# Arvind Kejriwal v. Central Bureau of Investigation

- **Citation:** 2024 INSC 687
- **Court:** Supreme Court of India
- **Decided:** 2024-09-13
- **Case number:** Criminal Appeal No. 3816 of 2024
- **Bench:** Surya Kant, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arvind-kejriwal-v-central-bureau-of-investigation-38070
- **Pages:** 41

## Headnote

The instant appeals are directed against the judgments and
orders dated 05.08.2024 passed by the High Court, dismissing
the appellant's challenge to his arrest being illegal as well as his
application for the grant of regular bail.
Headnotes†
Code of Criminal Procedure, 1973 - ss.41A - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 - The
High Court upheld the arrest of the appellant by the CBI and
congruously denied him regular bail - Propriety:
Held: [Per Surya Kant, J.]: CBI complied with Section 41A
CrPC, in its true letter and spirit - The appellant's arrest does
not suffer with any procedural infirmity - Although the procedure
for the Appellant's arrest meets the requisite criteria for legality
and compliance, continued incarceration for an extended period
pending trial would infringe upon established legal principles
and the appellant's right to liberty, traceable to Article 21 of
Constitution - The appellant satisfies the requisite conditions for
the grant of bail - Thus, the appellant directed to be released on
bail in connection with FIR registered by the CBI. [Paras 29, 36,
40, 47(ii)(a)] - [Per Ujjal Bhuyan, J. (concurring)]: 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 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 Special Judge grants regular bail to the appellant in the
ED case, CBI seeks his custody - In the circumstances, a view
* Author
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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 - 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 - Thus, appellant directed to
be released on bail forthwith. [Paras 23, 41, 43]
Code of Criminal Procedure, 1973 - s.41A - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 -
The primary basis for the appellant's challenge rests on the
contention that the procedure for arrest, as outlined u/ss. 41A
of the CrPC, was not complied with:
Held: S.41A of the CrPC pertains to the issuance of a notice by
a police officer to an individual when their arrest is not warranted
u/s.41(1) of the CrPC, but their presence is still required before the
investigating authority - In the present context, since the appellant
was already in judicial custody at the relevant time in the ED case,
the CBI filed an application on 24.06.2024 before the trial Court
u/s.41A of the CrPC, inter alia seeking to interrogate and examine
him - Such examination was allegedly necessitated by new facts
and evidence uncovered by the CBI upon further investigation - The
provision, however, does not outline any express procedure to be
undertaken where the individual in question is already incarcerated -
It is to be remembered that the Court is, in a way, the guardian of
an undertrial, while he is in judicial custody - That being so, there
could possibly be no other way to secure the appellant's physical
presence for the purpose of further investigation, except to seek prior
permission of the trial Court for his interrogation - In the case in hand,
the trial Court's approval of the CBI's application to interrogate the
Appellant should be viewed as satisfying the essential requirements
of Section 41A, as the issuance of a formal notice through the jail
authorities would have had an adverse impact on the rights of the
appellant - Thus, in considered view of this Court the CBI complied
with the procedure encompassed within the framework of Section

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[2024] 9 S.C.R. 683 : 2024 INSC 687
Arvind Kejriwal
v.
Central Bureau of Investigation
(Criminal Appeal No. 3816 of 2024)
13 September 2024
[Surya Kant* and Ujjal Bhuyan,* JJ.]
Issue for Consideration
The instant appeals are directed against the judgments and
orders dated 05.08.2024 passed by the High Court, dismissing
the appellant's challenge to his arrest being illegal as well as his
application for the grant of regular bail.
