I have gone through the draft judgment of my
esteemed senior colleague Justice Surya Kant. I am in complete
agreement with the conclusion and direction of his Lordship that
the appellant should be released on bail. However, on the
necessity and timing of the arrest, I have a definite point of view.
Therefore, I deem it appropriate to render a separate opinion on
the point of necessity and timing of the arrest of the appellant
while concurring with the opinion of Justice Surya Kant that the
appellant should be released on bail.
2.Leave granted.
3.At the outset, a brief recital of the relevant dates and the attending facts as borne out from the record may be noted. 3.1. A case was registered by the CBI on 17.08.2022 being RC No. 0032022A0053 under Section 120B read with Section 477A of IPC and Section 7 of the PC Act. The aforesaid case was registered on the basis of source information as well as on the basis of a written complaint received from Shri Praveen Kumar Rai, Director, Ministry of Home Affairs, Government of India dated 22.07.2022. This letter also conveyed complaint dated 20.07.2022 of Shri Vinay Kumar Saxena, Lieutenant Governor of the Government of National Capital Territory of Delhi. The complaint sought for enquiry into the irregularities and manipulation in the framing and implementation of the excise policy of the Government of National Capital Territory of Delhi (GNCTD) for the year 2021-22. The precise allegation is that the accused persons had deliberately tweaked and manipulated the excise policy of 2021-22 which resulted in enhanced profit of the liquor manufacturers, wholesalers and retailers in lieu of illegal gratification received by the accused persons from what is called the “south group” to meet the election related expenses of the Aam Admi Party at Goa. 3.2. On 14.04.2023, appellant received summons under Section 160 Cr.P.C. from the CBI to appear before it on 16.04.2023. In compliance thereto, appellant appeared before the CBI on 16.04.2023. According to the appellant, he was questioned by the CBI for about 9 to 10 hours. 3.3. CBI filed a total of four chargesheets wherein 17 persons were named as accused. Manish Sisodia and Kavitha Kalvakuntala were named as accused amongst others. Appellant Shri Arvind Kejriwal was not named as an accused in the said chargesheets. The gist of the chargesheets is that the excise policy in question was a result of criminal conspiracy which was hatched by a cartel of liquor manufacturers, wholesalers and retailers ensuring undue gain to them in lieu of pecuniary benefits to the accused persons. Such criminal conspiracy resulted in huge loss to the government exchequer. 3.4. Fifth and final chargesheet has been filed by the CBI on 29.07.2024 wherein appellant has been named as an accused.
4.Directorate of Enforcement or ED recorded ECIR No. HIU-II/14/2022 on 22.08.2022 under the Prevention of Money Laundering Act, 2005 (PMLA) on the basis of the offences under which the CBI case was registered. Thus, the offences under the CBI case became the predicate offence leading to investigation by the ED under PMLA. ED filed the first prosecution complaint on 26.11.2022 in respect of which the Special Court took cognizance on 20.12.2022. ED has since then filed seven supplementary prosecution complaints. In the last supplementary prosecution complaint filed on 17.05.2024, appellant has been named as an accused. 4.1. According to ED, several notices under Section 50 of PMLA were issued to the appellant for his examination and recording of statement but he failed to appear and join the investigation. However, according to the appellant, the notices issued under Section 50 were illegal, bad in law and invalid.
5.Be that as it may, appellant was arrested by the ED on 21.03.2024. Appellant challenged his arrest before the High Court by filing a petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. However, the same was dismissed by the High Court on 09.04.2024.
6.It is stated that the competent authority accorded permission under Section 17A of the PC Act on 23.04.2024 whereafter CBI proceeded to investigate the role of the appellant in the CBI case. However, it is not mentioned as to when such permission was sought for.
7.In so far arrest of the appellant in the PMLA case is concerned, appellant carried his challenge from the High Court to this Court. On 10.05.2024, this Court granted interim bail to the appellant till 02.06.2024 in Criminal Appeal No. 2493 of 2024 in view of the ongoing Lok Sabha elections. On completion of the period of interim bail, appellant surrendered and was taken back into custody.
