Today, the Supreme Court has granted bail to the Delhi Chief Minister and Aam Aadmi Party Leader, Arvind Kejariwal who was arrested by Central Board of Investigation (CBI) for the alleged offence irregularities, falsification, undue advantage, and a conspiracy among the persons holding positions of responsibility within the Government of National Capital Territory of Delhi (GNCTD), in framing and implementing the Excise Policy for the year 2021-2022.
The matter was heard by a division bench of Justice Surya Kant and Justice Ujjal Bhuyan.
Observations By Justice Ujjal Bhuyan
Here are the key observations of Justice Ujjal Bhuyan:
- Bail Is Not To Be Withheld As A Punishment
Justice Ujjal Bhuyan while relying on the judgement in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor has held 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. The court has reiterated that the salutary principle that bail is the rule and jail is the exception. The Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts.
- Accused Innocent Until Proven Guilty
Justice Bhuyan observed that bail jurisprudence is 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 a presumption of innocence. Therefore, the 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 must ensure that the process leading to and including the trial does not end up becoming the punishment itself.
- Personal Liberty Is Sacrosanct
Justice Bhuyan held 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.
- Belated Arrest By CBI Unjustified
Justice Bhuyan while highlighting the importance of personal liberty remarked that the belated arrest of the appellant by the CBI is unjustified and the continued incarceration of the Arvind Kejriwal in the CBI case that followed arrest has become untenable.
- Refrained from expressing my views on Bail Conditions Debaring Arvind Kejriwal from entering the CM’s office
Justice Ujjal Bhuyan while granting bail in the CBI case stated that so as far bail conditions are concerned, Court in the ED case has imposed several terms and conditions including which have been incorporated in the judgement delivered by Justice Surya Kant. Though Justice Bhuyan had serious reservations on conditions debaring Delhi CM Arvind Kejriwal from entering the office of Chief Minister and the Delhi Secretariat as well as from signing files, having regard to judicial discipline, he refrain from further expressing his views since the conditions have been imposed in the separate ED case by a two judge bench of the Supreme Court.
Background
The Appellant, Arvind Kejriwal is a public representative and has been elected thrice the Chief Minister of the Government of National Capital Territory of Delhi (GNCTD). He also happens to be the National Convenor of Aam Aadmi Party, a political party in India.
The Respondent, Central Bureau of Investigation (CBI) registered an FIR 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 (hereinafter ‘Excise Policy’). However, the Appellant’s name did not figure in the FIR.
Subsequently, the Directorate of Enforcement (ED), arrested the Appellant in the purported exercise of its power under Section 19 of the Prevention of Money Laundering Act, 2002. The Court granted the Appellant interim bail on 10.05.2024, until 01.06.2024.
The Appellant surrendered before the jail authorities. The Special Judge 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 stayed the operation of that order, as a result of which, the Appellant continued to remain in jail.
CBI moved an application before the Special Judgeunder Section 41A of the CrPC, seeking to interrogate the Appellant, which was thereupon allowed. Having completed interrogation and examination, the CBI filed an application seeking permission to arrest the Appellant and for the issuance of production warrants.
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.
The Appellant 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 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.
Both the orders of the Trial Court, came to be challenged by the Appellant before the High Court by a Writ Petition seeking a declaration that his arrest was illegal.
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 arrest of the Appellant.
The High Court extensively heard the matter 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 upheld the arrest of the Appellant by the CBI and unanimously denied him regular bail, with liberty to approach the Trial Court for such relief.
The High Court upheld the arrest on three grounds.
Firstly, 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.
Secondly, the arrest was made in accordance with Section 41(2) of the CrPC.
Lastly, the plea of non-compliance with Section 41A of the CrPC was totally unsubstantiated.
The appeals were therefore filed before the Supreme Court. The appeal was restricted to 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 FIR.
Conclusion
The division bench of Justice Surya Kant and Justice Ujjal Bhuyan granted the bail on varios conditions.
Firstly, the bail was granted subject to the furnishing of the bail bonds of Rs. 10,00,000 /- with two sureties of such like amount, to the satisfaction of the Trial Court.
Secondly, the Appellant is restrained from making any public comments on the merits of the CBI case, it being pending before the Trial Court. This condition is necessitated to dissuade a recent tendency of building a self-serving narrative on public platforms. However, this shall not preclude the Appellant from raising all his contentions before the Trial Court.
Lastly, the Appellant shall remain present before the Trial Court on each and every date of hearing, unless granted exemption. The Appellant shall fully cooperate with the Trial Court for expeditious conclusion of the trial proceedings.
Case Title: Arvind Kejriwal V/S Central Bureau Of Investigation
Case No.: Special Leave to Appeal (Crl.) No(s).11023/2024
Date: 13/09/2024
Counsel For Petitioner: Dr. Abhishek Manu Singhvi, Sr. Adv.
Counsel For Respondent: Mr. Suryaprakash V. Raju, A.S.G.
