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TMI Blog2024 (9) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... hat custodial interrogation was necessary to confront him with evidence and uncover a purported larger conspiracy involving the accused persons in the implementation of the excise policy. The Trial Court, after considering these reasons, allowed the CBI's application for the Appellant's arrest and issued production warrants on the same day. Whether Section 41A(3) was violated, thereby rendering the arrest per se illegal? - HELD THAT:- 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 - 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, we have already noted that 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 arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - the Appellant satisfies the requisite triple conditions for the grant of bail. Whether the filing of a chargesheet is a change in circumstances warranting relegation to the trial court for grant of regular bail? - HELD THAT:- An undertrial 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 is granted without proper consideration, the prosecution too can seek corrective measures from the High Court. Since notice was issued and the parties were apparently heard on merits by the High Court, it is not deemed necessary at this stage to relegate the Appellant to the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant in the purported exercise of its power under Section 19 of the Prevention of Money Laundering Act, 2002. Subsequently, this Court granted the Appellant interim bail on 10.05.2024, until 01.06.2024. The Appellant surrendered thereafter before the jail authorities on 02.06.2024. We may hasten to add here that the question of law sought to be raised in the ED matter is presently pending consideration before a larger bench of this Court and is not relevant to the present controversy, and its particulars are included solely to ensure lucidity in the factual matrix. 3.4. The Special Judge vide order dated 20.06.2024 granted the Appellant regular bail while his bail in the ED matter was pending before this Court and reserved for judgement. However, the ED swiftly sought the cancellation of that bail order. The High Court on 21.06.2024 stayed the operation of that order, as a result of which, the Appellant continued to remain in jail. 3.5. CBI moved an application on 24.06.2024 before the Special Judge (PC Act) (hereinafter Trial Court ) under Section 41A of the CrPC, seeking to interrogate the Appellant, which was thereupon allowed. Having completed interrogation and examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est upon the order of a court; (ii) The arrest was made in accordance with Section 41(2) of the CrPC; and (iii) The plea of non-compliance with Section 41A of the CrPC was totally unsubstantiated. 3.10. As regard to the Appellant s prayer for regular bail, the High Court has denied the same for the following reasons: (i) The complexity of the facts and material on record necessitated a more comprehensive determination of the Appellant s role in the alleged conspiracy so as to assess his entitlement to bail; and (ii) The Bail Application had been filed prior to the chargesheet being submitted, and since the chargesheet has now been filed before the Trial Court, the Appellant was directed to first approach the Court of the Sessions Judge. 3.11. Meanwhile, this Court vide order dated 12.07.2024, passed in Criminal Appeal No. 2493/2024 directed the Appellant s release on interim bail in the ED matter. Arvind Kejriwal v. Directorate of Enforcement, Criminal Appeal No. 2493/2024. However, the Appellant continues to face incarceration on account of the proceedings initiated by the CBI. 3.12. The instant appeals are therefore restricted to the Appellant s challenges regarding the legality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncurrent jurisdiction under Section 439 of the CrPC. This measure, he underscored, was akin to taking the Appellant back to square one, leading to a travesty of justice and unwarranted delay in the adjudication of his bail application. 7. Lastly, Dr. Singhvi drew our attention to the fact that the trial was not likely to be concluded in the near future, as the FIR was registered on 17.08.2022, with one chargesheet and three supplementary chargesheets having been filed, 17 accused persons arraigned, as many as 224 witnesses cited and the physical and digital records running into lakhs of pages. Further, the fourth supplementary charge sheet was filed on 29.07.2024, cognizance of which was taken only recently, and which was yet to be supplied to the Appellant. These reasons, he contended, irrefutably validated his apprehension of reasonable delay in the conclusion of trial. 8. Per contra, Mr. S.V. Raju, Learned Additional Solicitor General of India argued that the arrest of the Appellant had been conducted in due compliance with the statutory procedure as contemplated in Section 41(1) and 41A of the CrPC. He contended that these provisions do not, in any manner, mandate a blanket ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be granted any special treatment merely because of the position of power he holds or his political stature. Mr. Raju canvassed that the Appellant deserves to be treated like any other undertrial and, hence, he must firstly approach the Trial Court, emphasizing that the High Court's jurisdiction is discretionary and should be exercised only in rare and exceptional circumstances. 