Arvind Kejriwal case: 'Arrest unjustified, incarceration untenable'

Justice Surya Kant and Justice Ujjal Bhuyan of the Supreme Court had reserved their order on 5 September after hearing the Delhi chief minister’s appeal against Delhi High Court’s order denying him bail last month.

The Central Bureau of Investigation (CBI) had argued before the Supreme Court that, among other things, releasing the Delhi chief minister on bail would "demoralise and demotivate" the Delhi High Court.

The shocked justices had waved away the argument, saying ‘Don’t say that.’

However, in addition to the matter of actually granting bail, Justice Bhuyan — who agreed with Justice Surya Kant that the Delhi chief minister deserved to be released on bail — wrote a separate judgement questioning his arrest, continued detention and denial of bail.

Both Justice Surya Kant and Justice Bhuyan took note of the fact that all other main accused in the case, namely Manish Sisodia, Sanjay Singh and BRS leader K. Kavitha have already been granted bail.

It was wrong for the CBI to say that the arrest of Arvind Kejriwal was justified because he gave evasive relies and was not cooperating with the investigation, the court noted. The accused, Justice Bhuyan reminded the CBI, has the right to remain silent.

Cooperation with the investigation, he reminded the agency, does not mean that the accused would give the answers that the agency desired. Cooperation would mean allowing access to relevant documents and records, not incriminating himself.

In a scathing indictment of the CBI, justice Bhuyan reminded the agency that it is imperative for the CBI to dispel the notion that the agency is a caged parrot.

The agency cannot make arrests in a high-handed and biased manner and ‘every effort must be made to remove the perception that the investigation was not carried out fairly’, said the judge.

Justice Bhuyan also questioned the need and timing of Arvind Kejriwal's arrest, and ruled that his further detention was wholly untenable, especially considering that he had already been granted bail in the money-laundering case registered against him by the Enforcement Directorate (ED).

The CBI did not arrest Kejriwal for more than 22 months, Justice Bhuyan noted, and delayed his arrest just ahead of his release in the ED case: ‘The CBI case was registered on 17.08.2022. Kejriwal was arrested by the ED on 21.03.2024; but although the had interrogated him on 16.04. 2023, the agency did not feel the necessity to arrest him for over 22 months.’

Noting that such action on the part of the CBI raised a serious question mark on the timing of the arrest and on the arrest itself, Justice Bhuyan wrote in the judgement that a plausible conclusion one could draw was that the arrest was only meant to frustrate the bail granted to the accused in the ED case and prevent his release from prison.

Reiterating that an accused is innocent until proven guilty by a competent court, Justice Bhuyan reiterated the Supreme Court’s view that ‘bail is the rule and jail is the exception’. Courts therefore must ensure that the process does not end up becoming the punishment.

‘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,’ recorded Justice Bhuyan.

He also expressed serious reservations about the bail conditions imposed on the Delhi chief minister in the ED case earlier. The conditional bail debars him from entering the chief minister’s office or the Delhi secretariat and from signing official files.

However, considering that the conditions had been imposed in a separate case by a different bench, he added, he would refrain from commenting further as a matter of discipline.