8.On 20.06.2024, appellant was granted regular bail by the learned Special Judge in the ED case. This bail order was challenged by the ED before the High Court which stayed the bail order on 21.06.2024 on an oral mentioning. A detailed order staying the bail of the appellant in the ED case was pronounced by the High Court only on 25.06.2024.
9.CBI sought for custody of the appellant so as to interrogate him. Application filed by the CBI in this regard under Section 41A Cr.P.C. was allowed by the learned Special Judge on 24.06.2024.
10.It is stated that CBI interrogated the appellant in Tihar Jail on 25.06.2024 for 3 hours but according to the CBI, he did not furnish satisfactory reply to the questions put to him. His reply was found to be evasive.
11.At around the same time the High Court stayed the bail of the appellant in the PMLA case, on 25.06.2024 CBI sought for permission of the learned Special Judge to formally arrest the appellant in the CBI case. On production of the appellant before the learned Special Judge on 26.06.2024, appellant was formally arrested and remanded to CBI custody till 29.06.2024 by the learned Special Judge. In the arrest memo dated 26.06.2024, CBI mentioned in column 7 that it had explained the grounds of arrest to the appellant. The grounds of arrest were mentioned as under: He is not co-operating with the investigation and concealing the true facts even after being confronted with evidences gathered during the investigation so far and also the facts which are exclusively in his knowledge and relevant for the purpose of the investigation to reach to the just conclusion of the case. He is trying to purposely derail the investigation. He may influence the witnesses. 11.1. In the remand application, CBI mentioned in paragraph 17 that appellant was examined/interrogated in Tihar Jail on 25.06.2024. During his interrogation he remained evasive and non-cooperative, failing to give satisfactory replies to the questions put to him regarding his role in the conspiracy. CBI mentioned as under: That Arvind Kejriwal was examined/interrogated in Tihar Jail on 25.06.2024. During his interrogation, he remained evasive and non-cooperative, failing to give satisfactory replies to the questions raised to him regarding his role in the matter of demand of upfront money of Rs. 100 Crores from co-accused persons of South Group, the acceptance and delivery of the same to Aam Aadmi Party through his close associate Vijay Nair as well as utilization of the ill-gotten money so received in the Assembly Elections of Goa during the year 2021-22 to meet the election related expenditures of Aam Aadmi Party. He further gave evasive replies regarding his role and the role of other co-accused in respect of criminal conspiracy hatched. His replies are contrary to the oral and documentary evidence gathered by CBI during the investigation. He is not disclosing the facts truthfully, despite being confronted with the incriminating evidence and also concealing the vital facts, which are exclusively in his knowledge. These facts are relevant for the purpose of the investigation to reach to the just conclusion of the case. 11.2. On 29.06.2024, learned Special Judge remanded the appellant to judicial custody till 12.07.2024.
12.Criminal Appeal No. 2493 of 2024 was heard by this Court in the meanwhile. On 12.07.2024, a detailed judgment was passed. A bench of two Hon’ble Judges of this Court framed the following three questions of law for consideration by a larger bench: (a) Whether the “need and necessity to arrest” is a separate ground to challenge the order of arrest passed in terms of Section 19(1) of the PML Act? (b) Whether the “need and necessity to arrest” refers to the satisfaction of formal parameters to arrest and take a person into custody, or it relates to other personal grounds and reasons regarding necessity to arrest a person in the facts and circumstances of the said case? (c) If questions (a) and (b) are answered in the affirmative, what are the parameters and facts that are to be taken into consideration by the court while examining the question of “need and necessity to arrest”? 12.1. While making the reference as above, the bench observed that right to life and liberty is sacrosanct. Appellant had suffered incarceration of over 90 days. The above questions referred to a larger bench would require in depth consideration. Therefore, appellant was directed to be released on interim bail in connection with ECIR No. HIU-II/14/2022 dated 22.08.2022 on the same terms which were imposed earlier while granting temporary bail on 10.05.2024.
13.CBI filed its final chargesheet naming the appellant for the first time as an accused on 29.07.2024.
