Holding

The Court held that the CBI’s arrest of the appellant complied with Section 41A of the CrPC and, while lawful, the continued incarceration was unjustified, entitling the appellant to regular bail.

Summary

The appellant, a three‑time Chief Minister of Delhi, was arrested by the CBI in June 2024 in connection with an FIR registered in August 2022 under sections 120B, 477A IPC and section 7 PC Act. He challenged the legality of the arrest under Sections 41A and 41(1)(b)(ii) of the CrPC and also sought regular bail. The High Court upheld the arrest and denied bail, directing the appellant to approach the trial court. The Supreme Court examined whether the CBI complied with the procedural requirements of Section 41A, whether Section 41(1)(b)(ii) applied, and whether the appellant was entitled to bail despite the pending chargesheet. The Court held that the CBI’s arrest complied with Section 41A and that the procedural requirements were met, but the prolonged detention was untenable and the appellant satisfied the criteria for regular bail. Accordingly, the Court dismissed the appeal questioning the arrest and allowed the bail appeal, ordering the appellant’s release on bail with conditions.

Issues considered

Whether the CBI’s arrest of the appellant complied with the procedural requirements of Section 41A and Section 41(1)(b)(ii) of the CrPC
Whether the appellant is entitled to regular bail despite the pending chargesheet and the complexity of the case
Whether the filing of a chargesheet constitutes a change in circumstances that mandates relegation of the bail application to the trial court

Legislation cited

Code of Criminal Procedure, 1973s. 41(1)(b)(ii), s. 41(2), s. 41A, s. 439
Constitution of Indias. Article 20(3), s. Article 21
Indian Penal Code, 1860s. 477A
Prevention of Corruption Act, 1988s. 17A, s. 7
Prevention of Money Laundering Act, 2002s. 50

Subjects

Section 41A of CrPCSection 41(1)(b)(ii) of CrPCArticle 20(3) of Constitution of IndiaSection 477A of IPCSection 7 of Prevention of Corruption ActBailRegular bailArrestGrounds of arrestProcedural infirmityArticle 21 of Constitution of IndiaCharge-sheetGravity of offenceBackground and vulnerability of the witnessesSocietal impact of granting or denying bailPersonal libertyNecessity and timing of arrest

Judgment

[2024] 9 S.C.R. 683 : 2024 INSC 687

Arvind Kejriwal
v.
Central Bureau of Investigation
(Criminal Appeal No. 3816 of 2024)
13 September 2024
[Surya Kant* and Ujjal Bhuyan,* JJ.]

Issue for Consideration
The instant appeals are directed against the judgments and
orders dated 05.08.2024 passed by the High Court, dismissing
the appellant’s challenge to his arrest being illegal as well as his
application for the grant of regular bail.

Headnotes†
Code of Criminal Procedure, 1973 – ss.41A – Penal Code,
1860 – s.477A – Prevention of Corruption Act, 1988 – s.7 – The
High Court upheld the arrest of the appellant by the CBI and
congruously denied him regular bail – Propriety:
Held: [Per Surya Kant, J.]: CBI complied with Section 41A
CrPC, in its true letter and spirit – The appellant’s arrest does
not suffer with any procedural infirmity – 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
Constitution – The appellant satisfies the requisite conditions for
the grant of bail – Thus, the appellant directed to be released on
bail in connection with FIR registered by the CBI. [Paras 29, 36,
40, 47(ii)(a)] – [Per Ujjal Bhuyan, J. (concurring)]: 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 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 Special Judge grants regular bail to the appellant in the
ED case, CBI seeks his custody – In the circumstances, a view

* Author
684 [2024] 9 S.C.R.

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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 – The
belated arrest of the appellant by the CBI is unjustified and the
continued incarceration of the appellant in the CBI case that followed
such arrest has become untenable – Thus, appellant directed to
be released on bail forthwith. [Paras 23, 41, 43]

Code of Criminal Procedure, 1973 – s.41A – Penal Code,
1860 – s.477A – Prevention of Corruption Act, 1988 – s.7 –
The primary basis for the appellant’s challenge rests on the
contention that the procedure for arrest, as outlined u/ss. 41A
of the CrPC, was not complied with:
Held: S.41A of the CrPC pertains to the issuance of a notice by
a police officer to an individual when their arrest is not warranted
u/s.41(1) of the CrPC, but their presence is still required before the
investigating authority – 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
u/s.41A of the CrPC, inter alia seeking to interrogate and examine
him – Such examination was allegedly necessitated by new facts
and evidence uncovered by the CBI upon further investigation – The
provision, however, does not outline any express procedure to be
undertaken where the individual in question is already incarcerated –
It is to be remembered that the Court is, in a way, the guardian of
an undertrial, while he is in judicial custody – That being so, there
could possibly be no other way to secure the appellant’s physical
presence for the purpose of further investigation, except to seek prior
permission of the trial Court for his interrogation – In the case in hand,
the trial Court’s approval of the CBI’s application to interrogate the
Appellant should be viewed as satisfying the essential requirements
of Section 41A, as the issuance of a formal notice through the jail
authorities would have had an adverse impact on the rights of the
appellant – Thus, in considered view of this Court the CBI complied
with the procedure encompassed within the framework of Section 41A
of the CrPC. [Paras 17, 18, 20] [Per Surya Kant, J.]

Code of Criminal Procedure, 1973 – s.41A(3) – Penal Code,
1860 – s.477A – Prevention of Corruption Act, 1988 – s.7 –
Whether there was violation of Section 41A(3) of the CrPC:
Held: First, it is trite law that there is no insurmountable hurdle in
the conversion of judicial custody into police custody by an order of
[2024] 9 S.C.R. 685

Arvind Kejriwal v. Central Bureau of Investigation

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 – The
appellant’s arrest by the CBI was thus entirely permissible, in light
of the trial Court’s order dated 25.06.2024 wherein the trial Court,
after considering the reasons, allowed the CBI’s application for the
appellant’s arrest – 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, 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 – Third, s.41A(1), when r/w.s.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 – S.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 to the general rule u/s. 41A, which mandates that an
individual whose appearance is required should not be arrested
u/s.41(1) of the CrPC. [Paras 25, 26, 27, 28] [Per Surya Kant, J.]

Code of Criminal Procedure, 1973 – s.41(1)(b)(ii) – Penal Code,
1860 – s.477A – Prevention of Corruption Act, 1988 – s.7 –
Whether s.41(1)(b)(ii) of the CrPC is applicable:
Held: 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 sub-sections
(a) to (e) – The said provision is inapplicable to the vicissitudes
of the present factual matrix – Here is a case where the court
upon application of judicial mind accorded its approval to the
appellant’s arrest for which necessary warrant was issued – There
was thus no occasion for the arresting police officer to form an
opinion regarding the existence of valid reasons of arrest – The
competent court having undertaken such a task, the police officer
cannot be expected to sit over the order of the court. [Paras 32, 33]
[Per Surya Kant, J.]
686 [2024] 9 S.C.R.

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Code of Criminal Procedure, 1973 – Bail – Constitution of
India – Art. 21 – Penal Code, 1860 – s.477A – Prevention of
Corruption Act, 1988 – s.7 – Whether the appellant is entitled
to the relief of regular bail:
Held: 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 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, has been
submitted – These factors suggest that the completion of the
trial is unlikely to occur in the immediate future – 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 –
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 –
Therefore, in the light of these extenuating circumstances and
considering the foregoing analysis, it could be resolved that the
Appellant satisfies the requisite conditions for the grant of bail.
[Paras 39, 40, 41, 42] [Per Surya Kant, J.]

Code of Criminal Procedure, 1973 – Regular bail – Filing of
charge-sheet – Whether the filing of a chargesheet is a change
in circumstances warranting relegation to the trial court for
grant of regular bail:
Held: 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
[2024] 9 S.C.R. 687

Arvind Kejriwal v. Central Bureau of Investigation

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 – 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 – 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 – 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, it not necessary at this stage to relegate the appellant
to the trial Court even though filing of a chargesheet is a change
in the circumstances – Thus, appellant directed to be released on
bail. [Paras 43, 44, 45, 46] [Per Surya Kant, J.]

Code of Criminal Procedure, 1973 – Constitution of India –
Art. 20(3) – Arrest – Grounds of arrest – Detention citing
evasive reply:
Held: The respondent-CBI 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 cannot be
the proposition that only when an accused answers the questions
put to him by the investigation agency in the manner in which the
investigating agency would like the accused to answer, would mean
that the accused is cooperating with the investigation – Further,
the respondent cannot justify arrest and continued detention
citing evasive reply – One should not forget the cardinal principle
under Article 20(3) of the Constitution that no person accused of
an offence shall be compelled to be a witness against himself.
[Paras 24, 25] [Per Ujjal Bhuyan, J.]

Constitution of India – Art. 20(3) – No person accused of any
offence shall be compelled to be a witness against himself:
Held: Article 20(3) of the Constitution of India states that no person
accused of an offence shall be compelled to be a witness against
688 [2024] 9 S.C.R.

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himself – This Court has held that such a protection is available
to a person accused of an offence not merely with respect to
the evidence that may be given in the court in the course of the
trial, but is also available to the accused at a previous stage if an
accusation has been made against him which might in the normal
course result in his prosecution – Thus, the protection is available
to a person against whom a formal accusation has been made,
though the actual trial may not have commenced and if such an
accusation relates to the commission of an offence which in the
normal course may result in prosecution – An accused has the
right to remain silent; he cannot be compelled to make inculpatory
statements against himself – No adverse inference can be drawn
from the silence of the accused – If this is the position, then the
very grounds given for arrest of the appellant would be wholly
untenable – On such grounds, it would be a travesty of justice
to keep the appellant in further detention in the CBI case, more
so, when he has already been granted bail on the same set of
allegations under the more stringent provisions of PMLA. [Para 25]
[Per Ujjal Bhuyan, J.]

Bail – Bail jurisprudence:
Held: Bail jurisprudence is a facet of a civilised criminal justice
system – An accused is innocent until proven guilty by a competent
court following the due process – Hence, there is presumption of
innocence – Therefore, this Court has been reiterating again and again
the salutary principle that bail is the rule and jail is the exception – As
such, the courts at all levels must ensure that the process leading
to and including the trial does not end up becoming the punishment
itself – This Court has emphasized and re-emphasized time and
again that personal liberty is sacrosanct – It is of utmost importance
that trial courts and the High Courts remain adequately alert to the
need to protect personal liberty which is a cherished right under
Constitution. [Paras 39, 40] [Per Ujjal Bhuyan, J.]

Case Law Cited

In the judgement of Surya Kant, J:
Arnesh Kumar v. State of Bihar [2014] 8 SCR 128 : (2014) 8 SCC
273 – relied on.
Central Bureau of Investigation v. Anupam J. Kulkarni [1992] 3
SCR 158 : (1992) 3 SCC 141; Gudikanti Narasimhulu v. Public
[2024] 9 S.C.R. 689

Arvind Kejriwal v. Central Bureau of Investigation

Prosecutor [1978] 2 SCR 371 : (1978) 1 SCC 240; Union of India v.
K.A. Najeeb [2021] 1 SCR 443 : AIR (2021) SC 712 – referred to.

In the judgement of Ujjal Bhuyan, J:
Kanumuri Raghurama Krishnam Raju v. State of A.P. (2021) 13
SCC 822; Gudikanti Narasimhulu v. Public Prosecutor [1978] 2
SCR 371 : (1978) 1 SCC 240 – relied on.
Manish Sisodia v. CBI (Criminal Appeal No. 3296 of 2024,
decided on 09.08.2024 by the Supreme Court); Joginder Kumar
v. State of U.P. [1994] 3 SCR 661 : (1994) 4 SCC 260; Sidhartha
Vashisht alias Manu Sharma v. State (NCT of Delhi) [2010] 4 SCR
103 : (2010) 6 SCC 1; Arnesh Kumar v. State of Bihar [2014] 8
SCR 128 : (2014) 8 SCC 273; Mohd. Zubair v. State (NCT of
Delhi) [2022] 18 SCR 494 : (2022) SCC Online SC 897; Arnab
Ranjan Goswami v. Union of India [2020] 8 SCR 222 : (2020) 14
SCC 12 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Constitution of India; Penal
Code, 1860; Prevention of Corruption Act, 1988.

List of Keywords
Section 41A of Code of Criminal Procedure, 1973; Section 41(1)(b)
(ii) of Code of Criminal Procedure, 1973; Article 20(3) of Constitution
of India; Section 477A of Penal Code, 1860; Section 7 of Prevention
of Corruption Act, 1988; Bail; Regular bail; Arrest; Grounds of
arrest; Procedural infirmity; Article 21 of Constitution of India;
Charge-sheet; Gravity of offence; Background and vulnerability of
the witnesses; Societal impact of granting or denying bail; Personal
Liberty; Necessity and timing of arrest.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3816 of 2024
From the Judgment and Order dated 05.08.2024 of the High Court
of Delhi at New Delhi in BA No. 2285 of 2024
With
Criminal Appeal No. 3817 of 2024
690 [2024] 9 S.C.R.

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Appearances for Parties
Dr. Abhishek Manu Singhvi, N. Hariharan, Vikram Chaudhary,
Narendra Hooda, Sr. Advs., Vivek Jain, Mohd. Irshad, Rajat
Bhardwaj, Karan Sharma, Suchitra Kumbhat, Amit Bhandari, Sadiq
Noor, Rajat Jain, Mohit Siwach, Kaustubh Khanna, Shailesh,
Rishikesh, Indresh Upadhyay, Ms. Arveen, Ms. Muskaan Khurrana,
Advs. for the Appellant.
Suryaprakash V. Raju, A.S.G., Mukesh Kumar Maroria, Zoheb
Hussain, Annam Venkatesh, Vivek Gurnani, Samrat Goswami,
Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Surya Kant, J.

Leave granted.
2. These appeals are directed against the judgements and orders dated
05.08.2024 passed by the High Court of Delhi (hereinafter, ‘High
Court’), dismissing the Appellant’s challenge to his arrest being illegal
as well as his application for the grant of regular bail. Consequently,
the High Court upheld the legality of the Appellant’s arrest and has
summarily declined to exercise its concurrent jurisdiction under
Section 439 of the Code of Criminal Procedure, 1973 (hereinafter,
‘CrPC’), thereby denying his prayer for regular bail.

Facts:
3. At the very outset, it is essential to advert to the brief factual
background to provide context to the manner in which the present
proceedings have arisen.
3.1. The Appellant is a public representative and has been elected
thrice the Chief Minister of the Government of National Capital
Territory of Delhi (hereinafter ‘GNCTD’). He also happens
to be the National Convenor of Aam Aadmi Party, a political
party in India.
3.2. Central Bureau of Investigation (hereinafter ‘CBI’) – the
Respondent registered an FIR No. RC0032022A0053
[2024] 9 S.C.R. 691

Arvind Kejriwal v. Central Bureau of Investigation

(hereinafter ‘FIR’), on 17.08.2022 under Sections 120B read
with Section 477A of the Indian Penal Code, 1806 (hereinafter
‘IPC’) and Section 7 of the Prevention of Corruption Act, 1988
(hereinafter ‘PC Act’) against various persons. The FIR alleged
irregularities, falsification, undue advantage, and a conspiracy
among the persons holding positions of responsibility within
the GNCTD, in framing and implementing the Excise Policy for
the year 2021-2022 (hereinafter ‘Excise Policy’). However,
the Appellant’s name did not figure in the FIR.
3.3. On 21.03.2024, the Directorate of Enforcement (hereinafter
‘ED’), arrested the Appellant 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, the CBI filed an application on 25.06.2024
seeking permission to arrest the Appellant and for the issuance
of production warrants. Thereafter, the Trial Court allowed
the CBI’s application noting that the accused was already in
judicial custody in the ED matter. In the meantime, the High
Court conclusively stayed the order granting regular bail to the
Appellant in the ED matter on 25.06.2024 itself.
3.6. Shortly thereafter, on 26.06.2024, the Appellant was produced
before the Trial Court, whereupon he was arrested in the instant
692 [2024] 9 S.C.R.

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CBI case and a copy of the arrest memo was handed over to the
Appellant’s counsel. On the same day, on an application moved
by the CBI, the Trial Court remanded the Appellant to police
custody for five days. Subsequently, on 29.06.2024, the Trial
Court remanded the Appellant to judicial custody till 12.07.2024.
It may be noted that the investigation at that time was ongoing.
3.7. Both the above stated orders dated 26.06.2024 and 29.06.2024
of the Trial Court, came to be challenged by the Appellant
before the High Court vide a Writ Petition, inter alia seeking
a declaration that his arrest was illegal. On 02.07.2024, when
the Petition was heard, the High Court issued notice to the
CBI and scheduled the matter to be heard on 17.07.2024. In
the interregnum, the Appellant also approached the High Court
under Section 439 CrPC, seeking regular bail in connection with
the subject FIR. On 05.07.2024, when the Bail Application came
up for hearing, the High Court issued notice and renotified it to
be heard on 17.07.2024, along with the Writ Petition challenging
the very arrest of the Appellant.
3.8. The High Court extensively heard the matter on 17.07.2024 and
reserved judgement in the Writ Petition. The Bail Application
was renotified for further hearing on 29.07.2024, which was
also reserved. Finally, on 05.08.2024, the High Court vide
the impugned judgement and order upheld the arrest of the
Appellant by the CBI and congruously denied him regular bail,
with liberty to approach the Trial Court for such relief.
3.9. As regard to the legality of the Appellant’s arrest, the High
Court upheld the same on the following broad points: (i) The
five circumstances delineated under Section 41(1)(b) of the
CrPC apply only to arrests made without a warrant and does
not pertain to arrests made under the aegis of Section 41(2)
of the CrPC, which is an arrest 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
[2024] 9 S.C.R. 693

Arvind Kejriwal v. Central Bureau of Investigation

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.1 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 and propriety of his arrest by
the CBI and his prayer for release on regular bail in connection
with the proceedings initiated by the CBI via the subject FIR.

Contentions of the Parties
4. Dr. Abhishek Manu Singhvi, Learned Senior Counsel representing
the Appellant, argued first and foremost that the Appellant had
been arrested illegally, in violation of the procedure enumerated
in Sections 41(1) and 41A of the CrPC. In this vein, he assailed
that the Appellant was arrested without giving any reasons, thus
violating the: (i) precondition of just and valid reasons for the change
of a case from ‘non-arrest’ to ‘arrest’ under Section 41A (3) of the
CrPC; and (ii) the mandatory details that have to be fulfilled under
Section 41(1)(b)(ii), to satisfy that the arrest fell within the purview of
any of the clauses (a) to (e). Considering that none of these stipulations
were complied with, the Appellant’s arrest is fraught with illegality.
5. Dr. Singhvi drew our attention to the High Court having erred in
misapplying the provision of Section 41(2) of the CrPC to justify the
non-compliances of Section 41(1)(b)(ii) of the CrPC and consequential
arrest of the Appellant. He highlighted that Section 41(2) is attracted
only to non-cognizable offences, whereas the arrest of the Appellant
was made in a case of cognizable offence. This was fortified by
contending that none of the applications moved by the CBI seeking
remand, sought to invoke Section 41(2). These violations, Learned
Senior Counsel contended, were squarely against the dictum of this

1 Arvind Kejriwal v. Directorate of Enforcement, Criminal Appeal No. 2493/2024
694 [2024] 9 S.C.R.

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Court in Arnesh Kumar v. State of Bihar 2 and a plethora of other
subsequent decisions.
6. Dr. Singhvi further argued that the Appellant deserves to be granted
bail, as his continued incarceration is not necessitated, given that the
entire material is in the safe custody of the CBI. He also emphasized
that the Appellant has been granted both interim and regular bail in
the ED matter by this Court, where the conditions are stricter, thus
demonstrating that he would invariably meet the threshold explicated
by the ‘triple test’ in the CBI matter as well: he has no criminal
antecedents, is not a flight risk, and poses no threat of tampering with
witnesses or evidence. He also assailed that the High Court ought not
to have relegated the Appellant to the Trial Court, considering that it
exercises concurrent 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 ban on the
arrest of an individual, against whom there is a reasonable suspicion
of commission of a cognizable offence, punishable with imprisonment
up to seven years. The law only stipulates that the investigating
authority ought to be satisfied with the necessity of such an arrest,
which has been duly met in the present case. He strenuously

2 Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
[2024] 9 S.C.R. 695

Arvind Kejriwal v. Central Bureau of Investigation

urged that the pre-requisites set out in Section 41(1)(b)(ii) had been
fulfilled as the CBI deemed it imperative to conduct the custodial
interrogation of the Appellant to unearth a larger conspiracy hatched
amongst the accused persons and to establish the money trail of
ill-gotten proceeds.
9. Mr. Raju contended that the requirement of notice under Section 41A
of the CrPC is intended solely to compel the accused to appear
before the investigating authority. Since the accused in the instant
case was already in judicial custody, such notice would have been
an empty formality. He argued that the CBI had obtained permission
from the Trial Court, under whose custody the Appellant was. He
supported his contention by referencing Section 41A (4) of the
CrPC, which outlines the procedure for situations where an accused
fails to comply with a Section 41A notice. Mr. Raju maintained that,
given the Appellant’s incarceration, the circumstance envisaged
under Section 41A (4) becomes inapplicable, and therefore, the
requirement of notice thereunder was not necessary. In regard to
the misgivings on the erroneous application of Section 41(2) of the
CrPC, he explained that the High Court had inadvertently mistyped
the provision and that it ought to be read as Section 41(1)(b)(ii) of
the CrPC instead.
10. While strongly opposing the Appellant’s prayer for bail, Mr. Raju
contended that there was a likelihood of witness intimidation, should
the Appellant be released on bail, resulting in the trial proceedings
being severely derailed. Mr. Raju also alluded to certain instances
having occurred in the context of M/s. Mahadev Liquors of Punjab,
thus pointing to the influence exerted by the Appellant, whose political
outfit is ruling more than one State.
11. Mr. Raju vehemently pressed into aid his preliminary objection to
relegate the Appellant to the Trial Court, who he stressed ought not
to have approached the High Court directly, notwithstanding the
concurrent jurisdiction under Section 439 of the CrPC. He urged that
the Appellant should not 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.
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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 circumstances and therefore, in light of this too
the Appellant should be relegated to the Trial Court. Such relegation
would aid in his bail claim being considered with reference to the
nature of evidence gathered by the CBI and the complicity of the
Appellant, if any, as may be discernible from such evidence.

Issues
14. Having considered the material on record and the extensive
submissions made by the parties, the following questions fall for our
deliberation:
i. Whether there was any illegality in the Appellant’s arrest? If so,
whether the Appellant is entitled to be released forthwith, even
in the absence of a formal bail application?
ii. Whether the Appellant, regardless of his lawful arrest, is entitled
to be enlarged on regular bail?
iii. Whether the filing of a chargesheet is a change in circumstances
of such a decisive nature that an accused would be liable to
be relegated to the Trial Court to make out a case for grant of
regular bail?

Analysis
15. We have bestowed our consideration to the rival contentions, along
with the sequence of events that culminated in the Appellant’s
arrest. Given the nature of the issues pending determination, it
is essential to address them each independently and arrive at a
definitive conclusion.
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A. Whether the procedure undertaken in arresting the
Appellant was illegal?
16. The primary basis for the Appellant’s challenge rests on the contention
that the procedure for arrest, as outlined under Sections 41(1)(b)
(ii) and 41A of the CrPC, was not complied with. For the purpose
of analysing the legality of the Appellant’s arrest, there are two key
aspects which we propose to examine separately, namely: (i) whether
the issuance of a notice under Section 41A of the CrPC was duly
complied with, in the context of the present factual scenario; and
(ii) whether Section 41(1)(b)(ii) of the CrPC is applicable in the facts
and circumstances of this case.

i. Compliance with Section 41A of the CrPC
17. Section 41A of the CrPC pertains to the issuance of a notice by a
police officer to an individual when their arrest is not warranted under
Section 41(1) of the CrPC, but their presence is still required before
the investigating authority. Issuance of a notice under Section 41A(1)
therefore would be imminent, when there is a complaint made, credible
information received or there is a reasonable suspicion of the individual
having committed 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
necessitated by new facts and evidence uncovered by the CBI
upon further investigation. The CBI, vide this application, outlined
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the reasons prompting such examination, including the purported
irregularities in the framing and implementation of the Excise Policy,
and its manipulation to facilitate the monopolization and cartelization
of wholesale and retail liquor trade in India.
19. The application also alleged that, upon further investigation, statements
from several witnesses, incriminating documents and messages
exchanged between the accused persons named in the chargesheets,
revealed that the Appellant was a critical component in the criminal
conspiracy related to the Excise Policy. It was claimed that the
Appellant, in connivance with the other accused persons, engaged in
tweaking the policy to enhance the profit margin of wholesalers from
5% to 12%, resulting in significant windfall gains. These gains were
ultimately alleged to have been utilised by the Appellant’s political party
towards election related expenses, during the 2021-22 Goa Assembly
elections. The application highlighted that the emergence of these
new facts, pointing toward the Appellant’s complicity, required further
examination, as there was reasonable suspicion of his involvement
in the commission of the offence. Upon considering these reasons,
the Trial Court, by its order dated 24.06.2024, allowed the CBI’s
application seeking to interrogate the Appellant.
20. At this juncture, it is pertinent to first address the Appellant’s allegations
regarding the CBI’s non-compliance with Section 41A of the CrPC,
particularly concerning the issuance of notice or lack thereof. In this
regard, it is crucial to draw reference to the language and intent of the
provision, which aims to ensure an individual’s appearance through
the issuance of a notice. The provision, however, does not outline any
express procedure to be undertaken where the individual in question
is already incarcerated. It is to be remembered that the Court is, in
a way, the guardian of an undertrial, while he is in judicial custody.
That being so, there could possibly be no other way to secure the
Appellant’s physical presence for the purpose of further investigation,
except to seek prior permission of the Trial Court for his interrogation.
21. In fact, given what was contended by the Appellant, it must be explicated
that Section 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.
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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 Appellant should be viewed as satisfying the
essential requirements of Section 41A, as the issuance of a formal
notice through the jail authorities would have had an adverse impact
on the rights of the Appellant. Thus, it is our considered view that the
CBI complied with the procedure encompassed within the framework
of Section 41A of the CrPC.
24. That being said, let us now address the specific contention pertaining
to the alleged violation of Section 41A(3) of the CrPC. The provision
elucidates, at the risk of reiteration, that an individual who complies
with the notice issued under Section 41A should not be arrested,
unless the police officer for reasons recorded, opines that arrest
is necessary. The vital takeaway from this provision is that while
compliance with the notice generally shields an individual from arrest,
the police may still proceed with the arrest if they conclude that it is
essential and provide duly recorded reasons for doing so.
25. In the present case, following the interrogation, the CBI moved another
application to the Trial Court on 25.06.2024, seeking permission to
arrest the Appellant. The CBI justified the arrest on the grounds that
the Appellant had allegedly given evasive responses during questioning
and that 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.
26. In this respect, our analysis is confined to assessing whether
Section 41A(3) was violated, thereby rendering the arrest per se
illegal. First, it is trite law that there is no insurmountable hurdle in
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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.3 The
Appellant’s arrest by the CBI was thus entirely permissible, in light
of the Trial Court’s order dated 25.06.2024.
27. 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 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 to the
general rule under Section 41A, which mandates that an individual
whose appearance is required should not be arrested under Section
41(1) of the CrPC.
29. Therefore, in view of these considerations, we do not find any merit in
the Appellant’s contention that the CBI failed to comply with Section
41A CrPC, in its true letter and spirit.

ii. Whether Section 41(1)(b)(ii) of the CrPC is applicable?
30. At the outset, it is imperative to clarify that our analysis will be
restricted to the procedure outlined under Section 41(1)(b)(ii) of the

3 Central Bureau of Investigation v. Anupam J. Kulkarni (1992) 3 SCC 141
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CrPC. This is because Section 41(1), in its entirety, addresses multiple
situations and complexities regarding the procedure for arrest, which
may not be directly applicable to the intricacies of the present case.
31. In this vein, the language of Section 41(1)(b) postulates as follows:
“41. When police may arrest without warrant.—
(1) Any police officer may without an order from a Magistrate
and without a warrant, arrest any person—
…..
(b) against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which
may be less than seven years or which may extend to
seven years whether with or without fine, if the following
conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of
such complaint, information, or suspicion that such person
has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary—
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such evidence
in any manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in
the Court whenever required cannot be ensured, and the
police officer shall record while making such arrest, his
reasons in writing:
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Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not
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 disappear; or tampering with such evidence
in any manner; or to prevent such person from making
any inducement, threat or promise to a witness so as to
dissuade him from disclosing such facts to the Court or the
police officer; or unless such accused person is arrested,
his presence in the court whenever required cannot be
ensured. These are the conclusions, which one may reach
based on facts.
7.2. The law mandates the police officer to state the
facts and record the reasons in writing which led him to
come to a conclusion covered by any of the provisions
aforesaid, while making such arrest. Law further requires
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the police officers to record the reasons in writing for not
making the arrest.
7.3. In pith and core, the police office before arrest
must put a question to himself, why arrest? Is it really
required? What purpose it will serve? What object it will
achieve? It is only after these questions are addressed
and one or the other conditions as enumerated above
is satisfied, the power of arrest needs to be exercised.
In fine, before arrest first the police officers should have
reason to believe on the basis of information and material
that the accused has committed the offence. Apart from
this, the police officer has to be satisfied further that
the arrest is necessary for one or the more purposes
envisaged by sub-clauses (a) to (e) of clause (1) of
Section 41 of Cr.PC.”
33. Given this annotation, while there exists no doubt that the submissions
made by the Appellant in regard to the precepts of Section 41(1)
(b) are sound, the provision is inapplicable to the vicissitudes of
the present factual matrix. Here is a case where the court upon
application of judicial mind accorded its approval to the Appellant’s
arrest for which necessary warrant was issued. There was thus no
occasion for the arresting police officer to form an opinion regarding
the existence of valid reasons of arrest. The competent court having
undertaken such a task, the police officer cannot be expected to sit
over the order of the court.
34. Still further, Section 41(1) opens with the expression that ‘any police
officer may arrest without an order from a Magistrate or without a
warrant’. It necessarily means that where a Magistrate has issued an
order, the police officer stands absolved form his statutory obligation
of forming an opinion. Consequently, it becomes apparent that the
variables and 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
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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 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,

4 Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240
5 Union of India v. K.A. Najeeb, AIR 2021 SC 712
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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, 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.
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.
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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 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.
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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 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
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.
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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. 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 2021-22. The precise allegation is that
the accused persons had deliberately tweaked and manipulated
the excise policy of 2021-22 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.
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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 ED recorded ECIR No. HIU-II/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. 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.
710 [2024] 9 S.C.R.

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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 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 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 application, CBI mentioned in paragraph 17
that appellant was examined/interrogated in Tihar Jail on
25.06.2024. During his interrogation he remained evasive
[2024] 9 S.C.R. 711

Arvind Kejriwal v. Central Bureau of Investigation

and non-cooperative, 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
non-cooperative, 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 from co-accused
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 ill-gotten money so received
in the Assembly Elections of Goa during the year 2021-22 to
meet the election related expenditures of Aam Aadmi Party.
He further gave evasive replies regarding his role and the
role of other co-accused 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 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
712 [2024] 9 S.C.R.

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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. HIU-II/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 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.
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.
[2024] 9 S.C.R. 713

Arvind Kejriwal v. Central Bureau of Investigation

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 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.
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
714 [2024] 9 S.C.R.

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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 cannot be the proposition that only when
an accused answers the questions put to him by the investigation
agency in the manner in which the investigating agency would like
the accused to answer, would mean that the accused is cooperating
with the investigation. Further, the respondent cannot justify arrest
and continued detention citing evasive reply.
25. We should not forget the cardinal principle under Article 20(3) of the
Constitution of India that no person accused of an offence shall be
compelled to be a witness against himself. This Court has held that
such a protection is available to a person accused of an offence
not merely with respect to the evidence that may be given in the
court in the course of the trial, but is also available to the accused
at a previous stage if an accusation has been made against him
which might in the normal course result in his prosecution. Thus, the
protection is available to a person against whom a formal accusation
has been made, though the actual trial may not have commenced
and if such an accusation relates to the commission of an offence
which in the normal course may result in prosecution. An accused
has the right to remain silent; he cannot be compelled to make
inculpatory statements against himself. No adverse inference can
be drawn from the silence of the accused. If this is the position, then
the very grounds given for arrest of the appellant would be wholly
untenable. On such grounds, it would be a travesty of justice to keep
the appellant in further detention in the CBI case, more so, when he
has already been granted bail on the same set of allegations under
the more stringent provisions of PMLA.
[2024] 9 S.C.R. 715

Arvind Kejriwal v. Central Bureau of Investigation

26. That apart, the apprehension of tampering with the evidence or
influencing witnesses has already been answered by this Court in
the case of Manish Sisodia in the following manner:
57. Insofar as the apprehension given by the learned
ASG regarding the possibility of tampering the evidence is
concerned, it is to be noted that the case largely depends
on documentary evidence which is already seized by the
prosecution. As such, there is no possibility of tampering
with the evidence. Insofar as the concern with regard to
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.,1 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 lock-up of a person can cause incalculable harm
to the reputation and self-esteem of a person. No arrest
can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would
be prudent for a police officer in the interest of protection
of the constitutional rights of a citizen and perhaps in
his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation

1 [1994] 3 SCR 661 : (1994) 4 SCC 260
716 [2024] 9 S.C.R.

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as to the genuineness and bona fides of a complaint and
a reasonable belief both as to the person’s complicity and
even so as to the need to effect arrest. Denying a person
of his liberty is a serious matter. The recommendations
of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty
and freedom. A person is not liable to arrest merely on
the suspicion of complicity in an offence. There must be
some reasonable justification in the opinion of the officer
effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be
avoided if a police officer issues notice to person to attend
the Station House and not to leave the Station without
permission would do.
28. In the case of Sidhartha Vashisht alias Manu Sharma Vs. State
(NCT of Delhi),2 this Court emphasized that investigation must be
fair and effective. Investigation should be conducted in a manner so
as to draw a just balance between a citizen’s right under Articles 19
and 21 of the Constitution of India and the expansive power of the
police to make investigation. Concept of fair investigation and fair
trial are concomitant to preservation of the fundamental right of the
accused under Article 21 of the Constitution of India.
29. This Court in the case of Arnesh Kumar Vs. State of Bihar,3 while
examining the provisions of Sections 41 and 41A Cr.P.C. observed
that arrest brings humiliation, curtails freedom and cast scars forever.
This Court, while emphasizing the need to sensitize the police against
high-handed arrest, deprecated the attitude to arrest first and then
to proceed with the rest. While emphasizing that police officers
should not arrest the accused unnecessarily and that the Magistrate
should not authorize detention casually and mechanically, this Court
observed as follows:
5. Arrest brings humiliation, curtails freedom and casts
scars forever. Lawmakers know it so also the police. There
is a battle between the lawmakers and the police and it