Headnotes†
Code of Criminal Procedure, 1973 - ss.41A - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 - The
High Court upheld the arrest of the appellant by the CBI and
congruously denied him regular bail - Propriety:
Held: [Per Surya Kant, J.]: CBI complied with Section 41A
CrPC, in its true letter and spirit - The appellant's arrest does
not suffer with any procedural infirmity - Although the procedure
for the Appellant's arrest meets the requisite criteria for legality
and compliance, continued incarceration for an extended period
pending trial would infringe upon established legal principles
and the appellant's right to liberty, traceable to Article 21 of
Constitution - The appellant satisfies the requisite conditions for
the grant of bail - Thus, the appellant directed to be released on
bail in connection with FIR registered by the CBI. [Paras 29, 36,
40, 47(ii)(a)] - [Per Ujjal Bhuyan, J. (concurring)]: 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 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 Special Judge grants regular bail to the appellant in the
ED case, CBI seeks his custody - In the circumstances, a view
* Author
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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 - 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 - Thus, appellant directed to
be released on bail forthwith. [Paras 23, 41, 43]
Code of Criminal Procedure, 1973 - s.41A - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 -
The primary basis for the appellant's challenge rests on the
contention that the procedure for arrest, as outlined u/ss. 41A
of the CrPC, was not complied with:
Held: S.41A of the CrPC pertains to the issuance of a notice by
a police officer to an individual when their arrest is not warranted
u/s.41(1) of the CrPC, but their presence is still required before the
investigating authority - In the present context, since the appellant
was already in judicial custody at the relevant time in the ED case,
the CBI filed an application on 24.06.2024 before the trial Court
u/s.41A of the CrPC, inter alia seeking to interrogate and examine
him - Such examination was allegedly necessitated by new facts
and evidence uncovered by the CBI upon further investigation - The
provision, however, does not outline any express procedure to be
undertaken where the individual in question is already incarcerated -
It is to be remembered that the Court is, in a way, the guardian of
an undertrial, while he is in judicial custody - That being so, there
could possibly be no other way to secure the appellant's physical
presence for the purpose of further investigation, except to seek prior
permission of the trial Court for his interrogation - In the case in hand,
the trial Court's approval of the CBI's application to interrogate the
Appellant should be viewed as satisfying the essential requirements
of Section 41A, as the issuance of a formal notice through the jail
authorities would have had an adverse impact on the rights of the
appellant - Thus, in considered view of this Court the CBI complied
with the procedure encompassed within the framework of Section 41A
of the CrPC. [Paras 17, 18, 20] [Per Surya Kant, J.]
Code of Criminal Procedure, 1973 - s.41A(3) - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 -
Whether there was violation of Section 41A(3) of the CrPC:
Held: First, it is trite law that there is no insurmountable hurdle in
the conversion of judicial custody into police custody by an order of
[2024] 9 S.C.R.
685
Arvind Kejriwal v. Central Bureau of Investigation
a Magistrate - Thus, there is no impediment in terms of arresting a
person already in custody for the purposes of investigation, whether
for the same offence or for an altogether different offence - The
appellant's arrest by the CBI was thus entirely permissible, in light
of the trial Court's order dated 25.06.2024 wherein the trial Court,
after considering the reasons, allowed the CBI's application for the
appellant's arrest - Second, Section 41A(3) allows for arrest, provided
the reasons are recorded, justifying the necessity of such a step, and
the police officer is satisfied that the individual should be arrested -
In this context, the CBI, in their application dated 25.06.2024, clearly
recorded the reasons as to why they deemed the appellant's arrest
necessary - These reasons were also summarized in the arrest
memo dated 26.06.2024 - Third, s.41A(1), when r/w.s.41A(3)
CrPC, does not impose an absolute prohibition on the arrest of an
individual against whom there exists reasonable suspicion of having
committed a cognizable offence punishable with imprisonment up
to seven years - This is evident from the language of the provision
itself - S.41A(3) explicitly states that an arrest is permissible if
the police officer believes it to be necessary and duly records the
reasons for such arrest - This provision thus essentially carves out
an exception to the general rule u/s. 41A, which mandates that an
individual whose appearance is required should not be arrested
u/s.41(1) of the CrPC. [Paras 25, 26, 27, 28] [Per Surya Kant, J.]
Code of Criminal Procedure, 1973 - s.41(1)(b)(ii) - Penal Code,
1860 - s.477A - Prevention of Corruption Act, 1988 - s.7 -
Whether s.41(1)(b)(ii) of the CrPC is applicable:
Held: Section 41(1)(b)(ii) of the CrPC clearly stipulates that an
arrest under this provision can be made based on a complaint or
credible information that an individual has committed a cognizable
offence punishable with imprisonment up to seven years, with or
without a fine - However, such an arrest must be conducted subject
to the satisfaction of specific conditions outlined in sub-sections
(a) to (e) - The said provision is inapplicable to the vicissitudes
of the present factual matrix - Here is a case where the court
upon application of judicial mind accorded its approval to the
appellant's arrest for which necessary warrant was issued - There
was thus no occasion for the arresting police officer to form an
opinion regarding the existence of valid reasons of arrest - The
competent court having undertaken such a task, the police officer
cannot be expected to sit over the order of the court. [Paras 32, 33]
[Per Surya Kant, J.]
