The Supreme Court on Friday ordered Delhi Chief Minister Arvind Kejriwal to be released on regular bail in a case registered by the Central Bureau of Investigation (CBI) regarding the now-scrapped excise policy.
Justices Surya Kant and Ujjal Bhuyan concurred in granting bail to Kejriwal but differed on the legality of his arrest by the central investigating agency.
Justice Kant barred Kejriwal from visiting the office of the Chief Minister and the Delhi Secretariat or signing official files unless they were required and necessary to obtain clearance/approval from the Lieutenant Governor of Delhi. These two conditions were adopted from the July 12 order of the apex court granting the Chief Minister bail in a connected money laundering case investigated by the Directorate of Enforcement (ED).
Justice Bhuyan, however, said he had “serious reservations” about the two bail conditions but refrained from delving further into them as they were part of the July 12 order in a different case heard by a Coordinate Bench of the apex court. His restraint would mean the two bail conditions would now be effective.
The judgment was based on petitions filed by Kejriwal, represented by senior advocate A.M. Singhvi, seeking bail and quashing his arrest by the CBI on June 26.
While Justice Kant said the CBI arrest warranted no interference as it did not suffer “procedural infirmity,” Justice Bhuyan wrote a separate opinion without mincing words questioning its timing and necessity.
Justice Bhuyan questioned the urgency shown by the CBI to arrest Kejriwal 22 months after the registration of the First Information Report (FIR) in the case. The judge rubbished the excuse that Kejriwal’s arrest was necessary as he gave “evasive” responses to his interrogators. An accused cannot be branded non-cooperative because he did not answer questions the way his interrogators wanted them answered, he reasoned.
“Every accused had a right to remain silent… No adverse inference can be drawn from the silence of an accused. An accused cannot be forced to make inculpatory statements against himself,” Justice Bhuyan stated.
Noting that the power of arrest must be used sparingly and is not a ruse for harassment, Justice Bhuyan urged the CBI to be above board in its actions like “Caesar’s wife” and give the public the perception of an “uncaged parrot”.
Justice Bhuyan said the timing of the CBI arrest was suspect, as the Chief Minister had been on the ‘cusp of release’ from jail following a Special Court order granting him bail in the money-laundering case. The arrest’s timing invited the view that it was meant to “frustrate” Kejriwal’s release, he observed.
Singhvi had termed the CBI arrest an “insurance arrest”.
“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, the Supreme Court had castigated the CBI for being a caged parrot. It is imperative that CBI dispel this notion. Rather, the perception should be that of an uncaged parrot,” Justice Bhuyan wrote.
On the point of bail, both judges agreed that Kejriwal’s continued incarceration violated his right to personal liberty. The CBI lodged its FIR in August 2022. So far, five chargesheets, arraigning 224 witnesses and 17 additional accused, have been filed in the trial court. The documentary evidence was extensive.
“There is no likelihood of the completion of the trial in the immediate future,” Justice Kant surmised.
Justice Bhuyan found no reason to hold Kejriwal captive in the CBI case when he had already been granted bail multiple times under the stringent provisions of the Prevention of Money Laundering Act.
The apex court refused to relegate the bail plea to the trial court. The Bench dismissed the CBI’s apprehensions that Kejriwal would influence witnesses and tamper with the evidence.
The court ordered Kejriwal to pay bail bonds of ₹10 lakh with two sureties and barred him from making any public comments about the CBI case to avoid “building a self-serving narrative” about a sub judice matter, especially on social media networks.