Introduction
In Arvind Kejriwal v. CBI (II)[i], the Supreme Court addressed the legality of the appellant’s arrest and the Delhi High Court’s denial of bail. The appeals arose from the judgments dated 05.08.2024, where the High Court upheld the actions of the Central Bureau of Investigation (‘CBI’) and rejected the appellant’s bail application.
This case raises crucial questions regarding legal protections against unlawful arrest and individual rights in criminal proceedings. The Supreme Court’s decision has significant implications for personal liberty and the standards governing arrest and bail in economic offences in India.
Facts
In 2022, the CBI registered a first information report (‘FIR’) regarding irregularities in the 2021-2022 Excise Policy. Initially, the appellant was not named in the FIR. The CBI filed five chargesheets in total. While the first four chargesheets named 17 individuals, including Manish Sisodia, they did not name the appellant. The final chargesheet, filed on 29.07.2024, named the appellant as an accused, alleging a criminal conspiracy involving liquor manufacturers, wholesalers, and retailers, resulting in substantial financial loss to the government.
Based on this FIR, the Directorate of Enforcement (‘ED’) also initiated proceedings. The ED arrested the appellant under the Prevention of Money Laundering Act, 2002 (‘PMLA’) on 21.03.2024. While the appellant remained in jail, on 24.06.2024, the CBI filed an application under s. 41A of the Code of Criminal Procedure, 1973 (‘CrPC’) corresponding now to s. 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), to interrogate the appellant; this application was granted.
On 26.06.2024, the CBI arrested the appellant in the ED case while he was in judicial custody, following an application under s. 41A of the CrPC. After a period in police custody, he was remanded to judicial custody until 12.07.2024.
The appellant challenged his arrest by filing a writ in the High Court, seeking a declaration that the arrest was illegal. Simultaneously, he filed a bail application under s. 439 of the CrPC. On 05.08.2024, the High Court upheld the legality of the appellant’s arrest. It denied him regular bail but granted him the liberty to approach the trial court for further relief regarding bail.
The High Court upheld the arrest based on three primary grounds: (i) The provisions of s. 41(1)(b) of the CrPC, which governs arrests without a warrant, were not applicable, as the arrest was made under s. 41(2) of the CrPC, i.e., based on a court order; (ii) The arrest complied with s. 41(2) of the CrPC; and (iii) The appellant’s plea of non-compliance with s. 41A of the CrPC was unsubstantiated.
The High Court denied the appellant regular bail, citing the complexity of the case and the need to determine the appellant’s role in the alleged conspiracy thoroughly. Since the chargesheet had been filed, the appellant should first approach the trial court for bail.
In the meantime, the Supreme Court granted interim bail to the appellant in the ED matter on 12.07.2024. However, the appellant remained in custody due to the ongoing CBI proceedings under the subject FIR. These appeals before the Supreme Court arose from the High Court judgments dated 05.08.2024, challenging the legality of the appellant’s arrest by the CBI and the denial of his bail.
The appellant argued that his arrest violated ss. 41(1) and 41A of the CrPC, as there were no valid reasons to shift from ‘non-arrest’ to ‘arrest’ under s. 41A(3) of the CrPC. He further contended that his arrest was unjustified under s. 41(1)(b)(ii) of the CrPC. The appellant also claimed that the High Court incorrectly applied s. 41(2) of the CrPC, which pertains to non-cognizable offences only. Moreover, he argued that his continued detention was unnecessary, as the CBI had all the evidence, and his bail in the ED case demonstrated that he met the ‘triple test’ for bail (no flight risk, no criminal antecedents, and no threat of tampering with evidence).
In response, the respondent asserted that the arrest was necessary for custodial interrogation and there was proper compliance with ss. 41(1) and 41A of the CrPC, as the CBI had obtained court permission, making the issuance of a s. 41A notice unnecessary. The respondent also contended that the High Court’s reference to s. 41(2) of the CrPC was a typographical error and should have referred to s. 41(1)(b)(ii). Additionally, they argued that filing the chargesheet required the appellant to approach the trial court for bail.
Thus, the key issues before the Supreme Court were whether the arrest was illegal, whether the appellant required immediate release, and whether filing the chargesheet necessitated the appellant’s approach to the trial court for bail.
