of the same. Additionally, seventeen
accused persons have been named, 224 individuals have been identified
as witnesses, and extensive documentation, both physical and digital,
4 Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.
5 Union of India v. K.A. Najeeb, AIR 2021 SC 712.
22 | P a g e
has been submitted. These factors suggest that the completion of the
trial is unlikely to occur in the immediate future.
40. In our considered view, although the procedure for the Appellant’s arrest
meets the requisite criteria for legality and compliance, continued
incarceration for an extended period pending trial would infringe upon
established legal principles and the Appellant’s right to liberty, traceable
to Article 21 of our Constitution. The Appellant has been granted interim
bail by this Court in the ED matter on 10.05.2024 and 12.07.2024,
arising from the same set of facts. Additionally, several co-accused in
both the CBI and ED matters have also been granted bail by the Trial
Court, the High Court, and this Court in separate proceedings.
41. So far as the apprehension of the Appellant influencing the outcome of
the trial is concerned, it seems that all evidence and material relevant to
the CBI’s disposition is already in their possession, negating the
likelihood of tampering by the Appellant. Similarly, given the Appellant’s
position and his roots in the society, there seems to be no valid reason
to entertain the apprehension of his fleeing the country. In any case, in
order to assuage the apprehensions of the CBI, we may impose stricter
bail conditions. As regard to Appellant indulging in influencing
witnesses, it needs no emphasis that in the event of any such instance,
it will amount to misuse of the concession of bail and necessary
consequences will follow.
23 | P a g e
42. Therefore, in the light of these extenuating circumstances and
considering the foregoing analysis, it could be resolved that the Appellant
satisfies the requisite triple conditions for the grant of bail. We order
accordingly.
C. Whether the filing of a chargesheet is a change in circumstances
warranting relegation to the trial court for grant of regular bail?
43. It is true that generally the Trial Court should consider the prayer
seeking bail once the chargesheet is filed, since the material that an
Investigating Authority may have been able to procure would
undoubtedly facilitate that court to form a prima facie opinion with
regard to (i) the gravity of offence; (ii) the degree of involvement of the
applicant; (iii) the background and vulnerability of the witnesses; (iv) the
approximate timeline for conclusion of the trial based on the number of
witnesses; and (v) the societal impact of granting or denying bail.
However, there can be no straitjacket formula which enumerates that
every case concerning the consideration of bail should depend upon the
filing of a chargesheet. In fact, each case ought to be assessed on its own
merits, recognizing that no one-size fits all formula exists for determining
bail.
44. An undertrial thus should, ordinarily, first approach the Trial Court for
bail, as this process not only provides the accused an opportunity for
initial relief but also allows the High Court to serve as a secondary
avenue if the Trial Court denies bail for inadequate reasons. This
approach is beneficial for both the accused and the prosecution; if bail
24 | P a g e
is granted without proper consideration, the prosecution too can seek
corrective measures from the High Court.
45. However, superior courts should adhere to this procedural recourse from
the outset. If an accused approaches the High Court directly without first
seeking relief from the Trial Court, it is generally appropriate for the High
Court to redirect them to the Trial Court at the threshold. Nevertheless,
if there are significant delays following notice, it may not be prudent to
relegate the matter to the Trial Court at a later stage. Bail being closely
tied to personal liberty, such claims should be adjudicated promptly on
their merits, rather than oscillating between courts on mere procedural
technicalities.
46. This issue is however, more or less academic in the instant case as the
High Court did not relegate the Appellant to the Trial Court at the
preliminary stage. Since notice was issued and the parties were
apparently heard on merits by the High Court, we do not deem it
necessary at this stage to relegate the Appellant to the Trial Court even
though filing of a chargesheet is a change in the circumstances.
CONCLUSION:
47. We, thus, deem it appropriate to pass the following order:
i. The Criminal Appeal challenging the legality of arrest (arising out of
SLP (Crl.) No. 10991/2024) is, hereby, dismissed.
25 | P a g e
ii. The Criminal Appeal (arising out of SLP (Crl.) No. 11023/2024) isallowed and the impugned judgement of the High Court dated
05.08.2024, to that extent is set aside. Consequently,
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
26 | P a g e
f. the Appellant shall fully cooperate with the Trial Court for
expeditious conclusion of the trial proceedings.
