Kejriwal is free after Supreme Court grants bail, judge puts CBI in the dock

In separate but concurring orders, the bench of Justices Surya Kant and Ujjal Bhuyan extended the bail conditions imposed in the ED matter to the CBI case as well. This means that Kejriwal will not be able to visit the office of the Chief Minister and the Delhi Secretariat or sign official files unless it is required and necessary for obtaining clearance/approval of the Lieutenant Governor of Delhi.

Justice Bhuyan, who made strong observations against the CBI including remarks that the “arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case” and “it is imperative that CBI dispel the notion of it being a caged parrot”, said he had “serious reservations” on the bail conditions but “having regard to judicial discipline, I would refrain from further expressing my views thereon at this stage”.

The bench directed that he be released on bail upon furnishing bail bonds for a sum of Rs 10,00,000 with two sureties of such amount to the satisfaction of the trial court.

Kejriwal had filed two petitions before the Supreme Court, one challenging the Delhi High Court order refusing to quash his arrest and another challenging the direction to approach the trial court for bail.

Justice Surya Kant, in his order, upheld the AAP leader’s arrest by the CBI saying it “does not suffer” from “any procedural infirmity” while Justice Bhuyan said he was 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”.

Kejriwal had alleged that the CBI had not complied with the requirements of Section 41A of the CrPC when it sought permission from the trial court for his interrogation while he was already in judicial custody in connection with the ED case. The provision states that a police officer may issue notice to a person seeking his appearance in cases where the arrest of the person is not required.

Justice Surya Kant said 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”.

He said “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” and therefore his “arrest by the CBI was thus entirely permissible, in light of the Trial Court’s order dated 25.06.2024” allowing it.

Justice Surya Kant’s order also directed that Kejriwal “shall not make any public comments on the merits of the CBI case, it being sub judice before the Trial Court” and said “this condition is necessitated to dissuade a recent tendency of building a self-serving narrative on public platforms”.

On bail, Justice Surya Kant said the CBI had filed a chargesheet along with four supplementary chargesheets in the matter. “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,” he said.

He said while “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… 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, recognising that no one-size fits all formula exists for determining bail”.

While he agreed with Justice Surya Kant on the question of granting bail, Justice Bhuyan differed on the question of Kejriwal’s arrest by the CBI saying it “raises more questions than it seeks to answer” and “Like Caesar’s wife, an investigating agency must be above board”.