"Snakes and Ladders:" Arvind Kejriwal and CBI lock horns in Supreme Court; verdict reserved

The Supreme Court on Thursday reserved its verdict in the bail plea filed by Delhi Chief Minister and Aam Aadmi Party (AAP) chief Arvind Kejriwal in connection with the case registered by the Central Bureau of Investigation (CBI) in the Delhi excise policy case [Arvind Kejriwal v Central Bureau of Investigation]..A Bench of Justices Surya Kant and Ujjal Bhuyan heard the counsel representing Kejriwal and CBI at length before reserving its verdict..Both Kejriwal and the CBI were at loggerheads today over whether the bail matter should be first heard by trial court.Contrary to the usual course of first moving the trial court, Kejriwal had directly approached the Delhi High Court for bail. The High Court had rejected his plea prompting the appeal before the top court.During the hearing today before the top court, Additional Solicitor General (ASG) SV Raju, appearing for CBI, adverted to this and said that the matter should be first heard by the trial court."He approached the High Court without going to the sessions court. This is my preliminary objection. On merits, trial court could have seen it first. High Court was made to see merits and it can only be in exceptional cases. In ordinary cases, sessions court has to be approached first," the ASG contended.Bypassing the trial court can be allowed only in exceptional circumstances and the only 'exceptional' circumstance in this case is that Kejriwal is the Chief Minister, Raju said.Senior Advocate Abhishek Manu Singhvi, appearing for Kejriwal, argued that it would not be fair to send Kejriwal 'back' to the trial court when the questions arising in the present bail case have already been extensively argued before the trial court in a related matter. "Is it a fair plea to say (go to trial court bail)? Had it not been argued on merits including on Section 41 and Section 41A fully? Before trial court also, it was argued during remand. You cannot consider sending me back there. Arguments were looked into during remand and affirmed against me. It is not fair to raise that argument now by then at this stage, there is huge delay involved since it has been heard on merits. Clear error on the face of it. I will not use the word perverse but serious error," he stated.Singhvi also highlighted the apex court's judgment in the Manish Sisodia (co-accused) case in which top court while granting bail said that it would be unfair to send Sisodia back to the trial court for bail since it would be likeplaying a game of snakes and ladders."(On) this sending back, the Supreme Court has now used a very felicitous phrase in the Sisodia judgment - snakes and ladders," Singhvi said.ASG Raju then interjected."Sisodia went to trial court once. Here how many times has he (Kejriwal)? It is not fair to look at one para like that without facts. My lords cannot be the first instance. There is a hierarchy," the ASG said."They (CBI) want the ladder to start all over again," Singhvi maintained.He underlined that Kejriwal satisfies the triple test for bail and the trial in the case is unlikely to conclude anytime soon."Multiple chargesheets filed. Prolonged incarceration cannot be there, is the triple test satisfied? Yes it is. In Manish Sisodia, the Court held that in this particular case of excise policy, trial is impossible to finish," Singhvi contended.The Court after a lengthy hearing which lasted through the day, reserved its judgment..Background.The Bench was hearing two separate pleas filed by Kejriwal - one challenging the legality of his arrest by CBI and a second plea seeking bail.The Delhi High Court had on August 5 refused Kejriwal's plea in that regard, and asked him to approach trial court for bail.This led to the instant appeal by Kejriwal before the apex court.The CBI arrested Kejriwal on June 26 while he was in judicial custody in connection with a money laundering case probed by the Enforcement Directorate (ED) in connection with the same scam.The case against Kejriwal stems from alleged irregularities in the framing of the now-scrapped Delhi excise policy of 2021-22.The case involves allegations that several Aam Aadmi Party (AAP) leaders including Kejriwal were involved in deliberately leaving loopholes in the excise policy in exchange for kickbacks from liquor lobbies. The investigation agencies have alleged that the funds garnered from this exercise were used to fund the AAP's election campaign in Goa.The case is being probed by both the CBI and the ED.Kejriwal was arrested in the matter first by the ED on March 21.He was later granted interim bail by the Supreme Court in the ED case, while the Court deliberates on larger questions concerning the Prevention of Money Laundering Act (PMLA) which are tied to the issue of whether his March 21 arrest was legal.However, despite this interim bail order, he continues to remain in jail since the CBI also formally arrested him in the case on June 26 while he was in judicial custody in connection with the ED case.Other prominent leaders including AAP leaders