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Code of Criminal Procedure, 1973 - Bail - Constitution of
India - Art. 21 - Penal Code, 1860 - s.477A - Prevention of
Corruption Act, 1988 - s.7 - Whether the appellant is entitled
to the relief of regular bail:
Held: The FIR was registered on 17.08.2022, and since then, the
chargesheet along with four supplementary chargesheets have
been filed - The fourth supplementary chargesheet was filed as
recently as 29.07.2024 and the Trial Court has taken cognizance
of the same - Additionally, seventeen accused persons have
been named, 224 individuals have been identified as witnesses,
and extensive documentation, both physical and digital, has been
submitted - These factors suggest that the completion of the
trial is unlikely to occur in the immediate future - Although the
procedure for the appellant's arrest meets the requisite criteria for
legality and compliance, continued incarceration for an extended
period pending trial would infringe upon established legal principles
and the appellant's right to liberty, traceable to Article 21 of our
Constitution - The Appellant has been granted interim bail by this
Court in the ED matter on 10.05.2024 and 12.07.2024, arising from
the same set of facts - Additionally, several co-accused in both
the CBI and ED matters have also been granted bail by the Trial
Court, the High Court, and this Court in separate proceedings -
So far as the apprehension of the Appellant influencing the
outcome of the trial is concerned, it seems that all evidence
and material relevant to the CBI's disposition is already in their
possession, negating the likelihood of tampering by the Appellant -
Therefore, in the light of these extenuating circumstances and
considering the foregoing analysis, it could be resolved that the
Appellant satisfies the requisite conditions for the grant of bail.
[Paras 39, 40, 41, 42] [Per Surya Kant, J.]
Code of Criminal Procedure, 1973 - Regular bail - Filing of
charge-sheet - Whether the filing of a chargesheet is a change
in circumstances warranting relegation to the trial court for
grant of regular bail:
Held: It is true that generally the trial Court should consider the
prayer seeking bail once the chargesheet is filed, since the material
that an Investigating Authority may have been able to procure would
undoubtedly facilitate that court to form a prima facie opinion with
regard to (i) the gravity of offence; (ii) the degree of involvement of
the applicant; (iii) the background and vulnerability of the witnesses;
(iv) the approximate timeline for conclusion of the trial based on
[2024] 9 S.C.R.
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Arvind Kejriwal v. Central Bureau of Investigation
the number of witnesses; and (v) the societal impact of granting or
denying bail - However, there can be no straitjacket formula which
enumerates that every case concerning the consideration of bail
should depend upon the filing of a chargesheet - In fact, each case
ought to be assessed on its own merits, recognizing that no one-size
fits all formula exists for determining bail - An undertrial thus should,
ordinarily, first approach the trial Court for bail, as this process not
only provides the accused an opportunity for initial relief but also
allows the High Court to serve as a secondary avenue if the trial
Court denies bail for inadequate reasons - If an accused approaches
the High Court directly without first seeking relief from the Trial Court,
it is generally appropriate for the High Court to redirect them to the
Trial Court at the threshold - This issue is however, more or less
academic in the instant case as the High Court did not relegate the
appellant to the trial Court at the preliminary stage - Since notice
was issued and the parties were apparently heard on merits by the
High Court, it not necessary at this stage to relegate the appellant
to the trial Court even though filing of a chargesheet is a change
in the circumstances - Thus, appellant directed to be released on
bail. [Paras 43, 44, 45, 46] [Per Surya Kant, J.]
Code of Criminal Procedure, 1973 - Constitution of India -
Art. 20(3) - Arrest - Grounds of arrest - Detention citing
evasive reply:
Held: The respondent-CBI 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 - One should not forget the cardinal principle
under Article 20(3) of the Constitution that no person accused of
an offence shall be compelled to be a witness against himself.
[Paras 24, 25] [Per Ujjal Bhuyan, J.]
Constitution of India - Art. 20(3) - No person accused of any
offence shall be compelled to be a witness against himself:
Held: Article 20(3) of the Constitution of India states that no person
accused of an offence shall be compelled to be a witness against
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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. [Para 25]
[Per Ujjal Bhuyan, J.]
Bail - Bail jurisprudence:
Held: 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 - 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
Constitution. [Paras 39, 40] [Per Ujjal Bhuyan, J.]
Case Law Cited
In the judgement of Surya Kant, J:
Arnesh Kumar v. State of Bihar [2014] 8 SCR 128 : (2014) 8 SCC
273 - relied on.
Central Bureau of Investigation v. Anupam J. Kulkarni [1992] 3
SCR 158 : (1992) 3 SCC 141; Gudikanti Narasimhulu v. Public
[2024] 9 S.C.R.
