New Delhi: The Supreme Court Friday granted bail to Delhi Chief Minister Arvind Kejriwal in the Delhi excise policy case.
“We direct Arvind Kejriwal to be released on bail subject to a bail bond of Rs 10 lakh,” the court said in its order. While both judges agreed to the grant of bail, they differed on key aspects, such as the necessity and timing of arrest.
A bench of Justices Surya Kant and Ujjal Bhuyan, which had previously reserved its order on 5 September, was acting on two petitions filed by Kejriwal. Besides a challenge to the Delhi High Court’s 5 August order denying Kejriwal bail, the court was also dealing with a plea filed by him seeking to quash his arrest by the Central Bureau of Investigation (CBI) under the Prevention of Corruption Act (PCA), 1988, in the excise policy case.
What Justice Kant ruled
Saying that there is “no impediment” to arresting someone, who is already in custody for another case for the objective of investigation, Justice Kant said that CBI’s arrest was necessary in this case.
Noting that there was no violation of Section 41(a)(3) of the Code of Criminal Procedure (CrPC), the court rejected the Kejriwal’s argument that this provision had not been complied with. The said provision states that if a person complies with a notice issued under Section 41A, they cannot be arrested for the offence mentioned in the notice.
Kant said that Kejriwal’s arrest had no procedural flaw, and was not just “valid”, but also necessary. However, he clarified that he wasn’t relegating Kejriwal back to the trial court, thereby rejecting CBI’s plea.
On the issue of bail, the judge said that the matter concerns liberty, justice, public safety and public treasury, while adding that prolonged incarceration of an accused cannot be justified, as reiterated by the court in several judgements, like Union of India vs K.A. Najeeb (2021), where a three-judge Supreme Court bench, comprising Justice Kant, had granted bail to an accused under the Unlawful Activities (Prevention) Act, on grounds of unreasonable delay.
Justice Kant also directed Kejriwal to refrain from visiting the CM Secretariat or signing office files. He said Kejriwal “shall not make any public comments about this case”, and be present for all hearings before the trial court unless exempted.
Saying that 17 accused persons have been named, 224 individuals identified as witnesses, and extensive documentation has been submitted, the judge added that these factors suggested the completion of trial is unlikely in the near future.
Justice Kant also said that although the procedure for Kejriwal’s arrest met the requirements for legality and compliance, “continued incarceration for an extended period pending trial would infringe upon established legal principles”, and Kejriwal’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,” he noted.
Importantly, he ruled that all the terms and conditions imposed on Kejriwal in the SC’s 12 July interim bail order will have to be adhered to. These include directions to refrain from visiting the CM Secretariat or signing office files.
What Justice Bhuyan ruled
On the other hand, Justice Bhuyan said that he did not agree with the conditions laid down by Justice Kant.
Coming down heavily on the CBI, he said, “The arrest by the CBI raises more questions than it answers. Only after his ED arrest was stayed, did the CBI become active and seek custody of Kejriwal.”
Observing that the CBI did not even feel the need to arrest him for more than 22 months, he said that such an action “raises a serious question mark on not just the timing of the arrest, but also the arrest itself”. He added that the CBI did not arrest Kejriwal for 22 months, except when “he was on the cusp of release” in the ED case.
Adding that bail is the rule and not the exception, the judge invalidated CBI’s arrest and ruled that the process of trial should not become punishment or a means to harass the accused.
Citing the law laid down by the top court in the cases of journalists Arnab Goswami and Mohammed Zubair, the court reiterated that the power of arrest must be used “sparingly”.
Referring to the “cardinal principle” of law under Article 20(3), which says that no one can be compelled to be a witness against themselves, the court said, “An accused has the right to remain silent. He cannot be compelled to make inculpatory statements against himself. No adverse inference can be drawn from the silence of the accused.”
Given this, the court pointed out that such protection applies, not just during the trial, but even at a previous stage, if an accusation has been made against him, which might result in his prosecution.
“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 Prevention of Money Laundering Act (PMLA),” the court said.
Justice Bhuyan also pointed out that while the CBI sought his custody only after the Special Judge granted him regular bail in the ED case. Given this, the court said, “Arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.”
Adding that perception matters in a functional democracy governed by the rule of law, Justice Bhuyan said, “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.”
How the issue made its way to the top court
On 26 June, Kejriwal was arrested by the CBI while he was still in the custody of the Enforcement Directorate in the money laundering case stemming from the alleged liquor policy scam. Prior to this, on 21 March, the ED had arrested him in connection with the same case.
Nearly two weeks later, a bench of Justices Sanjiv Khanna and Dipankar Datta, on 12 July, granted Kejriwal interim bail in the case registered against him under the Prevention of Money Laundering Act, while simultaneously referring his plea challenging his arrest by the ED to a larger bench.
Despite this, he could not walk free due to the CBI case against him and proceedings pending in that case.
Subsequently, a bench of Justice Swarana Kanta Sharma on 5 August affirmed the CBI’s decision to arrest Kejriwal and directed him to move the trial court for bail.
Days later, Kejriwal moved the top court on 12 August after the high court rejected his bail plea. Separately, he filed another plea for quashing his arrest by the CBI under the 1988 Act in the excise policy case.
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How it unfolded in court
Appearing on behalf of Arvind Kejriwal, senior advocate Abhishek Manu Singhvi argued that while granting bail to Bharat Rashtra Samithi leader K. Kavitha and Aam Aadmi Party’s Manish Sisodia, the court had said, “Prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.”
The 27 August ruling of the top court in Kavitha’s case, by the Gavai-Viswanathan bench, had taken into consideration that there were about 493 witnesses and documents to be examined, in the range of about 50,000 pages, and hence, the likelihood of the trial being concluded in the near future was impossible.
Singhvi also said that Kejriwal had already been granted bail three times. The trial court had granted him bail on 20 June, but this was subsequently undone by the Delhi High Court. Similarly, the top court, in May this year, had granted him bail in order to allow him to campaign for the Lok Sabha elections.
Following this, in July, interim bail was granted by the Supreme Court, saying, “Given the fact that right to life and liberty is sacrosanct, and Arvind Kejriwal has suffered incarceration of over 90 days, and that the questions referred to above require in-depth consideration by a larger Bench, we direct that Arvind Kejriwal may be released on interim bail.”
On the other hand, CBI had questioned the maintainability of Kejriwal’s pleas, and Additional Solicitor General of India, S.V. Raju, appearing for the central agency, had argued that even in the money laundering case, where he had challenged his arrest by ED, he was sent back by the apex court to the trial court.
“He seems to be an extraordinary person, who requires a different approach. When all other Aam Aadmis (common people) go to the trial court for bail, there cannot be a special treatment for anyone,” Raju had said.
Although CBI argued that the imprisoned chief minister must go to the trial court first, the top court referred to its 9 August ruling, granting bail to AAP leader and former Delhi deputy CM Manish Sisodia in the excise policy case.
A bench of Justices B.R. Gavai and K.V. Viswanathan had then ruled, “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 formality.”
The court had observed, “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.”
(Edited by Mannat Chugh)
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