48. Pending applications, if any, shall stand disposed of in the above terms.
49. Ordered accordingly.
………..………………… J.
(SURYA KANT)
NEW DELHI
DATED: 13.09.2024
27 | P a g e
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.3816 OF 2024
@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 11023 OF 2024
ARVIND KEJRIWAL APPELLANT(S)
VERSUS
CENTRAL BUREAU OF INVESTIGATION RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.3817 OF 2024
@ SPECIAL LEAVE PETITION (CRIMINAL) No. 10991 OF 2024
JUDGMENT
UJJAL BHUYAN, J.
I have gone through the draft judgment of my
esteemed senior colleague Justice Surya Kant. I am in complete
agreement with the conclusion and direction of his Lordship that
the appellant should be released on bail. However, on the
necessity and timing of the arrest, I have a definite point of view.
2
Therefore, I deem it appropriate to render a separate opinion on
the point of necessity and timing of the arrest of the appellant
while concurring with the opinion of Justice Surya Kant that the
appellant should be released on bail.
2. Leave granted.
3. At the outset, a brief recital of the relevant dates and
the attending facts as borne out from the record may be noted.
3.1. A case was registered by the CBI on 17.08.2022 being
RC No. 0032022A0053 under Section 120B read with Section
477A of IPC and Section 7 of the PC Act. The aforesaid case was
registered on the basis of source information as well as on the
basis of a written complaint received from Shri Praveen Kumar
Rai, Director, Ministry of Home Affairs, Government of India
dated 22.07.2022. This letter also conveyed complaint dated
20.07.2022 of Shri Vinay Kumar Saxena, Lieutenant Governor of
the Government of National Capital Territory of Delhi. The
complaint sought for enquiry into the irregularities and
manipulation in the framing and implementation of the excise
policy of the Government of National Capital Territory of Delhi
(GNCTD) for the year 202122. The precise allegation is that the
3
accused persons had deliberately tweaked and manipulated the
excise policy of 202122 which resulted in enhanced profit of the
liquor manufacturers, wholesalers and retailers in lieu of illegal
gratification received by the accused persons from what is called
the “south group” to meet the election related expenses of the
Aam Admi Party at Goa.
3.2. On 14.04.2023, appellant received summons under
Section 160 Cr.P.C. from the CBI to appear before it on
16.04.2023. In compliance thereto, appellant appeared before the
CBI on 16.04.2023. According to the appellant, he was
questioned by the CBI for about 9 to 10 hours.
3.3. CBI filed a total of four chargesheets wherein 17
persons were named as accused. Manish Sisodia and Kavitha
Kalvakuntala were named as accused amongst others. Appellant
Shri Arvind Kejriwal was not named as an accused in the said
chargesheets. The gist of the chargesheets is that the excise
policy in question was a result of criminal conspiracy which was
hatched by a cartel of liquor manufacturers, wholesalers and
retailers ensuring undue gain to them in lieu of pecuniary
4
benefits to the accused persons. Such criminal conspiracy
resulted in huge loss to the government exchequer.
3.4. Fifth and final chargesheet has been filed by the CBI
on 29.07.2024 wherein appellant has been named as an accused.
4. Directorate of Enforcement or ED recorded ECIR No.
HIUII/14/2022 on 22.08.2022 under the Prevention of Money
Laundering Act, 2005 (PMLA) on the basis of the offences under
which the CBI case was registered. Thus, the offences under the
CBI case became the predicate offence leading to investigation by
the ED under PMLA. ED filed the first prosecution complaint on
26.11.2022 in respect of which the Special Court took cognizance
on 20.12.2022. ED has since then filed seven supplementary
prosecution complaints. In the last supplementary prosecution
complaint filed on 17.05.2024, appellant has been named as an
accused.
4.1. According to ED, several notices under Section 50 of
PMLA were issued to the appellant for his examination and
recording of statement but he failed to appear and join the
investigation. However, according to the appellant, the notices
issued under Section 50 were illegal, bad in law and invalid.