689
Arvind Kejriwal v. Central Bureau of Investigation
Prosecutor [1978] 2 SCR 371 : (1978) 1 SCC 240; Union of India v.
K.A. Najeeb [2021] 1 SCR 443 : AIR (2021) SC 712 - referred to.
In the judgement of Ujjal Bhuyan, J:
Kanumuri Raghurama Krishnam Raju v. State of A.P. (2021) 13
SCC 822; Gudikanti Narasimhulu v. Public Prosecutor [1978] 2
SCR 371 : (1978) 1 SCC 240 - relied on.
Manish Sisodia v. CBI (Criminal Appeal No. 3296 of 2024,
decided on 09.08.2024 by the Supreme Court); Joginder Kumar
v. State of U.P. [1994] 3 SCR 661 : (1994) 4 SCC 260; Sidhartha
Vashisht alias Manu Sharma v. State (NCT of Delhi) [2010] 4 SCR
103 : (2010) 6 SCC 1; Arnesh Kumar v. State of Bihar [2014] 8
SCR 128 : (2014) 8 SCC 273; Mohd. Zubair v. State (NCT of
Delhi) [2022] 18 SCR 494 : (2022) SCC Online SC 897; Arnab
Ranjan Goswami v. Union of India [2020] 8 SCR 222 : (2020) 14
SCC 12 - referred to.
List of Acts
Code of Criminal Procedure, 1973; Constitution of India; Penal
Code, 1860; Prevention of Corruption Act, 1988.
List of Keywords
Section 41A of Code of Criminal Procedure, 1973; Section 41(1)(b)
(ii) of Code of Criminal Procedure, 1973; Article 20(3) of Constitution
of India; Section 477A of Penal Code, 1860; Section 7 of Prevention
of Corruption Act, 1988; Bail; Regular bail; Arrest; Grounds of
arrest; Procedural infirmity; Article 21 of Constitution of India;
Charge-sheet; Gravity of offence; Background and vulnerability of
the witnesses; Societal impact of granting or denying bail; Personal
Liberty; Necessity and timing of arrest.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3816 of 2024
From the Judgment and Order dated 05.08.2024 of the High Court
of Delhi at New Delhi in BA No. 2285 of 2024
With
Criminal Appeal No. 3817 of 2024
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Appearances for Parties
Dr. Abhishek Manu Singhvi, N. Hariharan, Vikram Chaudhary,
Narendra Hooda, Sr. Advs., Vivek Jain, Mohd. Irshad, Rajat
Bhardwaj, Karan Sharma, Suchitra Kumbhat, Amit Bhandari, Sadiq
Noor, Rajat Jain, Mohit Siwach, Kaustubh Khanna, Shailesh,
Rishikesh, Indresh Upadhyay, Ms. Arveen, Ms. Muskaan Khurrana,
Advs. for the Appellant.
Suryaprakash V. Raju, A.S.G., Mukesh Kumar Maroria, Zoheb
Hussain, Annam Venkatesh, Vivek Gurnani, Samrat Goswami,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Surya Kant, J.
Leave granted.
2.
These appeals are directed against the judgements and orders dated
05.08.2024 passed by the High Court of Delhi (hereinafter, 'High
Court'), dismissing the Appellant's challenge to his arrest being illegal
as well as his application for the grant of regular bail. Consequently,
the High Court upheld the legality of the Appellant's arrest and has
summarily declined to exercise its concurrent jurisdiction under
Section 439 of the Code of Criminal Procedure, 1973 (hereinafter,
'CrPC'), thereby denying his prayer for regular bail.
Facts:
3.
At the very outset, it is essential to advert to the brief factual
background to provide context to the manner in which the present
proceedings have arisen.
3.1. The Appellant is a public representative and has been elected
thrice the Chief Minister of the Government of National Capital
Territory of Delhi (hereinafter 'GNCTD'). He also happens
to be the National Convenor of Aam Aadmi Party, a political
party in India.
3.2. Central Bureau of Investigation (hereinafter 'CBI') - the
Respondent registered an FIR No. RC0032022A0053
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Arvind Kejriwal v. Central Bureau of Investigation
(hereinafter 'FIR'), on 17.08.2022 under Sections 120B read
with Section 477A of the Indian Penal Code, 1806 (hereinafter
'IPC') and Section 7 of the Prevention of Corruption Act, 1988
(hereinafter 'PC Act') against various persons. The FIR alleged
irregularities, falsification, undue advantage, and a conspiracy
among the persons holding positions of responsibility within
the GNCTD, in framing and implementing the Excise Policy for
the year 2021-2022 (hereinafter 'Excise Policy'). However,
the Appellant's name did not figure in the FIR.