14.Appellant filed Bail Application No. 2285/2024 before the High Court under Section 439 of Cr.P.C. seeking regular bail in the CBI case. On 05.07.2024, a learned Judge of the High Court issued notice. Thereafter, arguments were heard on interim bail on 17.07.2024. However, the case was directed to be listed again on 29.07.2024 at 03:00 PM. On 29.07.2024, arguments were heard and the judgment was reserved. 14.1. Seven days thereafter the judgment was delivered on 05.08.2024. Without deciding the bail application on merit, the High Court disposed of the same giving liberty to the appellant to approach the Court of Special Judge for regular bail saying that such a course of action would be more beneficial to the appellant.
15.From the narration of facts as noted above, it is seen that CBI had registered its case RC No. 0032022A0053 on 17.08.2022. A total of four chargesheets were filed by CBI in the case naming 17 persons as accused. Appellant Arvind Kejriwal was not named as an accused in those chargesheets.
16.In the meanwhile, ED recorded ECIR No. HIU II/14/2022 under PMLA on 22.08.2022. ED filed seven complaints under PMLA. In none of the above complaints, appellant was named as an accused. However, appellant was arrested by the ED in the PMLA case on 21.03.2024.
17.On 20.06.2024, appellant was granted regular bail by the learned Special Judge in the ED case. On oral mentioning, this bail order was stayed by the High Court on 21.06.2024.
18.It was thereafter that CBI sought for custody of the appellant in the CBI case which was allowed by the learned Special Judge on 24.06.2024.
19.Finally, this Court granted interim bail to the appellant in the PMLA case on 12.07.2024.
20.CBI filed the fifth and final chargesheet in the CBI case on 29.07.2024 wherein appellant has been named as an accused.
21.Since appellant’s arrest by the ED, bail granted by the learned Special Judge and stay of bail by the High Court in the PMLA case are subject matter of parallel proceedings where appellant has been granted interim bail by this Court, I would refrain from commenting thereon. Therefore, I will confine this opinion only to two aspects: arrest of the appellant and the judgment of the High Court. Arrest of the appellant by the CBI: necessity and timing
22.In so far arrest of the appellant by the CBI is concerned, it raises more questions than it seeks to answer. As already noted above, CBI case was registered on 17.08.2022. Till the arrest of the appellant by the ED on 21.03.2024, CBI did not feel the necessity to arrest the appellant though it had interrogated him about a year back on 16.04.2023. It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024. Even on the date of his arrest by the CBI on 26.06.2024, appellant was not named as an accused by the CBI. Only in the last chargesheet filed by the CBI on 29.07.2024, appellant has been named as an accused.
23.Thus, it is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024 i.e. for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody. In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case.
24.In so far the grounds of arrest are concerned, I am of the view that those would not satisfy the test of necessity to justify arrest of the appellant and now that the appellant is seeking bail post incarceration, those cannot also be the grounds to deny him bail. The respondent is definitely wrong when it says that because the appellant was evasive in his reply, because he was not cooperating with the investigation, therefore, he was rightly arrested and now should be continued in detention. It cannot be the proposition that only when an accused answers the questions put to him by the investigation agency in the manner in which the investigating agency would like the accused to answer, would mean that the accused is cooperating with the investigation. Further, the respondent cannot justify arrest and continued detention citing evasive reply.
25.We should not forget the cardinal principle under Article 20(3) of the Constitution of India that no person accused of an offence shall be compelled to be a witness against himself. This Court has held that such a protection is available to a person accused of an offence not merely with respect to the evidence that may be given in the court in the course of the trial, but is also available to the accused at a previous stage if an accusation has been made against him which might in the normal course result in his prosecution. Thus, the protection is available to a person against whom a formal accusation has been made, though the actual trial may not have commenced and if such an accusation relates to the commission of an offence which in the normal course may result in prosecution. 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. 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 PMLA.
26.That apart, the apprehension of tampering with the evidence or influencing witnesses has already been answered by this Court in the case of Manish Sisodia in the following manner: 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.