5
5. Be that as it may, appellant was arrested by the ED on
21.03.2024. Appellant challenged his arrest before the High
Court by filing a petition under Article 226 of the Constitution of
India read with Section 482 Cr.P.C. However, the same was
dismissed by the High Court on 09.04.2024.
6. It is stated that the competent authority accorded
permission under Section 17A of the PC Act on 23.04.2024
whereafter CBI proceeded to investigate the role of the appellant
in the CBI case. However, it is not mentioned as to when such
permission was sought for.
7. In so far arrest of the appellant in the PMLA case is
concerned, appellant carried his challenge from the High Court to
this Court. On 10.05.2024, this Court granted interim bail to the
appellant till 02.06.2024 in Criminal Appeal No. 2493 of 2024 in
view of the ongoing Lok Sabha elections. On completion of the
period of interim bail, appellant surrendered and was taken back
into custody.
8. On 20.06.2024, appellant was granted regular bail by
the learned Special Judge in the ED case. This bail order was
challenged by the ED before the High Court which stayed the bail
6
order on 21.06.2024 on an oral mentioning. A detailed order
staying the bail of the appellant in the ED case was pronounced
by the High Court only on 25.06.2024.
9. CBI sought for custody of the appellant so as to
interrogate him. Application filed by the CBI in this regard under
Section 41A Cr.P.C. was allowed by the learned Special Judge on
24.06.2024.
10. It is stated that CBI interrogated the appellant in Tihar
Jail on 25.06.2024 for 3 hours but according to the CBI, he did
not furnish satisfactory reply to the questions put to him. His
reply was found to be evasive.
11. At around the same time the High Court stayed the
bail of the appellant in the PMLA case, on 25.06.2024 CBI sought
for permission of the learned Special Judge to formally arrest the
appellant in the CBI case. On production of the appellant before
the learned Special Judge on 26.06.2024, appellant was formally
arrested and remanded to CBI custody till 29.06.2024 by the
learned Special Judge. In the arrest memo dated 26.06.2024, CBI
mentioned in column 7 that it had explained the grounds of
7
arrest to the appellant. The grounds of arrest were mentioned as
under:
He is not cooperating with the investigation and
concealing the true facts even after being
confronted with evidences gathered during the
investigation so far and also the facts which are
exclusively in his knowledge and relevant for the
purpose of the investigation to reach to the just
conclusion of the case. He is trying to purposely
derail the investigation. He may influence the
witnesses.
11.1. In the remand application, CBI mentioned in
paragraph 17 that appellant was examined/interrogated in Tihar
Jail on 25.06.2024. During his interrogation he remained evasive
and noncooperative, failing to give satisfactory replies to the
questions put to him regarding his role in the conspiracy. CBI
mentioned as under:
That Arvind Kejriwal was
examined/interrogated in Tihar Jail on
25.06.2024. During his interrogation, he
remained evasive and noncooperative, failing
to give satisfactory replies to the questions
raised to him regarding his role in the matter of
demand of upfront money of Rs. 100 Crores
8from coaccused persons of South Group, the
acceptance and delivery of the same to Aam
Aadmi Party through his close associate Vijay
Nair as well as utilization of the illgotten
money so received in the Assembly Elections of
Goa during the year 202122 to meet the
election related expenditures of Aam Aadmi
Party. He further gave evasive replies regarding
his role and the role of other coaccused in
respect of criminal conspiracy hatched. His
replies are contrary to the oral and
documentary evidence gathered by CBI during
the investigation. He is not disclosing the facts
truthfully, despite being confronted with the
incriminating evidence and also concealing the
vital facts, which are exclusively in his
knowledge. These facts are relevant for the
purpose of the investigation to reach to the just
conclusion of the case.
11.2. On 29.06.2024, learned Special Judge remanded the
appellant to judicial custody till 12.07.2024.
12. Criminal Appeal No. 2493 of 2024 was heard by this
Court in the meanwhile. On 12.07.2024, a detailed judgment was
passed. A bench of two Hon’ble Judges of this Court framed the
9following three questions of law for consideration by a larger
bench:
(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 PML Act?
