2024 Supreme(SC) 778

SUPREME COURT OF INDIA
SURYA KANT, UJJAL BHUYAN, JJ.
Arvind Kejriwal – Appellant
Versus
Central Bureau of Investigation – Respondents
Criminal Appeal No. 3816 of 2024 (Arising out of Special Leave Petition (Crl.) No. 11023 of 2024) With Criminal Appeal No. 3817 of 2024 (Arising out of Special Leave Petition (Crl.) No. 10991 of 2024)
Decided On : 13-09-2024

IMPORTANT POINTS
(1) 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.
(2) Delhi Liquor scam – Power to arrest is one thing but need to arrest is altogether a different thing – Just because investigating agency has power to arrest, it does not necessarily mean that it should arrest such a person.
(3) Right against self-incrimination – No person accused of an offence shall be compelled to be a witness against himself – Accused has right to remain silent; he cannot be compelled to make inculpatory statements against himself.

Headnote:

Per Surya Kant, J.

(A) Criminal Procedure Code, 1973 – Sections 41A and 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 35 and 483] – Prevention of Money Laundering Act, 2002 – Section 19 – Indian Penal Code, 1860 – Sections 120B read with Section 477A – Prevention of Corruption Act, 1988 – Section 7 – Validity of arrest – Delhi Liquor scam – Appellant is Chief Minister of Delhi – Trial Court’s approval of CBI’s application to interrogate Appellant should be viewed as satisfying essential requirements of Section 41A, as issuance of a formal notice through jail authorities would have had adverse impact on rights of Appellant – CBI complied with procedure encompassed within framework of Section 41A of Cr.P.C. – While compliance with notice generally shields an individual from arrest, police may still proceed with arrest if they conclude that it is essential and provide duly recorded reasons for doing so – There is no impediment in terms of arresting a person already in custody for the purposes of investigation, whether for same offence or for an altogether different offence – Appellant’s arrest by CBI was entirely permissible, in light of Trial Court’s order dated 25.06.2024 – Appellant’s arrest does not suffer with any procedural infirmity. (Paras 23, 24, 26 and 36)

(B) Prevention of Money Laundering Act, 2002 – Section 43-D(5) – Indian Penal Code, 1860 – Sections 120B read with Section 477A – Prevention of Corruption Act, 1988 – Section 7 – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Bail application – Delhi Liquor scam – Appellant is Chief Minister of Delhi – Prolonged incarceration of an accused person, pending trial, amounts to unjust deprivation of personal liberty – Although procedure for Appellant’s arrest meets requisite criteria for legality and compliance, continued incarceration for an extended period pending trial would infringe upon established legal principles and Appellant’s right to liberty, traceable to Article 21 of our Constitution – Given Appellant’s position and his roots in society, there seems to be no valid reason to entertain apprehension of his fleeing country – All evidence and material relevant to CBI’s disposition is already in their possession, negating likelihood of tampering by Appellant – Appellant satisfies requisite triple conditions for grant of bail – Bail granted to appellant – 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 present case. (Paras 38, 40, 41, 42 and 47)

(C) Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Bail application – An undertrial thus should, ordinarily, first approach Trial Court for bail, as this process not only provides accused an opportunity for initial relief but also allows High Court to serve as a secondary avenue if Trial Court denies bail for inadequate reasons – This approach is beneficial for both accused and prosecution – If bail is granted without proper consideration, prosecution too can seek corrective measures from High Court – However, superior courts should adhere to this procedural recourse from outset – If accused approaches High Court directly without first seeking relief from Trial Court, it is generally appropriate for High Court to redirect them to Trial Court at threshold – Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to Trial Court at a later stage – Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities. (paras 44 and 45)

Per Ujjal Bhuyan, J. (Separate Assenting View)

(A) Prevention of Money Laundering Act, 2002 – Section 43-D(5) – Indian Penal Code, 1860 – Sections 120B read with Section 477A – Prevention of Corruption Act, 1988 – Section 7 – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Bail application – Delhi Liquor scam – Appellant is Chief Minister of Delhi – For 22 months, CBI did not arrest appellant but after Special Judge grants regular bail to appellant in ED case, CBI seeks his custody – In the circumstances, a view may be taken that such arrest by CBI was perhaps only to frustrate bail granted to appellant in ED case – It cannot be the proposition that only when accused answers questions put to him by investigation agency in the manner in which investigating agency would like accused to answer, would mean that accused is cooperating with investigation – Respondent cannot justify arrest and continued detention citing evasive reply – It would be a travesty of justice to keep appellant in further detention in CBI case, more so, when he has already been granted bail on same set of allegations under more stringent provisions of PMLA – Power to arrest is one thing but need to arrest is altogether a different thing – Just because investigating agency has power to arrest, it does not necessarily mean that it should arrest such a person – CBI is a premier investigating agency of country – It is in public interest that CBI must not only be above board but must also be seem to be so – Perception should be that of an uncaged parrot – Belated arrest of appellant by CBI is unjustified and continued incarceration of appellant in CBI case that followed such arrest has become untenable – Bail granted to appellant. (Paras 23, 24, 25, 27, 32, 33, 41, 43 and 44)

(B) Constitution of India – Article 20(3) – Right against self-incrimination – No person accused of an offence shall be compelled to be a witness against himself – Accused has right to remain silent; he cannot be compelled to make inculpatory statements against himself – No adverse inference can be drawn from silence of accused – Protection is available to a person against whom a formal accusation has been made, though actual trial may not have commenced and if such accusation relates to commission of an offence which in normal course may result in prosecution. (Para 25)

Facts of the case:

Present appeals are directed against judgements and orders dated 05.08.2024 passed by High Court of Delhi, dismissing Appellant’s challenge to his arrest being illegal as well as his application for the grant of regular bail. Consequently, High Court upheld legality of Appellant’s arrest and has summarily declined to exercise its concurrent jurisdiction under Section 439 of Code of Criminal Procedure, 1973 thereby denying his prayer for regular bail.

Findings of Court:

Belated arrest of appellant by CBI is unjustified and continued incarceration of appellant in CBI case that followed such arrest has become untenable.

Result : Appeals disposed of.