including Manish Sisodia and Sanjay Singh were granted bail by the Supreme Court. AAP communications-in charge Vijay Nair and Bharat Rashtra Samithi leaders K Kavitha were also granted bail by the top court recently..Hearing todaySenior Advocate Abhishek Manu Singhvi, appearing for Kejriwal, contended that this is a unique case wherein the accused has got bail under the stringent money laundering law but is in jail due to the predicate offence registered by the CBI.He said that this was an "insurance arrest" by the CBI to keep Kejriwal in prison when it was clear that he would secure bail in the money laundering case. "Something remarkable and unprecedented. This is perhaps the only case where I got two release orders under PMLA stringent law which has a bar of Section 45 from this Court and another detailed order from High Court. Then there was this insurance arrest in the predicate offence by CBI," he said.Singhvi pointed out that Kejriwal was not even named in the CBI's first information report (FIR) and that he was first arrested by the ED and not CBI."Please see the CBI FIR. I am not named. Then there is Enforcement Case Information Report (ECIR) by ED. Then comes when I was called by CBI for questioning for about 8 to 9 hours as a witness. In March 24, I am arrested by the ED and not CBI," he said..He also traced the timeline of Kejriwal's arrest and his bail in ED case. "What started in August 2023 led to arrest in March 2024. In ED case, there are two significant release orders. In one, Supreme Court noted he is not a threat to the society, and it was an interim release. It was held not a threat in a ED case. Then, the second order was a detailed order. It was a regular bail granted by trial court and was mentioned on oral mentioning by the High Court and is now pending adjudication by the High Court. Then comes the detailed order by the Supreme Court - Justice Khanna[-led Bench. Supreme Court held that bail should be granted as right to life and liberty is sacrosanct and it directed that Kejriwal be released on interim bail and it is all on Section 45 PMLA cases. Now before this, between May 10 Supreme Court judgment which granted him bail for elections and then the Supreme Court verdict of July 12 granting him interim bail, the CBI arrest took place. I go back to jail on June 2 (after bail for elections was over) and the judgment from Supreme Court is on July 12. But on June 25, this arrest takes place in CBI case even though no arrest ever happened in three years. This was a case of insurance arrest," Singhvi argued..Singhvi pointed out that Kejriwal satisfies all conditions necessary for grant of bail.He said Kejriwal is not a flight risk since he is a Constitutional functionary.The other conditions for grant of bail are that the accused should cooperate with the probe and should not tamper with evidence.In this regard, Singhvi said,"Twenty-four months have passed and four chargesheets filed in CBI case and nine in ED case. Thirteen in total. Thousands of pages of documents. No evidence can be tampered with.".Singhvi reiterated that Kejriwal got bail under the more stringent Prevention of Money Laundering Act (PMLA) but is still in prison due to the CBI case."This person was found fit for release twice, once by Supreme Court too even under higher threshold of Section 45 of PMLA," he said.Singhvi also contended that the technical safeguards before arrest under Section 41 and 41A of the Code of Criminal Procedure (CrPC) was not followed by the CBI when Kejriwal was arrested while already in jail in the ED case.Section 41 lays down conditions when a person can be arrested without a warrant and Section 41A deals with notice of appearance before the police officer in cases where an arrest is not required."No notice to me or court. This is ex parte between court and them. No application served, they filed application saying we will give the documents later. Insurance arrest surely. I am the most captive interrogatee you can find, ever. Just for insurance, you arrested! No substantial material was demonstrated before special judge to justify my arrest, grounds were vague," he said.He questioned the necessity to arrest Kejriwal since he was already in custody."How is there a necessity to arrest? You have to demonstrate something no? I was in custody," Singhvi submitted..Raju questioned the maintainability of the plea on the ground that Kejriwal directly approached the High Court after skipping the remedy before the sessions court.The Court however said, "The High Court should be decisive enough to take a call then and there. If you want to send someone to trial, then such a call has to be taken. Question of maintainability also has to be decided," Justice Kant remarked."They were put to notice and it was not that High Court decided the issue suddenly," the ASG replied. "High Court can take a call on this. It can decide matters of life and liberty," said Justice Kant. "That is what. Only because the person is influential, he can keep playing snake and ladder? When seniors of this calibre appears, High Court cannot say