(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?
(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”?
12.1. While making the reference as above, the bench
observed that right to life and liberty is sacrosanct. Appellant had
suffered incarceration of over 90 days. The above questions
referred to a larger bench would require in depth consideration.
Therefore, appellant was directed to be released on interim bail in
connection with ECIR No. HIUII/14/2022 dated 22.08.2022 on
the same terms which were imposed earlier while granting
temporary bail on 10.05.2024.
10
13. CBI filed its final chargesheet naming the appellant for
the first time as an accused on 29.07.2024.
14. Appellant filed Bail Application No. 2285/2024 before
the High Court under Section 439 of Cr.P.C. seeking regular bail
in the CBI case. On 05.07.2024, a learned Judge of the High
Court issued notice. Thereafter, arguments were heard on interim
bail on 17.07.2024. However, the case was directed to be listed
again on 29.07.2024 at 03:00 PM. On 29.07.2024, arguments
were heard and the judgment was reserved.
14.1. Seven days thereafter the judgment was delivered on
05.08.2024. Without deciding the bail application on merit, the
High Court disposed of the same giving liberty to the appellant to
approach the Court of Special Judge for regular bail saying that
such a course of action would be more beneficial to the appellant.
15. From the narration of facts as noted above, it is seen
that CBI had registered its case RC No. 0032022A0053 on
17.08.2022. A total of four chargesheets were filed by CBI in the
case naming 17 persons as accused. Appellant Arvind Kejriwal
was not named as an accused in those chargesheets.
11
16. In the meanwhile, ED recorded ECIR No. HIU
II/14/2022 under PMLA on 22.08.2022. ED filed seven
complaints under PMLA. In none of the above complaints,
appellant was named as an accused. However, appellant was
arrested by the ED in the PMLA case on 21.03.2024.
17. On 20.06.2024, appellant was granted regular bail by
the learned Special Judge in the ED case. On oral mentioning,
this bail order was stayed by the High Court on 21.06.2024.
18. It was thereafter that CBI sought for custody of the
appellant in the CBI case which was allowed by the learned
Special Judge on 24.06.2024.
19. Finally, this Court granted interim bail to the
appellant in the PMLA case on 12.07.2024.
20. CBI filed the fifth and final chargesheet in the CBI case
on 29.07.2024 wherein appellant has been named as an
accused.
21. Since appellant’s arrest by the ED, bail granted by the
learned Special Judge and stay of bail by the High Court in the
PMLA case are subject matter of parallel proceedings where
appellant has been granted interim bail by this Court, I would
12
refrain from commenting thereon. Therefore, I will confine this
opinion only to two aspects: arrest of the appellant and the
judgment of the High Court.
Arrest of the appellant by the CBI: necessity and timing
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.
13
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
14
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
15
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.
26. That apart, the apprehension of tampering with the
evidence or influencing witnesses has already been answered by
this Court in the case of Manish Sisodia in the following manner:
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of tampering
the evidence is concerned, it is to be noted that the
case largely depends on documentary evidence
which is already seized by the prosecution. As
such, there is no possibility of tampering with the
evidence. Insofar as the concern with regard to
influencing the witnesses is concerned, the said
concern can be addressed by imposing stringent
conditions upon the appellant.
27. Power to arrest is one thing but the need to arrest is
altogether a different thing. Just because an investigating agency
has the power to arrest, it does not necessarily mean that it
16
should arrest such a person. In Joginder Kumar Vs. State of U.P.1,
a threeJudge bench of this Court examined the interplay of
investigation and arrest. Referring to the third report of the
National Police Commission, this Court declared that no arrest
can be made just because it is lawful for police officers to do so.
The existence of the power of arrest is one thing but justification
for the exercise of it is quite another. It was held as under:
20. …….No arrest can be made because it is
lawful for the police officer to do so. The
existence of the power to arrest is one thing.
The justification for the exercise of it is quite
another. The police officer must be able to
justify the arrest apart from his power to do so.
