Supreme Court grants bail to Arvind Kejriwal in CBI case on Delhi excise policy

The Supreme Court on Friday granted bail to Delhi Chief Minister (CM) Arvind Kejriwal in the case registered by the Central Bureau of Investigation (CBI) in relation the corruption allegations surrounding the now scrapped Delhi excise policy of 2021-22 [Arvind Kejriwal v. Central Bureau of Investigation].A Bench of Justices Surya Kant and Ujjal Bhuyan passed the order after noting the trial of the case was unlikely to conclude in the near future.The Court said the Aam Aadmi Party (AAP) leader satisfies the triple test for bail and accordingly ordered his release."We are not relegating the appellant to the trial court," it said while granting bail to Kejriwal.However, the Court also ordered Kejriwal to not make any public comments about the matter. This condition is necessitated to dissuade a recent "tendency of building a self-serving narrative" on public platforms, it clarified.He has been asked to remain present for all hearings before trial court unless exempted from personal appearance. Pertinently, Justice Ujjal Bhuyan in his separate judgment came down upon the CBI and said that Kejriwal's arrest by the agency after her secured bail in the ED case was only to frustrate Kejriwal's release from prison."CBI did not feel the need to arrest him though he was interrogated in March 2023 and it was only after his ED arrest was stayed, CBI became active and sought custody of Kejriwal and thus no need of arrest for over 22 months. Such action by CBI raises serious question on the timing of the arrest and such an arrest by CBI was only to frustrate the bail granted in ED case," Justice Bhuyan said.He underscored that CBI must not function like a caged parrot and must be above all suspicions. "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," Justice Bhuyan said..Justice Kant said that a developed jurisprudence on bail is needed for a developed society and prolonged incarceration of accused while trial is on, cannot be justified.The Court also noted the First Information Report (FIR) was registered in August 2022 and four chargesheets have been filed. The trial court has taken cognisance and 17 accused have been named, it added..However, despite granting bail unanimously, the judges effectively differed on the legality of arrest of Kejriwal by CBI. Kejriwal had filed two separate pleas before the top court - one challenging the legality of his arrest by CBI and a second plea seeking bail.The latter was allowed by both the judges. As regards former, Justice Kant held that it was valid and in compliance with relevant procedural laws."There is no impediment in arresting a person who is already in custody for another case for purposes of investigation. CBI in their application has noted why the arrest was necessary and since there was a judicial order. There was no violation of Section 41(A)(3) of Code of Criminal Procedure," the Court stated.When a Magistrate has issued an order, the investigating agency stands absolved from giving any reason for giving any valid reasons for arrest which was what happened in the present case, it added."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," the order said.Hence, Justice Kant held that Kejriwal's arrest does not suffer from any procedural flaw and was valid.However, Justice Bhuyan differed with respect to the necessity and timing of the arrest of Kejriwal. "On the necessity and timing of arrest, I have a different point of view. Therefore, I deem it appropriate to render a separate opinion on the point of necessity and timing of arrest of the appellant while concurring with the opinion of Justice Surya Kant that the appellant should be released on bail," Justice Bhuyan said in his order. He held that the arrest was not necessary and the power of arrest should not be used for targeted harassment."It cannot be that accused is answering only as per prosecution would mean cooperation on his part and his right to remain silent does not mean being evasive and no adverse inference can be drawn from silence of accused. It will be a travesty of justice to keep Kejriwal incarcerated when he is on bail in ED case. Exercise of power of arrest must be used sparingly and it was held so in Mohd Zubair case. In Arnab Goswami case, it was held that law cannot be used for targeted harassment," Justice Bhuyan said in his separate order.In this case, the CBI had arrested Kejriwal to frustrate the bail procured in ED case, it was stated.Even on the date of his arrest by the CBI on June 26. 2024, Kejriwal was not named as an accused by the CBI and it was only in the last chargesheet filed by the CBI on July 29, 2024 that Kejriwal has been named as an accused, Justice Bhuyan noted.Despite this difference of opinion, the two judges concurred in their eventual conclusion and agreed to dismiss the plea challenging the legality of the arrest while allowing the bail plea..The Delhi High Court had on August 5 rejected Kejriwal's petition against his arrest and asked him to approach trial court for bail. The dismissal 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 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 first arrested in the matter by the ED on March 21.He was later granted interim bail by the Supreme Court in the ED case.However, despite this interim bail order, he continued 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.He then moved the High Court directly for bail instead of moving the trial court first, which is the usual course of action adopted by accused persons.The High Court refused to grant him bail and asked him to approach the trial court first. It also rejected the plea to declare his arrest as illegal. .When the matter was heard on September 5, the CBI argued that Kejriwal should have first approached the trial court for bail instead of directly moving the Delhi High Court. The CBI also contended that Kejriwal is likely to tamper with evidence and hamper its ongoing probe in the case, if he is released on bail.Further, the central agency also claimed that the Delhi High Court will get demoralised if Kejriwal is granted bail..Other prominent leaders including AAP leaders including Manish Sisodia and Sanjay Singh were granted bail by the Supreme Court in the same case. AAP communications-in charge Vijay Nair and Bharat Rashtra Samithi leaders K Kavitha were also granted bail by the top court recently in the case..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.