35.

Lastly, we are inclined to agree with the explanation given by the Learned

ASG that the reference to Section 41(2) of the CrPC in the High Court's

judgment appears to have been included inadvertently and is a

typographical error. Both parties, during their submissions, have rightly

clarified that Section 41(2) which pertains to the procedure of arrest in

non-cognizable offences, does not apply to the facts and circumstances

here.

36. Having considered the CBI's compliance with Section 41A of the CrPC

and the inapplicability of Section 41(1)(b)(ii) of the CrPC, we are thus of

the view that the Appellant’s arrest does not suffer with any procedural

infirmity. Consequently, the plea regarding non-compliance of these

provisions, merits rejection. Ordered accordingly.

B. Whether the Appellant is entitled to the relief of regular bail?

37. Adverting to the question of granting bail to the Appellant, it may be

noticed that the High Court has viewed that due to the complexity and

web of facts and the material on record, it was crucial to comprehensively

determine the role of the Appellant in the alleged conspiracy and then

only decide his entitlement to bail. The High Court further observed that

considering the charge sheet had been filed before the Trial Court, the

Appellant should first seek relief from that court.

38. The evolution of bail jurisprudence in India underscores that the ‘issue

of bail is one of liberty, justice, public safety and burden of the public

treasury, all of which insist that a developed jurisprudence of bail is

21 | P a g e
 integral to a socially sensitised judicial process’.4 The principle has

further been expanded to establish that the prolonged incarceration of

an accused person, pending trial, amounts to an unjust deprivation of

personal liberty. This Court in Union of India v. K.A. Najeeb has

expanded this principle even in a case under the provisions of the

Unlawful Activities (Prevention) Act, 1967 (hereinafter ‘UAPA’)

notwithstanding the statutory embargo contained in Section 43-D(5) of

that Act, laying down that the legislative policy against the grant of bail

will melt down where there is no likelihood of trial being completed within

a reasonable time.5 The courts would invariably bend towards ‘liberty’

with a flexible approach towards an undertrial, save and except when the

release of such person is likely to shatter societal aspirations, derail the

trial or deface the very criminal justice system which is integral to rule

of law.

39. It was submitted during these proceedings that 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 we are informed that

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,

4 Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.

5 Union of India v. K.A. Najeeb, AIR 2021 SC 712.

22 | P a g e
 has been submitted. These factors suggest that the completion of the

trial is unlikely to occur in the immediate future.

40. In our considered view, 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.

41. 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. Similarly, given the Appellant’s

position and his roots in the society, there seems to be no valid reason

to entertain the apprehension of his fleeing the country. In any case, in

order to assuage the apprehensions of the CBI, we may impose stricter

bail conditions. As regard to Appellant indulging in influencing

witnesses, it needs no emphasis that in the event of any such instance,

it will amount to misuse of the concession of bail and necessary

consequences will follow.

23 | P a g e
42. Therefore, in the light of these extenuating circumstances and

considering the foregoing analysis, it could be resolved that the Appellant

satisfies the requisite triple conditions for the grant of bail. We order

accordingly.

C. Whether the filing of a chargesheet is a change in circumstances

warranting relegation to the trial court for grant of regular bail?

43. 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.

44. 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. This

approach is beneficial for both the accused and the prosecution; if bail

24 | P a g e
 is granted without proper consideration, the prosecution too can seek

corrective measures from the High Court.

45. However, superior courts should adhere to this procedural recourse from

the outset. 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. Nevertheless,

if there are significant delays following notice, it may not be prudent to

relegate the matter to the 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.

46. 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, we do not deem it

necessary at this stage to relegate the Appellant to the Trial Court even

though filing of a chargesheet is a change in the circumstances.

CONCLUSION:

47. We, thus, deem it appropriate to pass the following order:

i. The Criminal Appeal challenging the legality of arrest (arising out of

SLP (Crl.) No. 10991/2024) is, hereby, dismissed.

25 | P a g e
ii. The Criminal Appeal (arising out of SLP (Crl.) No. 11023/2024) is

allowed and the impugned judgement of the High Court dated

05.08.2024, to that extent is set aside. Consequently,

a. the Appellant is directed to be released on bail in connection

with FIR No. RC0032022A0053/2022 registered by the CBI at

PS CBI, ACB, upon furnishing bail bonds for a sum of Rs.

10,00,000 /- with two sureties of such like amount, to the

satisfaction of the Trial Court;

b. the Appellant shall not make any public comments on the

merits of the CBI case, it being sub judice before the Trial Court.