27.Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it should arrest such a person. In Joginder Kumar Vs. State of U.P.1, a three-Judge bench of this Court examined the interplay of investigation and arrest. Referring to the third report of the National Police Commission, this Court declared that no arrest can be made just because it is lawful for police officers to do so. The existence of the power of arrest is one thing but justification for the exercise of it is quite another. It was held as under: 20. …….No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.
28.In the case of Sidhartha Vashisht alias Manu Sharma Vs. State (NCT of Delhi)2, this Court emphasized that investigation must be fair and effective. Investigation should be conducted in a manner so as to draw a just balance between a citizen’s right under Articles 19 and 21 of the Constitution of India and the expansive power of the police to make investigation. Concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India.
29.This Court in the case of Arnesh Kumar Vs. State of Bihar3, while examining the provisions of Sections 41 and 41A Cr.P.C. observed that arrest brings humiliation, curtails freedom and cast scars forever. This Court, while emphasizing the need to sensitize the police against high-handed arrest, deprecated the attitude to arrest first and then to proceed with the rest. While emphasizing that police officers should not arrest the accused unnecessarily and that the Magistrate should not authorize detention casually and mechanically, this Court observed as follows: 5. Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
30.Again in the case of Mohd. Zubair Vs. State (NCT of Delhi)4, a three-Judge Bench of this Court once again emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. This Court reiterated the role of the courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment. Referring to its earlier decision in Arnab Ranjan Goswami Vs. Union of India5, this Court observed that the courts should be alive to both ends of the spectrum: the need to ensure proper enforcement of criminal law on the one hand and the need to ensure that the law does not become a ruse for targeted harassment on the other 4 (2022) SCC Online SC 897 hand. Courts must ensure that they continue to remain the first line of defence against the deprivation of liberty of the citizens. Deprivation of liberty even for a single day is one day too many.
31.When the CBI did not feel the necessity to arrest the appellant for 22 long months, I fail to understand the great hurry and urgency on the part of the CBI to arrest the appellant when he was on the cusp of release in the ED case. The substantive charge against the appellant is under Section 477A IPC which deals with falsification of accounts and if convicted carries a punishment of imprisonment for a term which may extend to seven years or with fine or with both. The appellant has also been charged under Section 7 of the PC Act which deals with offence relating to a public servant being bribed. Here the punishment, if convicted, is imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Without entering into the semantics of applicability of Section 41(1)(b)(ii) and Section 41A Cr.P.C. as explained by this Court in Arnesh Kumar (supra), timing of the arrest of the appellant by the CBI is quite suspect.
32.CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious. This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high-handed and biased manner.
33.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. Impugned order
34.Let me now deal with the impugned judgment and order of the High Court whereby the bail application of the appellant was disposed of. Appellant had filed Bail Application No. 2285 of 2024 before the High Court under Section 439 Cr.P.C. in the CBI case where he was taken into custody on 26.06.2024. On 05.07.2024, a learned Judge of the High Court issued notice, fixing 17.07.2024 for arguments. On 17.07.2024, arguments were heard on interim bail; thereafter, the case was directed to be listed on 29.07.2024 at 03:00 PM. On 29.07.2024, arguments were heard and the judgment was reserved. Finally, the judgment was pronounced on 05.08.2024, the relevant portion of which reads as under: 5. Though there is no quarrel about the proposition that the District Courts and this Court have concurrent jurisdiction, as has been held in the Judgments relied on behalf of the appellant, but at the same time it has been held time and again by the Apex Court that the Party must first approach the Court of first instance. 6. In the present case, it is more in the benefit of the appellant, considering the complexity and the web of the facts and the material on record, to comprehensively determine the role of the appellant in this alleged conspiracy to determine if he is entitled to bail. It may also be noted that when the Bail Application was filed before this Court, the chargesheet had not been filed. However, in the changed circumstances, when the chargesheet has already got filed before the learned Special Judge, it would be in the benefit of the appellant, to first approach the Court of Sessions Judge. 7. In these circumstances, this Bail Application is hereby disposed of with the liberty to the appellant to approach the learned Special Judge for regular bail. 34.1. After observing that it would be more to the benefit of the appellant if the appellant approaches the learned Special Judge first for bail more so when the chargesheet has been filed, the High Court relegated the appellant to the forum of the learned Special Judge though both the Court of the Special Judge and the High Court have concurrent jurisdiction in the matter.
