'Don't Say Grant Of Bail Will Demoralise HC' : Supreme Court To CBI While Reserving Judgment On Arvind Kejriwal's Bail Plea

The Supreme Court on Thursday (September 5) reserved judgment on the petitions filed by Delhi Chief Minister Arvind Kejriwal challenging his arrest and seeking bail in the case registered by the CBI over the alleged Delhi Liquor Policy scam.A bench of Justices Surya Kant and Ujjal Bhuyan heard the matter the whole day.Kejriwal's petition before the Supreme Court challenged the Delhi High Court order of August 5, whereby his plea against CBI arrest was dismissed by a Single Judge bench with liberty to approach the trial Court for bail. He also filed another Special Leave Petition challenging the High Court's refusal to consider his bail plea.The AAP chief was formally arrested by CBI on June 26, 2024, while he was in custody of the Enforcement Directorate in the money laundering case arising out of the alleged liquor policy scam.Weeks later, on July 12, the Supreme Court granted Kejriwal interim bail in the money laundering case, while referring his petition challenging ED arrest to a larger bench. However, he continued to remain in custody (which commenced on March 21) due to his arrest by the CBI.At one stage in today's hearing before the Supreme Court, Additional Solicitor General SV Raju, appearing for the Central Bureau of Investigation, submitted that grant of bail to Kejriwal would amount to demoralizing the High Court. However, Justice Bhuyan expressed disagreement with this submission and said, "Don't say that".Kejriwal's argumentsSenior Advocate Dr Abhishek Manu Singhvi, for Kejriwal, submitted that he got release orders on three occasions in the money laundering case despite the stringent rigors of Section 45 of the Prevention of Money Laundering Act [Ref: the interim bail orders passed by the Supreme Court on May 10 and July 12, and the regular bail order passed by the trial court on June 20 (which the High Court stayed)].He questioned how Kejriwal could be denied regular bail in the CBI case when he has gotten bail under the PMLA, since the Prevention of Corruption Act does not have stringent conditions similar to the money laundering law. He termed the arrest by the CBI an "insurance arrest", which was made on June 26 on the cusp of Kejriwal's release in the ED case, and pointed that though the case was registered in August 2022, Kejriwal was not arrested for about two years.Singhvi also said that Kejriwal satisfies the "triple test" for grant of bail. "Triple test is based on the presumption of innocence. The ultimate object is to secure presence. You should not be a flight risk. A man who is a constitutional functionary cannot be a flight risk" he submitted. Further, it was urged that the evidence in the case is documentary in nature and has already been collected; hence there is no risk of tampering with evidence.Challenge to arrestSinghvi also raised arguments challenging the validity of the arrest by the CBI. He submitted that the CBI first moved an application before the trial Court seeking permission to interrogate Kejriwal, while he was in judicial custody in the ED case. However, this application was not served on him.The senior counsel further submitted that the arrest was not preceded by a notice under Section 41A of the Code of Criminal Procedure.Interjecting, ASG Raju said that a notice under Section 41A was not required as Kejriwal was already under custody. He remarked that the argument was a mere "technicality". Strongly objecting to the same, Singhvi replied, "matters of liberty cannot be a technicality...what I am referring to are procedural safeguards". Elaborating, he submitted that no reasons for arrest were given as mandated by Section 41 CrPC."Imminence of me committing further offence was minus, not zero. I was found fit for release by the Supreme Court two times!" Singhvi said further, arguing that none of the grounds for arrest specified under clauses (a) to (e) of Section 41(1)(b)(ii) were attracted in the case. Reference was made to the Arnesh Kumar judgment in this regard.The senior counsel also highlighted that the trial court itself, while upholding the legality of the arrest, had observed that the timing of the arrest was circumspect.CBI raises preliminary objection to bailASG Raju raised a preliminary objection to Singhvi raising arguments for bail, saying that Kejriwal should approach the trial court first. In this regard, Singhvi contended that the High Court has concurrent jurisdiction. "You can't send me back to trial court, which has considered the same thing," he said."Probably your point is that it would be an exercise in futility," observed Kant J. Agreeing, Singhvi added, "It's not a fair argument to raise by CBI at this stage. Except if delay is sought".The senior counsel further relied on the "snakes and ladders" phrase used by the Supreme Court in the Manish Sisodia case and quoted from the judgment as follows :"Now, relegating the appellant to again approach the trial court and thereafter the High Court and only thereafter this Court, in our view,...

'Don't Say Grant Of Bail Will Demoralise HC' : Supreme Court To CBI While Reserving Judgment On Arvind Kejriwal's Bail Plea

Debby Jain

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