This condition is necessitated to dissuade a recent tendency of

building a self-serving narrative on public platforms;

c. however, this shall not preclude the Appellant from raising all

his contentions before the Trial Court;

d. the 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 the present case;

e. the Appellant shall remain present before the Trial Court on

each and every date of hearing, unless granted exemption; and

26 | P a g e
 f. the Appellant shall fully cooperate with the Trial Court for

expeditious conclusion of the trial proceedings.

48. Pending applications, if any, shall stand disposed of in the above terms.

49. Ordered accordingly.

………..………………… J.
(SURYA KANT)

NEW DELHI
DATED: 13.09.2024

27 | P a g e
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3816 OF 2024

@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 11023 OF 2024

ARVIND KEJRIWAL APPELLANT(S)

VERSUS

CENTRAL BUREAU OF INVESTIGATION RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.3817 OF 2024

@ SPECIAL LEAVE PETITION (CRIMINAL) No. 10991 OF 2024

JUDGMENT

UJJAL BHUYAN, J.

I have gone through the draft judgment of my

esteemed senior colleague Justice Surya Kant. I am in complete

agreement with the conclusion and direction of his Lordship that

the appellant should be released on bail. However, on the

necessity and timing of the arrest, I have a definite point of view.

 2

Therefore, I deem it appropriate to render a separate opinion on

the point of necessity and timing of the arrest of the appellant

while concurring with the opinion of Justice Surya Kant that the

appellant should be released on bail.

2. Leave granted.

3. At the outset, a brief recital of the relevant dates and

the attending facts as borne out from the record may be noted.

3.1. A case was registered by the CBI on 17.08.2022 being

RC No. 0032022A0053 under Section 120B read with Section

477A of IPC and Section 7 of the PC Act. The aforesaid case was

registered on the basis of source information as well as on the

basis of a written complaint received from Shri Praveen Kumar

Rai, Director, Ministry of Home Affairs, Government of India

dated 22.07.2022. This letter also conveyed complaint dated

20.07.2022 of Shri Vinay Kumar Saxena, Lieutenant Governor of

the Government of National Capital Territory of Delhi. The

complaint sought for enquiry into the irregularities and

manipulation in the framing and implementation of the excise

policy of the Government of National Capital Territory of Delhi

(GNCTD) for the year 2021­22. The precise allegation is that the
 3

accused persons had deliberately tweaked and manipulated the

excise policy of 2021­22 which resulted in enhanced profit of the

liquor manufacturers, wholesalers and retailers in lieu of illegal

gratification received by the accused persons from what is called

the “south group” to meet the election related expenses of the

Aam Admi Party at Goa.

3.2. On 14.04.2023, appellant received summons under

Section 160 Cr.P.C. from the CBI to appear before it on

16.04.2023. In compliance thereto, appellant appeared before the

CBI on 16.04.2023. According to the appellant, he was

questioned by the CBI for about 9 to 10 hours.

3.3. CBI filed a total of four chargesheets wherein 17

persons were named as accused. Manish Sisodia and Kavitha

Kalvakuntala were named as accused amongst others. Appellant

Shri Arvind Kejriwal was not named as an accused in the said

chargesheets. The gist of the chargesheets is that the excise

policy in question was a result of criminal conspiracy which was

hatched by a cartel of liquor manufacturers, wholesalers and

retailers ensuring undue gain to them in lieu of pecuniary

 4

benefits to the accused persons. Such criminal conspiracy

resulted in huge loss to the government exchequer.

3.4. Fifth and final chargesheet has been filed by the CBI

on 29.07.2024 wherein appellant has been named as an accused.

4. Directorate of Enforcement or ED recorded ECIR No.

HIU­II/14/2022 on 22.08.2022 under the Prevention of Money

Laundering Act, 2005 (PMLA) on the basis of the offences under

which the CBI case was registered. Thus, the offences under the

CBI case became the predicate offence leading to investigation by

the ED under PMLA. ED filed the first prosecution complaint on

26.11.2022 in respect of which the Special Court took cognizance

on 20.12.2022. ED has since then filed seven supplementary

prosecution complaints. In the last supplementary prosecution

complaint filed on 17.05.2024, appellant has been named as an

accused.

4.1. According to ED, several notices under Section 50 of

PMLA were issued to the appellant for his examination and

recording of statement but he failed to appear and join the

investigation. However, according to the appellant, the notices

issued under Section 50 were illegal, bad in law and invalid.