Arrest and detention in police lockup of a
person can cause incalculable harm to the
reputation and selfesteem of a person. No
arrest can be made in a routine manner on a
mere allegation of commission of an offence
made against a person. It would be prudent for
a police officer in the interest of protection of
the constitutional rights of a citizen and
perhaps in his own interest that no arrest
should be made without a reasonable
satisfaction reached after some investigation as
1 (1994) 4 SCC 260
17
to the genuineness and bona fides of a
complaint and a reasonable belief both as to
the person’s complicity and even so as to the
need to effect arrest. Denying a person of his
liberty is a serious matter. The
recommendations of the Police Commission
merely reflect the constitutional concomitants
of the fundamental right to personal liberty and
freedom. A person is not liable to arrest merely
on the suspicion of complicity in an offence.
There must be some reasonable justification in
the opinion of the officer effecting the arrest
that such arrest is necessary and justified.
Except in heinous offences, an arrest must be
avoided if a police officer issues notice to person
to attend the Station House and not to leave the
Station without permission would do.
28. In the case of Sidhartha Vashisht alias Manu Sharma
Vs. State (NCT of Delhi)2, this Court emphasized that investigation
must be fair and effective. Investigation should be conducted in a
manner so as to draw a just balance between a citizen’s right
under Articles 19 and 21 of the Constitution of India and the
expansive power of the police to make investigation. Concept of
fair investigation and fair trial are concomitant to preservation of
2 (2010) 6 SCC 1
18
the fundamental right of the accused under Article 21 of the
Constitution of India.
29. This Court in the case of Arnesh Kumar Vs. State of
Bihar3, while examining the provisions of Sections 41 and 41A
Cr.P.C. observed that arrest brings humiliation, curtails freedom
and cast scars forever. This Court, while emphasizing the need to
sensitize the police against highhanded arrest, deprecated the
attitude to arrest first and then to proceed with the rest. While
emphasizing that police officers should not arrest the accused
unnecessarily and that the Magistrate should not authorize
detention casually and mechanically, this Court observed as
follows:
5. Arrest brings humiliation, curtails
freedom and casts scars forever. Lawmakers
know it so also the police. There is a battle
between the lawmakers and the police and it
seems that the police has not learnt its lesson:
the lesson implicit and embodied in CrPC. It
has not come out of its colonial image despite
six decades of Independence, it is largely
considered as a tool of harassment, oppression
and surely not considered a friend of public.
The need for caution in exercising the drastic
3 (2014) 8 SCC 273
19power of arrest has been emphasized time and
again by the courts but has not yielded desired
result. Power to arrest greatly contributes to
its arrogance so also the failure of the
Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of
police corruption. The attitude to arrest first
and then proceed with the rest is despicable. It
has become a handy tool to the police officers
who lack sensitivity or act with oblique motive.
30. Again in the case of Mohd. Zubair Vs. State (NCT of
Delhi)4, a threeJudge Bench of this Court once again emphasized
that the existence of the power of arrest must be distinguished
from the exercise of the power of arrest. The exercise of the power
of arrest must be pursued sparingly. This Court reiterated the
role of the courts in protecting personal liberty and ensuring that
investigations are not used as a tool of harassment. Referring to
its earlier decision in Arnab Ranjan Goswami Vs. Union of India 5,
this Court observed that the courts should be alive to both ends
of the spectrum: the need to ensure proper enforcement of
criminal law on the one hand and the need to ensure that the
law does not become a ruse for targeted harassment on the other
4 (2022) SCC Online SC 897
5 (2020) 14 SCC 12
20
hand. Courts must ensure that they continue to remain the first
line of defence against the deprivation of liberty of the citizens.
Deprivation of liberty even for a single day is one day too many.
31. When the CBI did not feel the necessity to arrest the
appellant for 22 long months, I fail to understand the great hurry
and urgency on the part of the CBI to arrest the appellant when
he was on the cusp of release in the ED case. The substantive
charge against the appellant is under Section 477A IPC which
deals with falsification of accounts and if convicted carries a
punishment of imprisonment for a term which may extend to
seven years or with fine or with both. The appellant has also
been charged under Section 7 of the PC Act which deals with
offence relating to a public servant being bribed. Here the
punishment, if convicted, is 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. Without entering into the
semantics of applicability of Section 41(1)(b)(ii) and Section 41A
Cr.P.C. as explained by this Court in Arnesh Kumar (supra),
timing of the arrest of the appellant by the CBI is quite suspect.