3.3. On 21.03.2024, the Directorate of Enforcement (hereinafter
'ED'), arrested the Appellant in the purported exercise of its
power under Section 19 of the Prevention of Money Laundering
Act, 2002. Subsequently, this Court granted the Appellant
interim bail on 10.05.2024, until 01.06.2024. The Appellant
surrendered thereafter before the jail authorities on 02.06.2024.
We may hasten to add here that the question of law sought to
be raised in the ED matter is presently pending consideration
before a larger bench of this Court and is not relevant to the
present controversy, and its particulars are included solely to
ensure lucidity in the factual matrix.
3.4. The Special Judge vide order dated 20.06.2024 granted the
Appellant regular bail while his bail in the ED matter was pending
before this Court and reserved for judgement. However, the
ED swiftly sought the cancellation of that bail order. The High
Court on 21.06.2024 stayed the operation of that order, as a
result of which, the Appellant continued to remain in jail.
3.5. CBI moved an application on 24.06.2024 before the Special
Judge (PC Act) (hereinafter 'Trial Court') under Section 41A
of the CrPC, seeking to interrogate the Appellant, which
was thereupon allowed. Having completed interrogation
and examination, the CBI filed an application on 25.06.2024
seeking permission to arrest the Appellant and for the issuance
of production warrants. Thereafter, the Trial Court allowed
the CBI's application noting that the accused was already in
judicial custody in the ED matter. In the meantime, the High
Court conclusively stayed the order granting regular bail to the
Appellant in the ED matter on 25.06.2024 itself.
3.6. Shortly thereafter, on 26.06.2024, the Appellant was produced
before the Trial Court, whereupon he was arrested in the instant
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CBI case and a copy of the arrest memo was handed over to the
Appellant's counsel. On the same day, on an application moved
by the CBI, the Trial Court remanded the Appellant to police
custody for five days. Subsequently, on 29.06.2024, the Trial
Court remanded the Appellant to judicial custody till 12.07.2024.
It may be noted that the investigation at that time was ongoing.
3.7. Both the above stated orders dated 26.06.2024 and 29.06.2024
of the Trial Court, came to be challenged by the Appellant
before the High Court vide a Writ Petition, inter alia seeking
a declaration that his arrest was illegal. On 02.07.2024, when
the Petition was heard, the High Court issued notice to the
CBI and scheduled the matter to be heard on 17.07.2024. In
the interregnum, the Appellant also approached the High Court
under Section 439 CrPC, seeking regular bail in connection with
the subject FIR. On 05.07.2024, when the Bail Application came
up for hearing, the High Court issued notice and renotified it to
be heard on 17.07.2024, along with the Writ Petition challenging
the very arrest of the Appellant.
3.8. The High Court extensively heard the matter on 17.07.2024 and
reserved judgement in the Writ Petition. The Bail Application
was renotified for further hearing on 29.07.2024, which was
also reserved. Finally, on 05.08.2024, the High Court vide
the impugned judgement and order upheld the arrest of the
Appellant by the CBI and congruously denied him regular bail,
with liberty to approach the Trial Court for such relief.
3.9. As regard to the legality of the Appellant's arrest, the High
Court upheld the same on the following broad points: (i) The
five circumstances delineated under Section 41(1)(b) of the
CrPC apply only to arrests made without a warrant and does
not pertain to arrests made under the aegis of Section 41(2)
of the CrPC, which is an arrest upon the order of a court;
(ii) The arrest was made in accordance with Section 41(2) of
the CrPC; and (iii) The plea of non-compliance with Section 41A
of the CrPC was totally unsubstantiated.
3.10. As regard to the Appellant's prayer for regular bail, the High
Court has denied the same for the following reasons: (i) The
complexity of the facts and material on record necessitated a
more comprehensive determination of the Appellant's role in the
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Arvind Kejriwal v. Central Bureau of Investigation
alleged conspiracy so as to assess his entitlement to bail; and
(ii) The Bail Application had been filed prior to the chargesheet
being submitted, and since the chargesheet has now been
filed before the Trial Court, the Appellant was directed to first
approach the Court of the Sessions Judge.
3.11. Meanwhile, this Court vide order dated 12.07.2024, passed
in Criminal Appeal No. 2493/2024 directed the Appellant's
release on interim bail in the ED matter.1 However, the Appellant
continues to face incarceration on account of the proceedings
initiated by the CBI.