 5

5. Be that as it may, appellant was arrested by the ED on

21.03.2024. Appellant challenged his arrest before the High

Court by filing a petition under Article 226 of the Constitution of

India read with Section 482 Cr.P.C. However, the same was

dismissed by the High Court on 09.04.2024.

6. It is stated that the competent authority accorded

permission under Section 17A of the PC Act on 23.04.2024

whereafter CBI proceeded to investigate the role of the appellant

in the CBI case. However, it is not mentioned as to when such

permission was sought for.

7. In so far arrest of the appellant in the PMLA case is

concerned, appellant carried his challenge from the High Court to

this Court. On 10.05.2024, this Court granted interim bail to the

appellant till 02.06.2024 in Criminal Appeal No. 2493 of 2024 in

view of the ongoing Lok Sabha elections. On completion of the

period of interim bail, appellant surrendered and was taken back

into custody.

8. On 20.06.2024, appellant was granted regular bail by

the learned Special Judge in the ED case. This bail order was

challenged by the ED before the High Court which stayed the bail
 6

order on 21.06.2024 on an oral mentioning. A detailed order

staying the bail of the appellant in the ED case was pronounced

by the High Court only on 25.06.2024.

9. CBI sought for custody of the appellant so as to

interrogate him. Application filed by the CBI in this regard under

Section 41A Cr.P.C. was allowed by the learned Special Judge on

24.06.2024.

10. It is stated that CBI interrogated the appellant in Tihar

Jail on 25.06.2024 for 3 hours but according to the CBI, he did

not furnish satisfactory reply to the questions put to him. His

reply was found to be evasive.

11. At around the same time the High Court stayed the

bail of the appellant in the PMLA case, on 25.06.2024 CBI sought

for permission of the learned Special Judge to formally arrest the

appellant in the CBI case. On production of the appellant before

the learned Special Judge on 26.06.2024, appellant was formally

arrested and remanded to CBI custody till 29.06.2024 by the

learned Special Judge. In the arrest memo dated 26.06.2024, CBI

mentioned in column 7 that it had explained the grounds of

 7

arrest to the appellant. The grounds of arrest were mentioned as

under:

He is not co­operating with the investigation and

concealing the true facts even after being
confronted with evidences gathered during the
investigation so far and also the facts which are
exclusively in his knowledge and relevant for the
purpose of the investigation to reach to the just
conclusion of the case. He is trying to purposely
derail the investigation. He may influence the
witnesses.

11.1. In the remand application, CBI mentioned in

paragraph 17 that appellant was examined/interrogated in Tihar

Jail on 25.06.2024. During his interrogation he remained evasive

and non­cooperative, failing to give satisfactory replies to the

questions put to him regarding his role in the conspiracy. CBI

mentioned as under:

That Arvind Kejriwal was

examined/interrogated in Tihar Jail on
25.06.2024. During his interrogation, he
remained evasive and non­cooperative, failing
to give satisfactory replies to the questions
raised to him regarding his role in the matter of
demand of upfront money of Rs. 100 Crores
 8

from co­accused persons of South Group, the

acceptance and delivery of the same to Aam
Aadmi Party through his close associate Vijay
Nair as well as utilization of the ill­gotten
money so received in the Assembly Elections of
Goa during the year 2021­22 to meet the
election related expenditures of Aam Aadmi
Party. He further gave evasive replies regarding
his role and the role of other co­accused in
respect of criminal conspiracy hatched. His
replies are contrary to the oral and
documentary evidence gathered by CBI during
the investigation. He is not disclosing the facts
truthfully, despite being confronted with the
incriminating evidence and also concealing the
vital facts, which are exclusively in his
knowledge. These facts are relevant for the
purpose of the investigation to reach to the just
conclusion of the case.

11.2. On 29.06.2024, learned Special Judge remanded the

appellant to judicial custody till 12.07.2024.

12. Criminal Appeal No. 2493 of 2024 was heard by this

Court in the meanwhile. On 12.07.2024, a detailed judgment was

passed. A bench of two Hon’ble Judges of this Court framed the

 9

following three questions of law for consideration by a larger

bench:

(a) Whether the “need and necessity to arrest” is a

separate ground to challenge the order of arrest passed
in terms of Section 19(1) of the PML Act?

(b) Whether the “need and necessity to arrest” refers to

the satisfaction of formal parameters to arrest and take
a person into custody, or it relates to other personal
grounds and reasons regarding necessity to arrest a
person in the facts and circumstances of the said
case?

(c) If questions (a) and (b) are answered in the affirmative,

what are the parameters and facts that are to be taken
into consideration by the court while examining the
question of “need and necessity to arrest”?