35.If indeed the High Court thought of remanding the appellant to the forum of the Court of Special Judge, it could have done so at the threshold itself. After issuing notice, after hearing the parties at length and after reserving the judgment for about a week, the above order was passed by the High Court. Though couched in a language which appears to be in favour of the appellant, in practical terms it has only resulted in prolonging the incarceration of the appellant for a far more longer period impacting his personal liberty.
36.In somewhat similar circumstances, this Court in Kanumuri Raghurama Krishnam Raju Vs. State of A.P.6, after observing that jurisdiction of the trial court as well as of the High Court under Section 439 Cr.P.C. is concurrent, held that merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. In the facts of that case, this Court opined that the High Court ought to have considered the bail application of the appellant on merit and decided the same. However, having regard to the fact that much time had lapsed since passing of the order of the High Court and there were subsequent medical reports of the appellant, this Court did not relegate the appellant back to the High Court but considered the bail application of the appellant on merit herein itself. This Court held thus: 14. The jurisdiction of the trial court as well as the High Court under Section 439 of the Code of Criminal Procedure, 1973 is concurrent and merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same. However, since the High Court has not considered the matter on merits and much water has flown since the passing of the order of the High Court, as now there are two medical reports of the appellant, one by the government hospital on the direction of the High Court and the other by Army Hospital on the directions of this Court, we deem it fit and proper to consider the bail application of the appellant on merits.
37.Mr. Raju, learned Additional Solicitor General of India, while supporting the order of the High Court vehemently argued that the appellant has to first approach the trial court for bail though under Section 439 Cr.P.C. both the Special Court and the High Court have concurrent jurisdiction. No special privilege should be shown or granted to the appellant. I am afraid such a submission cannot be accepted. In this regard, I am in respectful agreement with the view taken by this Court in Kanumuri Raghurama Krishnam Raju. That apart, when the appellant has been granted bail under the more stringent provisions of PMLA, further detention of the appellant by the CBI in respect of the same predicate offence has become wholly untenable. In such circumstances, asking the appellant or relegating the appellant to approach the trial court, then to the High Court and then to this Court for a fresh round of bail proceedings in the CBI case after he had already traversed the same route in the PMLA case would be nothing but a case of procedure triumphing the cause of justice. In this connection, it would be apt to refer to the observations of this Court in the case of Manish Sisodia Vs. CBI, Criminal Appeal No. 3296 of 2024, decided on 09.08.2024: 32. It could thus be seen that this Court had granted liberty to the appellant to revive his prayer after filing of the chargesheet. 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. 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. 37.1. Manish Sisodia is a co-accused in the same CBI case and the ED case. His second bail application was rejected by the trial court on 30.04.2024 after taking about three months’ time to decide the same. When Sisodia moved the High Court for bail, the same also came to be rejected on 21.05.2024. It was thereafter that Manish Sisodia approached this Court in the second round. In the hearing which took place on 04.06.2024, the learned Solicitor General for India made a statement before the Court that investigation would be concluded and final complaint as well as chargesheet would be filed in both the ED and CBI cases on or before 03.07.2024. On the basis of the above statement of the learned Solicitor General, this Court disposed of the two criminal appeals of Shri Manish Sisodia with liberty to him to revive his prayer afresh after filing of final complaint and chargesheet. When Shri Sisodia approached this Court for bail after the complaint and the chargesheet were filed, Mr. Raju learned Additional Solicitor General of India appearing for the ED as well as the CBI contended that Shri Sisodia should again approach the trial court for regular bail as in the interregnum, the complaint and the chargesheet were filed. Such submission of Mr. Raju was rejected by this Court. Adverting to the earlier order of this Court dated 04.05.2024, this Court in Manish Sisodia observed as under: 33. ……..It will be a travesty of justice to construe that the carefully couched order preserving the right of the appellant to revive his prayer for grant of special leave against the High Court order, to mean that he should be relegated all the way down to the trial court. The memorable adage, that procedure is a hand maiden and not a mistress of justice rings loudly in our ears.