12. According to the Learned ASG, the High Court was correct in refusing to exercise its jurisdiction because the Appellant had failed to make out an exceptional case warranting such special scrutiny. Furthermore, Mr. Raju highlighted a significant anomaly: the Appellant s failure to annex the chargesheet while applying for bail. He argued that a crucial aspect of seeking bail is to demonstrate, based on the material on record, that no prima facie case exists against the accused. Due to these oversights, Mr. Raju asserted that the Appellant should first seek relief from the Trial Court. 13. Lastly, Mr. Raju submitted that since the chargesheet and some supplementary chargesheets have been filed after the Appellant had approached the High Court for his enlargement on bail, it is a significant change in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a cognizable offence. Clause (2) of Section 41A thereafter, demands that an individual to whom such a notice has been issued, complies with the same. Section 41A (3) bears out that an individual who complies and continues to comply with such notice is not to be arrested in respect of the offence mentioned, unless the police officer, for reasons to be recorded, deems it necessary to arrest them. Finally, Section 41A (4) stipulates that if an individual fails to comply with the notice or refuses to identify themself, the police may arrest such an individual for the offence recorded in the notice, subject to any orders passed by a competent court. 18. Given the lucid nature of the language of the provision, it is crucial to examine the circumstances surrounding the Appellant s arrest in order to gauge whether there was due compliance with the procedural safeguards enshrined within Section 41A. 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 under Section 41A of the CrPC, inter alia seeking to interrogate and examine him. Such examination was allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 22. Contrarily, if the Appellant s contention is taken to its logical conclusion, it could lead to detrimental consequences. For instance, serving a notice upon an undertrial in jail through the Jail Superintendent, without informing the court that placed them in judicial custody, would effectively enable the police to arrest such individuals in a new case without the court s knowledge. This could result in a misuse of police authority and a violation of the Constitutional and procedural rights afforded to undertrials. Alternatively, when the court s permission is sought, it ensures the application of judicial scrutiny to assess whether custodial interrogation is necessary and, if so, for what duration. 23. In the case in hand, the Trial Court s approval of the CBI s application to interrogate the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice officer is satisfied that the individual should be arrested. In this context, we have already noted that 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. It is important to clarify that our current analysis is limited to verifying whether the CBI followed the correct procedure, including the recording of sufficient reasons. This issue would not detain us further, as the reasons as to why the Appellant s arrest was necessitated are discernible from the CBI s application dated 25.06.2024. 28. Third, Section 41A(1), when read with Section 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. Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t making the arrest. 32. 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 subsections (a) to (e). The rigors of Section 41(1)(b)(ii) have been extensively examined by this Court in Arnesh Kumar (supra), where it was observed that: 7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions ensconced in Section 41(1)(b)(ii) of the CrPC would cease to apply in the present context, given the order granted by the Trial Court prior. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 42. Therefore, in the light of these extenuating c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arrest to the appellant. The grounds of arrest were mentioned as under: He is not co - operating 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest ? 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. 