Kejriwal's bail: SC highlights possible denial of personal liberty through long trial ahead

New Delhi: The verdict which granted Delhi Chief Minister Arvind Kejriwal a major relief through bail in the corruption case linked to the alleged liquor policy scam, contains some observations about law's delay and its possible deprivation of personal liberty, even as the bail set certain conditions on the accused.

The bail conditions bar Kejriwal from making any public remarks about the case. Justice Surya Kant, heading a two-judge bench, also dismissed Kejriwal's distinct plea challenging the legality of arrest by the Central Bureau of Investigation (CBI) in the alleged scam and the subsequent remand.

Justice Kant held that there exists “no merit” in the contention that the CBI failed to adhere to the procedural law governing arrest and that Kejriwal's arrest did not suffer from any procedural infirmities.

However, the part that countered the CBI's plea for prolonged incarceration is the court's mention of the possibly long trial ahead for the case which will justify the accused being released on bail.

“We have pointed out that (CBI’s) FIR was registered in August 2022 and four supplementary charge sheets have been filed. Additionally, 17 accused persons have been named, over 200 individuals have been identified as witnesses and extensive documents, both physical and digital, have been submitted. These factors suggest that completion of the trial is unlikely to occur in the immediate future,” said Justice Kant, adding that “prolonged incarceration of an accused person pending trial amounts to an unjust deprivation of personal liberty.”

The bench asked CM Kejriwal “to not make any public comments” in relation to the pending CBI case.

“The terms and conditions imposed by the coordinate bench in ED matter shall apply in this case also. The appellant (Kejriwal) shall remain present before the trial court on each and every date of the hearing unless granted an exemption. He shall fully cooperate with the trial court for expeditious completion of trial proceedings,” directed Justice Kant-led Bench.

In his concurring opinion, the other judge, Justice Ujjal Bhuyan, agreed with the release of Kejriwal on bail but raised several questions on the necessity and timings of arrest by the CBI.

“The arrest by the CBI raises more questions than it seeks to answer. The CBI case was registered in August 2022. The CBI did not feel the necessity to arrest the appellant (Kejriwal) though it had interrogated him a year back. It appears that only after the trial court granted him regular bail in the ED case on June 20, which was later stayed by the Delhi High Court on an oral mentioning made by the ED, the CBI became active and sought custody of the appellant,” Justice Bhuyan said.

Castigating the CBI, Justice Bhuyan added that CBI did not feel the necessity for Kejriwal’s arrest for 22 months and it was only after the trial court’s regular bail in the ED case, that the “activated its machinery” and took the AAP supremo into custody.

Further, Justice Bhuyan said, “Such an arrest raises a serious question mark on the timings of arrest by the CBI, rather than the arrest itself. In these circumstances, a view may be taken that such an arrest by the CBI was taken perhaps only to frustrate the bail granted to the appellant (Kejriwal) in the ED case.”

Justice Bhuyan said that though he has “serious reservations” on bail conditions prohibiting CM Kejriwal from entering Delhi’s secretariat or signing official files, but “refrained from expressing further views at this stage since those conditions have been imposed in ED case” having regard to judicial discipline and propriety.

In effect, the two judges concurred that CM Kejriwal is entitled to be released on bail.

Last week, the top court reserved its decision after hearing the oral arguments advanced by senior advocate Abhishek Manu Singhvi, representing the Aam Aadmi Party (AAP) supremo, and Additional Solicitor General (ASG) S.V. Raju, who appeared on behalf of the CBI.

During the hearing, Singhvi contended that the CBI did not arrest CM Kejriwal for two years but made an "insurance arrest in a hurry" to prevent his release in the money laundering case. The CBI arrested Kejriwal for "his non-cooperation and evasive replies" but there were several apex court judgments that held that cooperation with the probe should not mean that the accused should incriminate himself and confess to the offences alleged, he said. Singhvi added that CM Kejriwal, a constitutional functionary holding the position of Delhi Chief Minister, satisfied the triple test for grant of bail. “He is not a flight risk, he will turn up to answer the questions of the investigative agency, and cannot tamper with documents, running into lakhs of pages, and digital evidence after two years," he submitted.

The Supreme Court, on July 12, ordered CM Kejriwal to be released on interim bail in connection with the money laundering case lodged by the Enforcement Directorate (ED). However, he was not able to walk out of jail then following his arrest by the CBI.

On the other hand, the central agency apprehended that the release of CM Kejriwal would turn many witnesses "hostile" and urged the apex court to not release him on bail. ASG Raju said that many candidates of the AAP in the Goa Assembly election came forward to give their statements to the central agency only after CM Kejriwal was arrested. "They (witnesses) will turn hostile if your lordships release Kejriwal on bail," he argued.

He argued that CM Kejriwal’s plea for bail should be remanded back to the trial court and he should not have petitioned the Delhi High Court for bail in the first instance.

The ASG submitted that arrest is a part of investigation and ordinarily, an investigating officer will not require any permission from a court to make an arrest. "But, in the present case, there was an order of the court granting the power (to arrest)," he said. He added that when an arrest is made pursuant to an order of the court, an accused cannot take a plea of violation of fundamental rights.

Recently, the top court allowed bail pleas of senior AAP leader and former Delhi Deputy Chief Minister Manish Sisodia, BRS leader K. Kavitha, and AAP's former communication-in-charge Vijay Nair in the excise policy case.

(Inputs from IANS with minor edits)