21
32. CBI is a premier investigating agency of the country. It
is in public interest that CBI must not only be above board but
must also be seem to be so. Rule of law, which is a basic feature
of our constitutional republic, mandates that investigation must
be fair, transparent and judicious. This Court has time and again
emphasized that fair investigation is a fundamental right of an
accused person under Articles 20 and 21 of the Constitution of
India. Investigation must not only be fair but must be seem to be
so. Every effort must be made to remove any perception that
investigation was not carried out fairly and that the arrest was
made in a highhanded and biased manner.
33. In a functional democracy governed by the rule of law,
perception matters. Like Caesar’s wife, an investigating agency
must be above board. Not so long ago, this Court had castigated
the CBI comparing it to a caged parrot. It is imperative that CBI
dispel the notion of it being a caged parrot. Rather, the
perception should be that of an uncaged parrot.
Impugned order
34. Let me now deal with the impugned judgment and
order of the High Court whereby the bail application of the
22
appellant was disposed of. Appellant had filed Bail Application
No. 2285 of 2024 before the High Court under Section 439
Cr.P.C. in the CBI case where he was taken into custody on
26.06.2024. On 05.07.2024, a learned Judge of the High Court
issued notice, fixing 17.07.2024 for arguments. On 17.07.2024,
arguments were heard on interim bail; thereafter, the case was
directed to be listed on 29.07.2024 at 03:00 PM. On 29.07.2024,
arguments were heard and the judgment was reserved. Finally,
the judgment was pronounced on 05.08.2024, the relevant
portion of which reads as under:
5. Though there is no quarrel about the
proposition that the District Courts and this
Court have concurrent jurisdiction, as has been
held in the Judgments relied on behalf of the
appellant, but at the same time it has been held
time and again by the Apex Court that the Party
must first approach the Court of first instance.
6. In the present case, it is more in the benefit
of the appellant, considering the complexity and
the web of the facts and the material on record,
to comprehensively determine the role of the
appellant in this alleged conspiracy to determine
if he is entitled to bail. It may also be noted that
when the Bail Application was filed before this
23Court, the chargesheet had not been filed.
However, in the changed circumstances, when
the chargesheet has already got filed before the
learned Special Judge, it would be in the benefit
of the appellant, to first approach the Court of
Sessions Judge.
7. In these circumstances, this Bail
Application is hereby disposed of with the liberty
to the appellant to approach the learned Special
Judge for regular bail.
34.1. After observing that it would be more to the benefit of
the appellant if the appellant approaches the learned Special
Judge first for bail more so when the chargesheet has been filed,
the High Court relegated the appellant to the forum of the
learned Special Judge though both the Court of the Special
Judge and the High Court have concurrent jurisdiction in the
matter.
35. If indeed the High Court thought of remanding the
appellant to the forum of the Court of Special Judge, it could
have done so at the threshold itself. After issuing notice, after
hearing the parties at length and after reserving the judgment for
about a week, the above order was passed by the High Court.
24
Though couched in a language which appears to be in favour of
the appellant, in practical terms it has only resulted in
prolonging the incarceration of the appellant for a far more longer
period impacting his personal liberty.
36. In somewhat similar circumstances, this Court in
Kanumuri Raghurama Krishnam Raju Vs. State of A.P. 6, after
observing that jurisdiction of the trial court as well as of the High
Court under Section 439 Cr.P.C. is concurrent, held that merely
because the High Court was approached by the appellant without
approaching the trial court would not mean that the High Court
could not have considered the bail application of the appellant.