just go away. So they were put on notice," ASG Raju responded.The Court then questioned the delay by the High Court in passing its order."High Court took seven days to write a three-para order," Justice Bhuyan asked."The matter was heard on a holiday (muharram) because he is a privileged person and the High Court is heavily burdened with cases and sometimes they sit beyond 6 pm or so. Even the main case was argued," the ASG replied.He further argued that if the matter is first heard by the High Court, then the accused cannot later approach the trial court for bail."If you approach High Court first, then can you go back to trial court? That is why sub-section 3 has been incorporated which says if an application is filed in one court, then the other court will not entertain the same application. That is why you cannot approach a court which has concurrent jurisdiction," the ASG said."Section 397 CrPC deals with criminal revision. The other one, Section 439 CrPC deals with bail and that is why there cannot be legislative embargo and he can apply as many times as needed for bail," Justice Bhuyan said."You cannot go to High Court first and then after rejection move the trial court. The provision has to be interpreted in such a way that you move trial court (first) and then High Court. Unless there are exceptional circumstances. And the only exceptional circumstance here is that he is the Chief Minister. That cannot be the ground at all. All other'aam admis' (common man) have to go to sessions court," ASG Raju replied..On merits, the ASG argued that witness statements pointed towards how Arvind Kejriwal was the "main conspirator" in the case.He also said that there is no violation of any fundamental right of Kejriwal and hence, his arrest cannot be considered illegal."When a fundamental right is not violated, then Article 32 plea does not lie. The constitution bench has categorically held that when there is a warrant then arrest is made. His case is Sections 41 and 41A is violated. Here, Section 41 does not apply. His case is also not fundamental rights. It is also held that without a warrant, arrest can be made for proper investigation and it is to ensure evidence is not tampered or witnesses are threatened etc. Our case falls under this category," the ASG said.The ASG added that the remand application was supplied to Kejriwal and that the Pankaj Bansal judgment on communicating grounds of arrest in writing, has only prospective application. "The remand application was supplied to them and it contains detailed ground of arrest. It is an admitted position. In Pankaj Bansal's case the issue was what is the mode of communicating the grounds of arrest. Pankaj Bansal says, do not give orally grounds of arrest but give it in written. The issue arose that whether Pankaj Bansal is retrospective or prospective and it was held that it is prospective," he argued.The ASG also pointed out that while granting interim bail, the top court had not considered the bail plea on merits and the bail granted was not a regular bail.The regular plea is still pending before the High Court, it was pointed out."The special court granted regular bail and then High Court stayed it and now the matter is pending before High Court?" the Bench asked.The ASG replied in the affirmative.He maintained that there is a prima facie case against Kejriwal and that the chargesheet demonstrates his role in the case. Hence, he has not annexed chargesheet to his plea, it was contended."Without annexing chargesheet can he ask for bail? Today, the chargesheet has been filed can he ask for bail without it. He cannot. That is crucial ground. Chargesheet demonstrates in detail his role," Raju submitted.Raju added that if the Supreme Court grants bail, it will demoralise the High Court."Today if bail is granted, then it will demoralise the High Court," he stated.However, the Bench took exception to that argument."Do not say all that. Do not say that. It cannot be the submission of any lawyer," Justice Bhuyan said."Whatever order we pass, we will ensure nothing like that happens," Justice Kant weighed in. "I made this submission because High Court has not considered this on merits," the ASG replied.Singhvi then shot back by saying that if this argument is accepted, then the accused person can be kept in jail indefinitely by delaying the filing of a chargesheet."If this submission is correct, then the prosecution will decide when to file chargesheet and even after, decide when cognisance should be taken and bail is denied. This is first time in the last 75 years such a submission is made. I cannot get a copy of chargesheet till trial court takes cognisance?" he argued..As he concluded his submissions, the ASG added that there is a Punjab and Goa angle as well to this case. "There are several persons in Goa who are also involved. This is not a case where indulgence should be granted. He did not approach trial court and this exception cannot be given here," Raju asserted..Read live updates from hearing here..[Read Live Coverage].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.