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 Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant. 27. Power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it should arrest such a person. In Joginder Kumar Vs. State of U.P. ( 1994 ) 4 SCC 260 , a three - Judge bench of this Court examined the interplay of investigation and arrest. Referring to the third report of the National Police Commission, this Court declared that no arrest can be made just because it is lawful for police officers to do so. The existence of the power of arrest is one thing but justification for the exercise of it is quite another. It was held as under: 20. .No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and selfesteem of a person. No arrest ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 30. Again in the case of Mohd. Zubair Vs. State (NCT of Delhi) (2022) SCC Online SC 897 , a threeJudge Bench of this Court once again emphasized that the existence of the power of arrest must be distinguished from the exercise of the power of arrest. The exercise of the power of arrest must be pursued sparingly. This Court reiterated the role of the courts in protecting personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an investigating agency must be above board. Not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot. Impugned order 34. Let me now deal with the impugned judgment and order of the High Court whereby the bail application of the appellant was disposed of. Appellant had filed Bail Application No. 2285 of 2024 before the High Court under Section 439 Cr.P.C. in the CBI case where he was taken into custody on 26.06.2024. On 05.07.2024, a learned Judge of the High Court issued notice, fixing 17.07.2024 for arguments. On 17.07.2024, arguments were heard on interim bail; thereafter, the case was directed to be listed on 29.07.2024 at 03:00 PM. On 29.07.2024, arguments were heard and the judgment was reserved. Finally, the judgment was pronounced on 05.08.2024, the relevant portion of which reads as under : 5. Though there is no quarrel about the proposition that the District Courts and this Court have concurrent jurisdiction, as has been held in the Judgments relied on behalf of the appellant, but at the same time it has been held ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the fact that much time had lapsed since passing of the order of the High Court and there were subsequent medical reports of the appellant, this Court did not relegate the appellant back to the High Court but considered the bail application of the appellant on merit herein itself. This Court held thus : 14. The jurisdiction of the trial court as well as the High Court under Section 439 of the Code of Criminal Procedure, 1973 is concurrent and merely because the High Court was approached by the appellant without approaching the trial court would not mean that the High Court could not have considered the bail application of the appellant. As such, in our view, the High Court ought to have considered the bail application of the appellant on merits and decided the same. However, since the High Court has not considered the matter on merits and much water has flown since the passing of the order of the High Court, as now there are two medical reports of the appellant, one by the government hospital on the direction of the High Court and the other by Army Hospital on the directions of this Court, we deem it fit and proper to consider the bail application of the appellant on merits. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for India made a statement before the Court that investigation would be concluded and final complaint as well as chargesheet would be filed in both the ED and CBI cases on or before 03.07.2024. On the basis of the above statement of the learned Solicitor General, this Court disposed of the two criminal appeals of Shri Manish Sisodia with liberty to him to revive his prayer afresh after filing of final complaint and chargesheet. When Shri Sisodia approached this Court for bail after the complaint and the chargesheet were filed, Mr. Raju learned Additional Solicitor General of India appearing for the ED as well as the CBI contended that Shri Sisodia should again approach the trial court for regular bail as in the interregnum, the complaint and the chargesheet were filed. Such submission of Mr. Raju was rejected by this Court. Adverting to the earlier order of this Court dated 04.05.2024, this Court in Manish Sisodia observed as under : 33. ..It will be a travesty of justice to construe that the carefully couched order preserving the right of the appellant to revive his prayer for grant of special leave against the High Court order, to mean that he should be relegated all the way down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the appellant in the CBI case that followed such arrest has become untenable. 42. In the circumstances, the judgment and order of the High Court dated 05.08.2024 in W.P.(Crl.) No. 1939 of 2024 is clarified to the above context while the judgment and order of the High Court dated 05.08.2024 in Bail Application No. 2285 of 2024 is set aside. 43. Consequently, it is directed that the appellant shall be released on bail forthwith in the CBI case i.e. RC No. 0032022A0053 dated 17.08.2022. In so far bail conditions are concerned, this Court in the ED case i.e. in Criminal Appeal No. 2493 of 2024 has imposed several terms and conditions including clauses (b) and (c) vide the orders dated 10.05.2024 and 12.07.2024 which have been incorporated in clause (d) of paragraph 47(ii) of the judgment delivered by Justice Surya Kant. Though I have serious reservations on clauses (b) and (c) which debars the appellant from entering the office of Chief Minister and the Delhi Secretariat as well as from signing files, having regard to judicial discipline, I would refrain from further expressing my views thereon at this stage since those conditions have been imposed in the separate ED case by a t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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