Arvind Kejriwal vs Central Bureau of Investigation

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 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.]

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 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 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.]