Supreme Court division bench unanimously granted bail to Delhi Chief Minister Arvind Kejriwal though it was split on the challenge to the Central Bureau of Investigation’s (CBI) arrest in the Delhi Liquor Policy Scam.
The Supreme Court reiterated its observations made in the Manish Sisodia case and others that prolonged incarceration of an accused cannot be justified when there is no end of a trial in sight. “The court would bend towards liberty when trial is derailed,” Justice Surya Kant said.
“The FIR was on August 2022 and 4 chargesheets have been filed and trial court has taken cognisance and 17 accused to be examined.. completion of trial is unlikely in the near future. Kejriwal satisfies the triple condition for the grant of bail and we order accordingly,” he added.
Justice Bhuyan’s Critical Remarks on the CBI’s Arrest
Justice Ujjal Bhuyan observed that he had a “definite point of view” “on necessity and timing of arrest”. The CBI’s appearance in this case raises more questions than it answers, the judge said.
In a separate but concurring verdict, Justice Ujjal Bhuyan pulled up the central probe agency in his strongly-worded order. It expressed serious reservations on the CBI’s intent to arrest the already then-jailed Aam Aadmi Party (AAP) leader.
Justice Bhuyan observed that the CBI must be seen above board and should make every effort to ensure that the arrest was not done in a “high-handed manner”.
“In a country perception matters and the CBI must dispel the notion that it is a caged parrot. It must show that it is uncaged... the CBI should be like Caesar’s wife, above board and beyond suspicion,” Justice Bhuyan said.
The Enforcement Directorate arrested Kejriwal on March 21 weeks before the General Lok Sabha Elections. On June 26, the CBI arrested the AAP leader in the same case while he was in ED custody.
With the SC granting bail in both cases, Kejriwal is likely to walk out of jail today after completing formalities. Though expressing apprehension, Justice Bhuyan agreed with the bail condition where the Delhi CM is barred from the Secretariat and signing files.
“I'd refrain from saying further...,” he said.
The top court’s decision today comes less than a fortnight after it had reserved its verdict on this issue. In his plea, Kejriwal had not only appealed against the Delhi High Court’s August 5 decision upholding the CBI arrest, but had also sought bail.
In response to Kejriwal’s plea, the Supreme Court framed three questions for consideration: Is the CBI arrest illegal? Can Kejriwal be released immediately, and whether the chargesheet filed in the case was of such nature that the Delhi CM has to go to trial court first, as opposed to moving the high court directly as in this case?
SC Split on legality of CBI arrest
Justices Surya Kant and Ujjal Bhuyan unanimously agreed on granting bail, but differed on the need for the CBI arrest.
Justice Surya Kant observed that the CBI arrest was legal and there was no impediment in arresting an individual who was already in custody. When a magistrate has issued a warrant the Investigating Officer (IO) stands absolved from giving any reason for the same, Justice Kant said while observing that the CBI arrest did not suffer from any procedural flaw and terming it valid.
However, Justice Ujjal Bhuyan questioned the necessity of the CBI arrest and observed that it was simply done to frustrate the ED bail granted in this case.
Justice Ujjal Bhuyan in a separate but concurring judgment observed it was a travesty of justice to keep Kejriwal in custody in the CBI case, especially as he has been granted bail in more stringent PMLA case by the ED.
Justice Bhuyan observed the CBI was “inactive” for 22 months even though the Delhi CM was interrogated in March 2023. The CBI became active and “sought custody” only after a delhi court on June 20 June granted Kejriwal bail in ED’s PMLA case connected to the now-scrapped liquor policy.
“I fail to understand the great urgency on part of CBI to arrest appellant when he was on cusp of release in ED case,” he said adding, “Further detention by CBI under same predicate offense has become untenable. There is presumption of innocense. Bail is the rule and jail an exception. Courts must ensure that pre-trial process does not become punishment.”
Delhi High Court on June 25 stayed the court’s bail order in response to ED’s appeal against it. The CBI arrested Kejriwal on June 26.
“Such actions by CBI raises serious question on the timing of the arrest,” the court added.
Justice Bhuyan observed that it cannot be inferred that the accused is cooperating only if he answers as per what the prosecution wants to hear. “His right to remain silent does not mean he is being evasive and no adverse inference can be drawn from the silence of an accused,” he added.
“It will be a travesty of justice to keep Kejriwal incarcerated when he is on bail in the ED case,” Justice Bhuyan said while reading out the order in open court. Exercise of power of arrest must be used sparingly as it was held in the Mohammed Zubair case. In Arnab Goswami it was held that law cannot be used for targeted harassment,” the court added.