12.1. While making the reference as above, the bench

observed that right to life and liberty is sacrosanct. Appellant had

suffered incarceration of over 90 days. The above questions

referred to a larger bench would require in depth consideration.

Therefore, appellant was directed to be released on interim bail in

connection with ECIR No. HIU­II/14/2022 dated 22.08.2022 on

the same terms which were imposed earlier while granting

temporary bail on 10.05.2024.

 10

13. CBI filed its final chargesheet naming the appellant for

the first time as an accused on 29.07.2024.

14. Appellant filed Bail Application No. 2285/2024 before

the High Court under Section 439 of Cr.P.C. seeking regular bail

in the CBI case. On 05.07.2024, a learned Judge of the High

Court issued notice. Thereafter, arguments were heard on interim

bail on 17.07.2024. However, the case was directed to be listed

again on 29.07.2024 at 03:00 PM. On 29.07.2024, arguments

were heard and the judgment was reserved.

14.1. Seven days thereafter the judgment was delivered on

05.08.2024. Without deciding the bail application on merit, the

High Court disposed of the same giving liberty to the appellant to

approach the Court of Special Judge for regular bail saying that

such a course of action would be more beneficial to the appellant.

15. From the narration of facts as noted above, it is seen

that CBI had registered its case RC No. 0032022A0053 on

17.08.2022. A total of four chargesheets were filed by CBI in the

case naming 17 persons as accused. Appellant Arvind Kejriwal

was not named as an accused in those chargesheets.

 11

16. In the meanwhile, ED recorded ECIR No. HIU­

II/14/2022 under PMLA on 22.08.2022. ED filed seven

complaints under PMLA. In none of the above complaints,

appellant was named as an accused. However, appellant was

arrested by the ED in the PMLA case on 21.03.2024.

17. On 20.06.2024, appellant was granted regular bail by

the learned Special Judge in the ED case. On oral mentioning,

this bail order was stayed by the High Court on 21.06.2024.

18. It was thereafter that CBI sought for custody of the

appellant in the CBI case which was allowed by the learned

Special Judge on 24.06.2024.

19. Finally, this Court granted interim bail to the

appellant in the PMLA case on 12.07.2024.

20. CBI filed the fifth and final chargesheet in the CBI case

on 29.07.2024 wherein appellant has been named as an

accused.

21. Since appellant’s arrest by the ED, bail granted by the

learned Special Judge and stay of bail by the High Court in the

PMLA case are subject matter of parallel proceedings where

appellant has been granted interim bail by this Court, I would

 12

refrain from commenting thereon. Therefore, I will confine this

opinion only to two aspects: arrest of the appellant and the

judgment of the High Court.

Arrest of the appellant by the CBI: necessity and timing

22. In so far arrest of the appellant by the CBI is

concerned, it raises more questions than it seeks to answer. As

already noted above, CBI case was registered on 17.08.2022. Till

the arrest of the appellant by the ED on 21.03.2024, CBI did not

feel the necessity to arrest the appellant though it had

interrogated him about a year back on 16.04.2023. It appears

that only after the learned Special Judge granted regular bail to

the appellant in the ED case on 20.06.2024 (which was stayed by

the High Court on 21.06.2024 on oral mentioning) that CBI

became active and sought for custody of the appellant which was

granted by the learned Special Judge on 26.06.2024. Even on the

date of his arrest by the CBI on 26.06.2024, appellant was not

named as an accused by the CBI. Only in the last chargesheet

filed by the CBI on 29.07.2024, appellant has been named as an

accused.
 13

23. Thus, it is evident that CBI did not feel the need and

necessity to arrest the appellant from 17.08.2022 till 26.06.2024

i.e. for over 22 months. It was only after the learned Special

Judge granted regular bail to the appellant in the ED case that

the CBI activated its machinery and took the appellant into

custody. Such action on the part of the CBI raises a serious

question mark on the timing of the arrest; rather on the arrest

itself. For 22 months, CBI does not arrest the appellant but after

the learned Special Judge grants regular bail to the appellant in

the ED case, CBI seeks his custody. In the circumstances, a view

may be taken that such an arrest by the CBI was perhaps only to

frustrate the bail granted to the appellant in the ED case.

24. In so far the grounds of arrest are concerned, I am of

the view that those would not satisfy the test of necessity to

justify arrest of the appellant and now that the appellant is

seeking bail post incarceration, those cannot also be the grounds

to deny him bail. The respondent 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