3.12. The instant appeals are therefore restricted to the Appellant's
challenges regarding the legality and propriety of his arrest by
the CBI and his prayer for release on regular bail in connection
with the proceedings initiated by the CBI via the subject FIR.
Contentions of the Parties
4.
Dr. Abhishek Manu Singhvi, Learned Senior Counsel representing
the Appellant, argued first and foremost that the Appellant had
been arrested illegally, in violation of the procedure enumerated
in Sections 41(1) and 41A of the CrPC. In this vein, he assailed
that the Appellant was arrested without giving any reasons, thus
violating the: (i) precondition of just and valid reasons for the change
of a case from 'non-arrest' to 'arrest' under Section 41A (3) of the
CrPC; and (ii) the mandatory details that have to be fulfilled under
Section 41(1)(b)(ii), to satisfy that the arrest fell within the purview of
any of the clauses (a) to (e). Considering that none of these stipulations
were complied with, the Appellant's arrest is fraught with illegality.
5.
Dr. Singhvi drew our attention to the High Court having erred in
misapplying the provision of Section 41(2) of the CrPC to justify the
non-compliances of Section 41(1)(b)(ii) of the CrPC and consequential
arrest of the Appellant. He highlighted that Section 41(2) is attracted
only to non-cognizable offences, whereas the arrest of the Appellant
was made in a case of cognizable offence. This was fortified by
contending that none of the applications moved by the CBI seeking
remand, sought to invoke Section 41(2). These violations, Learned
Senior Counsel contended, were squarely against the dictum of this
1
Arvind Kejriwal v. Directorate of Enforcement, Criminal Appeal No. 2493/2024
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Court in Arnesh Kumar v. State of Bihar 2 and a plethora of other
subsequent decisions.
6.
Dr. Singhvi further argued that the Appellant deserves to be granted
bail, as his continued incarceration is not necessitated, given that the
entire material is in the safe custody of the CBI. He also emphasized
that the Appellant has been granted both interim and regular bail in
the ED matter by this Court, where the conditions are stricter, thus
demonstrating that he would invariably meet the threshold explicated
by the 'triple test' in the CBI matter as well: he has no criminal
antecedents, is not a flight risk, and poses no threat of tampering with
witnesses or evidence. He also assailed that the High Court ought not
to have relegated the Appellant to the Trial Court, considering that it
exercises concurrent jurisdiction under Section 439 of the CrPC. This
measure, he underscored, was akin to taking the Appellant back to
square one, leading to a travesty of justice and unwarranted delay
in the adjudication of his bail application.
7.
Lastly, Dr. Singhvi drew our attention to the fact that the trial was not
likely to be concluded in the near future, as the FIR was registered
on 17.08.2022, with one chargesheet and three supplementary
chargesheets having been filed, 17 accused persons arraigned, as
many as 224 witnesses cited and the physical and digital records
running into lakhs of pages. Further, the fourth supplementary charge
sheet was filed on 29.07.2024, cognizance of which was taken only
recently, and which was yet to be supplied to the Appellant. These
reasons, he contended, irrefutably validated his apprehension of
reasonable delay in the conclusion of trial.
8.
Per contra, Mr. S.V. Raju, Learned Additional Solicitor General of
India argued that the arrest of the Appellant had been conducted
in due compliance with the statutory procedure as contemplated
in Section 41(1) and 41A of the CrPC. He contended that these
provisions do not, in any manner, mandate a blanket ban on the
arrest of an individual, against whom there is a reasonable suspicion
of commission of a cognizable offence, punishable with imprisonment
up to seven years. The law only stipulates that the investigating
authority ought to be satisfied with the necessity of such an arrest,
which has been duly met in the present case. He strenuously
2
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
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Arvind Kejriwal v. Central Bureau of Investigation
urged that the pre-requisites set out in Section 41(1)(b)(ii) had been
fulfilled as the CBI deemed it imperative to conduct the custodial
interrogation of the Appellant to unearth a larger conspiracy hatched
amongst the accused persons and to establish the money trail of
ill-gotten proceeds.
9.