Held
The Supreme Court overturned the High Court’s judgment and granted bail to the appellant in the CBI case, applying the same conditions as those in the ED case. However, while the 2-Judge Bench of the Supreme Court concurred on granting bail to the appellant, it issued separate judgments with differing reasoning on other aspects of the case.
The Supreme Court, through Hon’ble Justice Surya Kant, granted bail based on the following observations:
I. Legality of Arrest: The appellant contested the legality of the arrest, citing non-compliance with ss. 41(1)(b)(ii) and 41A of the CrPC. In this regard, the Court examined two key aspects:
a) Compliance with s. 41A: It was held that since the appellant was already in judicial custody, which mandates a notice to appear before the investigating officer (IO) did not apply. Thus, the CBI’s interrogation, conducted based on a court-approved application, was held to be valid and compliant with the law.
b) Application of s. 41(1)(b)(ii): On this aspect, it was held that the arrest was made with a magistrate’s approval, making it unnecessary for the police officer to assess the need for the arrest independently. Hence, s. 41(1)(b)(ii) was held to be irrelevant in this context.
II. Grant of Regular Bail: The Supreme Court emphasized the fundamental right to personal liberty, noting that prolonged pretrial detention could violate a. 21 of the Constitution of India (‘Constitution’). Given the complexity of the case, the number of accused, and the unlikelihood of a swift trial conclusion, the Court concluded that the appellant satisfied the conditions for regular bail. Moreover, it was noted that the CBI already had all necessary evidence in its possession, thereby minimizing the risk of the appellant tampering with it.
III. Filing of Chargesheet: While the filing of a chargesheet usually requires a reassessment of bail, the Court found that, given the case had been heard on its merits, it would not be prudent to send the appellant back to the trial court for reconsideration on bail.
The Supreme Court, through Hon’ble Justice Ujjal Bhuyan, delivered a dissent on the necessity and timing of arrest while concurring on the bail of the appellant. Notable observations of the dissent were as follows:
I. Consensus on Grant of Bail: Although the 2-Judge Bench agreed on granting bail to the appellant, a dissent arose on the necessity and timing of the CBI’s arrest. It was noted that the appellant was arrested on 26.06.2024, almost two years after the case was registered and just after being granted bail in the ED case, raising concerns that the bail decision influenced the arrest.
II. Delay and Unnecessary Arrest: The dissenting Court highlighted that the CBI’s 22-month delay in arresting the appellant indicated a lack of urgency. The timing suggested an attempt to undermine the ED bail. Furthermore, the respondent’s argument that the appellant was not cooperating with the investigation was rejected, ruling that the appellant’s right to remain silent was not evasiveness.
III. Constitutional Safeguards: The arrest violated a. 20(3) of the Constitution, which protects against self-incrimination. With the evidence largely consisting of documents already seized, concerns about tampering or influencing witnesses could have been addressed through bail conditions. The High Court’s judgment, in the view of the dissenting Court, unnecessarily prolonged the appellant’s detention.
Our Analysis
This decision is pivotal in reinforcing the principle of personal liberty, stressing that prolonged incarceration without trial violates a. 21 of the Constitution. The Supreme Court closely examined the necessity and timing of the appellant’s arrest, questioning why the CBI waited 22 months to arrest the appellant and whether this delay was linked to the then-recent grant of bail in the ED case. The Court observed that the arrest appeared to be a reaction to the bail granted in the ED case, implying an attempt to undermine the appellant’s release. By making this observation, the Court emphasized that the CBI must not only act fairly but also be seen as impartial to maintain public trust in the rule of law.
The Supreme Court highlighted the lack of genuine necessity for the arrest, affirming the accused’s right to liberty. It also stressed the importance of fair and transparent investigations, noting that public confidence in the investigative process is essential to upholding the rule of law. The ruling further challenged the justification for arrest based on alleged evasiveness, making it clear that such grounds do not meet the legal standard for arrest. The Court reinforced that the right to remain silent is constitutionally protected under a. 20(3), and no adverse inference can be drawn from the appellant’s silence.
Notably, the Court criticized the High Court for unnecessarily prolonging the appellant’s detention, reiterating that judicial processes must prioritize individual rights. This ruling reaffirms the presumption of innocence and sets a significant precedent for handling bail applications, ensuring that procedural fairness does not compromise justice.
End Note
[i] 2024 SCC OnLine SC 2550 [13.09.2024].
Authored by Shivam Mishra, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinions.