Professional Update

(Criminal Case laws)

Criminal Appeal no.  3816/2024 (Supreme Court)

Arvind Kejriwal

vs

Central Bureau of Investigation.  

Facts.

The appellant has impugned the High court order for the grants of the bail u/s 439 of the Crpc, 1973. The Appellant has been arrested by the CBI in case of the application registered by the CBI, for the alleged irregularities in the Excise policy matter. The High Court has directed the appellant to first approach the trail court and thereafter, the high court will exercise the jurisdiction for the bail application.

Contention of the applicant.

1. The Appellant contended that the timing of the arrest has raised the eyebrows and its is quite evident that the CBI which first makes the application as on 17.08.2022, arrested the applicant 25.06.2024, which is after 22 months of making the application.
2. The CBI has arrested the applicant after the applicant is being granted bail in the PMLA matter by the Ld. Trial court dated 20.06.2024, although the grant of the bail was stayed by the high court as on 21.06.2024. The arrest was maliciously done after the accused is already granted bail in the PMLA Matter.
3. The CBI (Prosecution) has not given the notice to the accused in compliance with section 41A of the Crpc and thereby the procedural safeguards provided under the act, have been breached with.
4. The Appellant has been granted bail under the PLMA provision (3 times), wherein, section 45 is applicable which is much more stringent than the provision of section 439 under the Crpc.
5. The Trail court and the high court, have concurrent jurisdiction for the bail application and the appellant being the chief minister of the Delhi, has approached the High court. The high court has heard the case on merits at length and should have taken the decision at their level only.

Contention of the Directorate of Enforcement.

1. The High court and trail court have concurrent jurisdiction over the bail application but the apex court have time and again reiterated that accused should approach the trail court first and approaching the high court would frustrate the proceedings.
2. It would be demoralising for the high court, if the supreme court pass the order based on the merits since the high court have not heard the matter on the merits.
3. The appellant is a highly influential person and there is a high possibility that tampering with the documents could be done.
4. Bail u/s 439 is primarily is jurisdiction of trail court or high court, the supreme court should pass an order to direct the high court to hear the matter or could direct the applicant to approach the trail for true and fair bail jurisprudence.

Findings.

The Hon’ble Supreme court that written 2 separate opinions for the arrest illegality. For the bail jurisprudence, both the judges have concurred opinion.  

Justice Surya Kant, has opinion that the CBI has followed the procedures as prescribed under section 41A of the Crpc. The prosecution under the normal circumstances has to issue a notice to the accused. In the present case, the accused is already in the judicial custody, the prosecution has taken the permission  from the special court to interrogate the accused in the jail premise, is an sufficient compliance of the provision  of section 41A of Crpc, under the present circumstances. Therefore, Justice Surya Kant, upheld the legality of the arrest by CBI.

Justice Surya Kant, has opinion that the accused has satisfied the tripod test for the grant of the bail application under the Crpc. The appellant is not at a flight risk and most of the documents are already under the custody of the CBI, so the tampering of the evidence in out of equation.

The accused has already suffered the incarceration for more than 90 days and the trail is not likely to end soon, given the number of witness yet to be interrogated.

Justice Bhuyan Ujjwal, has opinion on the urgency of the CBI in arresting the appellant, given that the application of the CBI was registered long ago that is around 22 months ago. Moreover, the CBI has arrested the accused at the time, when the accused has been granted bail by the trail court under the PMLA.

The timing and necessity of arrest assumed the illegality in the arrest. The arrest should be made under good pretence.

With regards to the bail application, justice bhuyan concurred the opinion with justice surya kant.

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CA Manoj Garg

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