In the facts of that case, this Court opined that the High Court
ought to have considered the bail application of the appellant on
merit and decided the same. However, having regard to the fact
that much time had lapsed since passing of the order of the High
Court and there were subsequent medical reports of the
appellant, this Court did not relegate the appellant back to the
High Court but considered the bail application of the appellant
on merit herein itself. This Court held thus:
6 (2021) 13 SCC 822
25
14. The jurisdiction of the trial court as well as
the High Court under Section 439 of the Code of
Criminal Procedure, 1973 is concurrent and merely
because the High Court was approached by the
appellant without approaching the trial court
would not mean that the High Court could not
have considered the bail application of the
appellant. As such, in our view, the High Court
ought to have considered the bail application of the
appellant on merits and decided the same.
However, since the High Court has not considered
the matter on merits and much water has flown
since the passing of the order of the High Court, as
now there are two medical reports of the appellant,
one by the government hospital on the direction of
the High Court and the other by Army Hospital on
the directions of this Court, we deem it fit and
proper to consider the bail application of the
appellant on merits.
37. Mr. Raju, learned Additional Solicitor General of India,
while supporting the order of the High Court vehemently argued
that the appellant has to first approach the trial court for bail
though under Section 439 Cr.P.C. both the Special Court and the
High Court have concurrent jurisdiction. No special privilege
should be shown or granted to the appellant. I am afraid such a
26
submission cannot be accepted. In this regard, I am in respectful
agreement with the view taken by this Court in Kanumuri
Raghurama Krishnam Raju. That apart, when the appellant has
been granted bail under the more stringent provisions of PMLA,
further detention of the appellant by the CBI in respect of the
same predicate offence has become wholly untenable. In such
circumstances, asking the appellant or relegating the appellant
to approach the trial court, then to the High Court and then to
this Court for a fresh round of bail proceedings in the CBI case
after he had already traversed the same route in the PMLA case
would be nothing but a case of procedure triumphing the cause
of justice. In this connection, it would be apt to refer to the
observations of this Court in the case of Manish Sisodia Vs. CBI,
Criminal Appeal No. 3296 of 2024, decided on 09.08.2024:
32. It could thus be seen that this Court had granted
liberty to the appellant to revive his prayer after filing of
the chargesheet. Now, relegating the appellant to again
approach the trial court and thereafter the High Court
and only thereafter this Court, in our view, would be
making him play a game of “Snake and Ladder”. The
trial court and the High Court have already taken a view
and in our view relegating the appellant again to the
trial court and the High Court would be an empty
27formality. In a matter pertaining to the life and liberty of
a citizen which is one of the most sacrosanct rights
guaranteed by the Constitution, a citizen cannot be
made to run from pillar to post.
37.1. Manish Sisodia is a coaccused in the same CBI case
and the ED case. His second bail application was rejected by the
trial court on 30.04.2024 after taking about three months’ time
to decide the same. When Sisodia moved the High Court for bail,
the same also came to be rejected on 21.05.2024. It was
thereafter that Manish Sisodia approached this Court in the
second round. In the hearing which took place on 04.06.2024,
the learned Solicitor General for India made a statement before
the Court that investigation would be concluded and final
complaint as well as chargesheet would be filed in both the ED
and CBI cases on or before 03.07.2024. On the basis of the above
statement of the learned Solicitor General, this Court disposed of
the two criminal appeals of Shri Manish Sisodia with liberty to
him to revive his prayer afresh after filing of final complaint and
chargesheet. When Shri Sisodia approached this Court for bail
after the complaint and the chargesheet were filed, Mr. Raju
learned Additional Solicitor General of India appearing for the ED
28as well as the CBI contended that Shri Sisodia should again
approach the trial court for regular bail as in the interregnum,
the complaint and the chargesheet were filed. Such submission
of Mr. Raju was rejected by this Court. Adverting to the earlier
order of this Court dated 04.05.2024, this Court in Manish
Sisodia observed as under:
33. ……..It will be a travesty of justice to
construe that the carefully couched order
preserving the right of the appellant to revive
his prayer for grant of special leave against the
High Court order, to mean that he should be
relegated all the way down to the trial court.
The memorable adage, that procedure is a hand
maiden and not a mistress of justice rings
loudly in our ears.