Mr. Raju contended that the requirement of notice under Section 41A
of the CrPC is intended solely to compel the accused to appear
before the investigating authority. Since the accused in the instant
case was already in judicial custody, such notice would have been
an empty formality. He argued that the CBI had obtained permission
from the Trial Court, under whose custody the Appellant was. He
supported his contention by referencing Section 41A (4) of the
CrPC, which outlines the procedure for situations where an accused
fails to comply with a Section 41A notice. Mr. Raju maintained that,
given the Appellant's incarceration, the circumstance envisaged
under Section 41A (4) becomes inapplicable, and therefore, the
requirement of notice thereunder was not necessary. In regard to
the misgivings on the erroneous application of Section 41(2) of the
CrPC, he explained that the High Court had inadvertently mistyped
the provision and that it ought to be read as Section 41(1)(b)(ii) of
the CrPC instead.
10. While strongly opposing the Appellant's prayer for bail, Mr. Raju
contended that there was a likelihood of witness intimidation, should
the Appellant be released on bail, resulting in the trial proceedings
being severely derailed. Mr. Raju also alluded to certain instances
having occurred in the context of M/s. Mahadev Liquors of Punjab,
thus pointing to the influence exerted by the Appellant, whose political
outfit is ruling more than one State.
11. Mr. Raju vehemently pressed into aid his preliminary objection to
relegate the Appellant to the Trial Court, who he stressed ought not
to have approached the High Court directly, notwithstanding the
concurrent jurisdiction under Section 439 of the CrPC. He urged that
the Appellant should not be granted any special treatment merely
because of the position of power he holds or his political stature.
Mr. Raju canvassed that the Appellant deserves to be treated like
any other undertrial and, hence, he must firstly approach the Trial
Court, emphasizing that the High Court's jurisdiction is discretionary
and should be exercised only in rare and exceptional circumstances.
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12. According to the Learned ASG, the High Court was correct in refusing
to exercise its jurisdiction because the Appellant had failed to make
out an exceptional case warranting such special scrutiny. Furthermore,
Mr. Raju highlighted a significant anomaly: the Appellant's failure to
annex the chargesheet while applying for bail. He argued that a crucial
aspect of seeking bail is to demonstrate, based on the material on
record, that no prima facie case exists against the accused. Due to
these oversights, Mr. Raju asserted that the Appellant should first
seek relief from the Trial Court.
13. Lastly, Mr. Raju submitted that since the chargesheet and some
supplementary chargesheets have been filed after the Appellant
had approached the High Court for his enlargement on bail, it is a
significant change in circumstances and therefore, in light of this too
the Appellant should be relegated to the Trial Court. Such relegation
would aid in his bail claim being considered with reference to the
nature of evidence gathered by the CBI and the complicity of the
Appellant, if any, as may be discernible from such evidence.
Issues
14. Having considered the material on record and the extensive
submissions made by the parties, the following questions fall for our
deliberation:
i.
Whether there was any illegality in the Appellant's arrest? If so,
whether the Appellant is entitled to be released forthwith, even
in the absence of a formal bail application?
ii.
Whether the Appellant, regardless of his lawful arrest, is entitled
to be enlarged on regular bail?
iii.
Whether the filing of a chargesheet is a change in circumstances
of such a decisive nature that an accused would be liable to
be relegated to the Trial Court to make out a case for grant of
regular bail?
Analysis
15. We have bestowed our consideration to the rival contentions, along
with the sequence of events that culminated in the Appellant's
arrest. Given the nature of the issues pending determination, it
is essential to address them each independently and arrive at a
definitive conclusion.
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Arvind Kejriwal v. Central Bureau of Investigation
A.
Whether the procedure undertaken in arresting the
Appellant was illegal?
16. The primary basis for the Appellant's challenge rests on the contention
that the procedure for arrest, as outlined under Sections 41(1)(b)
(ii) and 41A of the CrPC, was not complied with. For the purpose
of analysing the legality of the Appellant's arrest, there are two key
aspects which we propose to examine separately, namely: (i) whether
the issuance of a notice under Section 41A of the CrPC was duly
complied with, in the context of the present factual scenario; and
(ii) whether Section 41(1)(b)(ii) of the CrPC is applicable in the facts
and circumstances of this case.
i.
Compliance with Section 41A of the CrPC
17. Section 41A of the CrPC pertains to the issuance of a notice by a
police officer to an individual when their arrest is not warranted under
Section 41(1) of the CrPC, but their presence is still required before
the investigating authority. Issuance of a notice under Section 41A(1)
therefore would be imminent, when there is a complaint made, credible
information received or there is a reasonable suspicion of the individual
having committed a cognizable offence. Clause (2) of Section 41A
thereafter, demands that an individual to whom such a notice has
been issued, complies with the same. Section 41A (3) bears out that
an individual who complies and continues to comply with such notice
is not to be arrested in respect of the offence mentioned, unless the
police officer, for reasons to be recorded, deems it necessary to
arrest them. Finally, Section 41A (4) stipulates that if an individual
fails to comply with the notice or refuses to identify themself, the
police may arrest such an individual for the offence recorded in the
notice, subject to any orders passed by a competent court.