38.This Court in Gudikanti Narasimhulu Vs. Public Prosecutor7, had highlighted that bail is not to be withheld as a punishment. The requirement as to bail is merely to secure the attendance of the prisoner at trial. This Court in Manish Sisodia referred to and relied upon the aforesaid decision and reiterated the salutary principle that bail is the rule and jail is the exception. This Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts. It has been held as under: 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.
39.Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and jail is the exception. As such, the courts at all levels must ensure that the process leading to and including the trial does not end up becoming the punishment itself.
40.This Court has emphasized and re-emphasized time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution.
41.That being the position and having regard to the discussions made above, I am of the unhesitant view that the belated arrest of the appellant by the CBI is unjustified and the continued incarceration of the appellant in the CBI case that followed such arrest has become untenable.
42.In the circumstances, the judgment and order of the High Court dated 05.08.2024 in W.P.(Crl.) No. 1939 of 2024 is clarified to the above context while the judgment and order of the High Court dated 05.08.2024 in Bail Application No. 2285 of 2024 is set aside.
43.Consequently, it is directed that the appellant shall be released on bail forthwith in the CBI case i.e. RC No. 0032022A0053 dated 17.08.2022. In so far bail conditions are concerned, this Court in the ED case i.e. in Criminal Appeal No. 2493 of 2024 has imposed several terms and conditions including clauses (b) and (c) vide the orders dated 10.05.2024 and 12.07.2024 which have been incorporated in clause (d) of paragraph 47(ii) of the judgment delivered by Justice Surya Kant. Though I have serious reservations on clauses (b) and (c) which debars the appellant from entering the office of Chief Minister and the Delhi Secretariat as well as from signing files, having regard to judicial discipline, I would refrain from further expressing my views thereon at this stage since those conditions have been imposed in the separate ED case by a two judge bench of this Court.
44.Both the appeals are accordingly disposed of. [UJJAL BHUYAN] NEW DELHI; SEPTEMBER 13, 2024. IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.3816 OF 2024 (Arising out of SLP(Crl.)No.11023/2024) ARVIND KEJRIWAL … APPELLANT Versus CENTRAL BUREAU OF INVESTIGATION … RESPONDENT WITH CRIMINAL APPEAL No.3817 OF 2024 (Arising out of SLP(Crl.)No.10991/2024) O R D E R 1. Leave granted. 2. In view of the separate order passed by Hon’ble Mr.Justice Ujjal Bhuyan, however, there being a concurrent opinion that the appellant is entitled to be released on bail, subject to the terms and conditions mentioned in para 47 of the order, authored by Hon’ble Mr.Justice Surya Kant, the Criminal Appeal challenging the legality of arrest (arising out of SLP(Crl.)No.10991/2024 is dismissed, the Criminal Appeal arising out of SLP(Crl.)No.11023/2024 is allowed and while setting aside the impugned judgment of the High Court dated 05.08.2024, the appellant is directed to be released on bail, subject to the following terms and conditions: a. the Appellant is directed to be released on bail in connection with FIR No. RC0032022A0053/2022 registered by the CBI at PS CBI, ACB, upon furnishing bail bonds for a sum of Rs. 10,00,000 /- with two sureties of such like amount, to the satisfaction of the Trial Court; b. the Appellant shall not make any public comments on the merits of the CBI case, it being sub judice before the Trial Court. This condition is necessitated to dissuade a recent tendency of building a self-serving narrative on public platforms; c. however, this shall not preclude the Appellant from raising all his contentions before the Trial Court; d. the terms and conditions imposed by a coordinate bench of this Court vide orders dated 10.05.2024 and 12.07.2024 passed in Criminal Appeal No. 2493/2024, titled Arvind Kejriwal v. Directorate of Enforcement, are imposed mutatis mutandis in the present case; e. the Appellant shall remain present before the Trial Court on each and every date of hearing, unless granted exemption; and f. the Appellant shall fully cooperate with the Trial Court for expeditious conclusion of the trial proceedings. (SURYA KANT) (UJJAL BHUYAN) NEW DELHI DATED: 13.09.2024