38. This Court in Gudikanti Narasimhulu Vs. Public
Prosecutor7, had highlighted that bail is not to be withheld as a
punishment. The requirement as to bail is merely to secure the
attendance of the prisoner at trial. This Court in Manish Sisodia
referred to and relied upon the aforesaid decision and reiterated
the salutary principle that bail is the rule and jail is the
exception. This Court has observed that even in straightforward
7 (1978) 1 SCC 240
29
open and shut cases, bail is not being granted by the trial courts
and by the High Courts. It has been held as under:
53. The Court further observed that, over a
period of time, the trial courts and the High Courts
have forgotten a very wellsettled principle of law
that bail is not to be withheld as a punishment.
From our experience, we can say that it appears
that the trial courts and the High Courts attempt
to play safe in matters of grant of bail. The
principle that bail is a rule and refusal is an
exception is, at times, followed in breach. On
account of nongrant of bail even in straight
forward open and shut cases, this Court is flooded
with huge number of bail petitions thereby adding
to the huge pendency. It is high time that the trial
courts and the High Courts should recognize the
principle that “bail is rule and jail is exception”.
39. Bail jurisprudence is a facet of a civilised criminal
justice system. An accused is innocent until proven guilty by a
competent court following the due process. Hence, there is
presumption of innocence. Therefore, this Court has been
reiterating again and again the salutary principle that bail is the
rule and jail is the exception. As such, the courts at all levels
30
must ensure that the process leading to and including the trial
does not end up becoming the punishment itself.
40. This Court has emphasized and reemphasized time
and again that personal liberty is sacrosanct. It is of utmost
importance that trial courts and the High Courts remain
adequately alert to the need to protect personal liberty which is a
cherished right under our Constitution.
41. That being the position and having regard to the
discussions made above, I am of the unhesitant view that the
belated arrest of the appellant by the CBI is unjustified and the
continued incarceration of the appellant in the CBI case that
followed such arrest has become untenable.
42. In the circumstances, the judgment and order of the
High Court dated 05.08.2024 in W.P.(Crl.) No. 1939 of 2024 is
clarified to the above context while the judgment and order of the
High Court dated 05.08.2024 in Bail Application No. 2285 of
2024 is set aside.
43. Consequently, it is directed that the appellant shall be
released on bail forthwith in the CBI case i.e. RC No.
0032022A0053 dated 17.08.2022. In so far bail conditions are
31
concerned, this Court in the ED case i.e. in Criminal Appeal No.
2493 of 2024 has imposed several terms and conditions including
clauses (b) and (c) vide the orders dated 10.05.2024 and
12.07.2024 which have been incorporated in clause (d) of
paragraph 47(ii) of the judgment delivered by Justice Surya Kant.
Though I have serious reservations on clauses (b) and (c) which
debars the appellant from entering the office of Chief Minister and
the Delhi Secretariat as well as from signing files, having regard to
judicial discipline, I would refrain from further expressing my
views thereon at this stage since those conditions have been
imposed in the separate ED case by a two judge bench of this
Court.
44. Both the appeals are accordingly disposed of.
………………………………J.
[UJJAL BHUYAN]
NEW DELHI;
SEPTEMBER 13, 2024.
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.3816 OF 2024
(Arising out of SLP(Crl.)No.11023/2024)
ARVIND KEJRIWAL … APPELLANT
Versus
CENTRAL BUREAU OF INVESTIGATION … RESPONDENT
WITH
CRIMINAL APPEAL No.3817 OF 2024
(Arising out of SLP(Crl.)No.10991/2024)
O R D E R
1. Leave granted.
2. In view of the separate order passed by Hon’ble Mr.Justice
Ujjal Bhuyan, however, there being a concurrent opinion that the
appellant is entitled to be released on bail, subject to the terms
and conditions mentioned in para 47 of the order, authored by
Hon’ble Mr.Justice Surya Kant, the Criminal Appeal challenging the
legality of arrest (arising out of SLP(Crl.)No.10991/2024 is
dismissed, the Criminal Appeal arising out of
SLP(Crl.)No.11023/2024 is allowed and while setting aside the
impugned judgment of the High Court dated 05.08.2024, the appellant
is directed to 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
2
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.
…………………….J.
(SURYA KANT)
…………………….J.
(UJJAL BHUYAN)
NEW DELHI
DATED: 13.09.2024