18. Given the lucid nature of the language of the provision, it is crucial
to examine the circumstances surrounding the Appellant's arrest in
order to gauge whether there was due compliance with the procedural
safeguards enshrined within Section 41A. In the present context,
since the Appellant was already in judicial custody at the relevant
time in the ED case, the CBI filed an application on 24.06.2024 before
the Trial Court under Section 41A of the CrPC, inter alia seeking
to interrogate and examine him. Such examination was allegedly
necessitated by new facts and evidence uncovered by the CBI
upon further investigation. The CBI, vide this application, outlined
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the reasons prompting such examination, including the purported
irregularities in the framing and implementation of the Excise Policy,
and its manipulation to facilitate the monopolization and cartelization
of wholesale and retail liquor trade in India.
19. The application also alleged that, upon further investigation, statements
from several witnesses, incriminating documents and messages
exchanged between the accused persons named in the chargesheets,
revealed that the Appellant was a critical component in the criminal
conspiracy related to the Excise Policy. It was claimed that the
Appellant, in connivance with the other accused persons, engaged in
tweaking the policy to enhance the profit margin of wholesalers from
5% to 12%, resulting in significant windfall gains. These gains were
ultimately alleged to have been utilised by the Appellant's political party
towards election related expenses, during the 2021-22 Goa Assembly
elections. The application highlighted that the emergence of these
new facts, pointing toward the Appellant's complicity, required further
examination, as there was reasonable suspicion of his involvement
in the commission of the offence. Upon considering these reasons,
the Trial Court, by its order dated 24.06.2024, allowed the CBI's
application seeking to interrogate the Appellant.
20. At this juncture, it is pertinent to first address the Appellant's allegations
regarding the CBI's non-compliance with Section 41A of the CrPC,
particularly concerning the issuance of notice or lack thereof. In this
regard, it is crucial to draw reference to the language and intent of the
provision, which aims to ensure an individual's appearance through
the issuance of a notice. The provision, however, does not outline any
express procedure to be undertaken where the individual in question
is already incarcerated. It is to be remembered that the Court is, in
a way, the guardian of an undertrial, while he is in judicial custody.
That being so, there could possibly be no other way to secure the
Appellant's physical presence for the purpose of further investigation,
except to seek prior permission of the Trial Court for his interrogation.
21. In fact, given what was contended by the Appellant, it must be explicated
that Section 41A does not envisage or mandate the issuance of a
notice to an individual already in judicial custody. As such a person
is already under the court's authority, any request to include them in
an investigation in another case must be approved by the competent
court. The CBI has thus followed the procedure which is contemplated
in terms of the intent and purpose of Section 41A CrPC.
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22. Contrarily, if the Appellant's contention is taken to its logical conclusion,
it could lead to detrimental consequences. For instance, serving a
notice upon an undertrial in jail through the Jail Superintendent,
without informing the court that placed them in judicial custody, would
effectively enable the police to arrest such individuals in a new case
without the court's knowledge. This could result in a misuse of police
authority and a violation of the Constitutional and procedural rights
afforded to undertrials. Alternatively, when the court's permission is
sought, it ensures the application of judicial scrutiny to assess whether
custodial interrogation is necessary and, if so, for what duration.
23. In the case in hand, the Trial Court's approval of the CBI's application
to interrogate the Appellant should be viewed as satisfying the
essential requirements of Section 41A, as the issuance of a formal
notice through the jail authorities would have had an adverse impact
on the rights of the Appellant. Thus, it is our considered view that the
CBI complied with the procedure encompassed within the framework
of Section 41A of the CrPC.
24. That being said, let us now address the specific contention pertaining
to the alleged violation of Section 41A(3) of the CrPC. The provision
elucidates, at the risk of reiteration, that an individual who complies
with the notice issued under Section 41A should not be arrested,
unless the police officer for reasons recorded, opines that arrest
is necessary. The vital takeaway from this provision is that while
compliance with the notice generally shields an individual from arrest,
the police may still proceed with the arrest if they conclude that it is
essential and provide duly recorded reasons for doing so.
25. In the present case, following the interrogation, the CBI moved another
application to the Trial Court on 25.06.2024, seeking permission to
arrest the Appellant.