2 [2010] 4 SCR 103 : (2010) 6 SCC 1
3 [2014] 8 SCR 128 : (2014) 8 SCC 273
[2024] 9 S.C.R. 717

Arvind Kejriwal v. Central Bureau of Investigation

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),4 a
three-Judge 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 liberty and ensuring that investigations are
not used as a tool of harassment. Referring to its earlier decision
in Arnab Ranjan Goswami Vs. Union of India,5 this Court observed
that the courts should be alive to both ends of the spectrum: the
need to ensure proper enforcement of criminal law on the one hand
and the need to ensure that the law does not become a ruse for
targeted harassment on the other hand. Courts must ensure that they
continue to remain the first line of defence against the deprivation
of liberty of the citizens. Deprivation of liberty even for a single day
is one day too many.
31. When the CBI did not feel the necessity to arrest the appellant
for 22 long months, I fail to understand the great hurry and urgency
on the part of the CBI to arrest the appellant when he was on the
cusp of release in the ED case. The substantive charge against the
appellant is under Section 477A IPC which deals with falsification
of accounts and if convicted carries a punishment of imprisonment

4 [2022] 18 SCR 494 : (2022) SCC Online SC 897
5 [2020] 8 SCR 222 : (2020) 14 SCC 12
718 [2024] 9 S.C.R.

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for a term which may extend to seven years or with fine or with
both. The appellant has also been charged under Section 7 of the
PC Act which deals with offence relating to a public servant being
bribed. Here the punishment, if convicted, is imprisonment for a term
which shall not be less than three years but which may extend to
seven years and shall also be liable to fine. Without entering into
the semantics of applicability of Section 41(1)(b)(ii) and Section 41A
Cr.P.C. as explained by this Court in Arnesh Kumar (supra), timing
of the arrest of the appellant by the CBI is quite suspect.
32. CBI is a premier investigating agency of the country. It is in public
interest that CBI must not only be above board but must also be seem
to be so. Rule of law, which is a basic feature of our constitutional
republic, mandates that investigation must be fair, transparent
and judicious. This Court has time and again emphasized that fair
investigation is a fundamental right of an accused person under
Articles 20 and 21 of the Constitution of India. Investigation must
not only be fair but must be seem to be so. Every effort must be
made to remove any perception that investigation was not carried
out fairly and that the arrest was made in a high-handed and
biased manner.
33. In a functional democracy governed by the rule of law, perception
matters. Like Caesar’s wife, 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:
[2024] 9 S.C.R. 719

Arvind Kejriwal v. Central Bureau of Investigation

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 time and
again by the Apex Court that the Party must first approach
the Court of first instance.
6. In the present case, it is more in the benefit of the
appellant, considering the complexity and the web of
the facts and the material on record, to comprehensively
determine the role of the appellant in this alleged conspiracy
to determine if he is entitled to bail. It may also be noted that
when the Bail Application was filed before this Court, the
chargesheet had not been filed. However, in the changed
circumstances, when the chargesheet has already got filed
before the learned Special Judge, it would be in the benefit of
the appellant, to first approach the Court of Sessions Judge.
7. In these circumstances, this Bail Application is hereby
disposed of with the liberty to the appellant to approach
the learned Special Judge for regular bail.
34.1 After observing that it would be more to the benefit of the
appellant if the appellant approaches the learned Special Judge
first for bail more so when the chargesheet has been filed, the
High Court relegated the appellant to the forum of the learned
Special Judge though both the Court of the Special Judge and
the High Court have concurrent jurisdiction in the matter.
35. If indeed the High Court thought of remanding the appellant to the
forum of the Court of Special Judge, it could have done so at the
threshold itself. After issuing notice, after hearing the parties at length
and after reserving the judgment for about a week, the above order
was passed by the High Court. Though couched in a language which
appears to be in favour of the appellant, in practical terms it has
only resulted in prolonging the incarceration of the appellant for a
far more longer period impacting his personal liberty.
36. In somewhat similar circumstances, this Court in Kanumuri Raghurama
Krishnam Raju Vs. State of A.P.,6 after observing that jurisdiction of the

6 (2021) 13 SCC 822
720 [2024] 9 S.C.R.

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trial court as well as of the High Court under Section 439 Cr.P.C. is
concurrent, held that 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. In the facts of that case, this Court opined that
the High Court ought to have considered the bail application of the
appellant on merit and decided the same. However, having regard
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.
37. Mr. Raju, learned Additional Solicitor General of India, while supporting
the order of the High Court vehemently argued that the appellant
has to first approach the trial court for bail though under Section 439
Cr.P.C. both the Special Court and the High Court have concurrent
jurisdiction. No special privilege should be shown or granted to the
appellant. I am afraid such a submission cannot be accepted. In
this regard, I am in respectful agreement with the view taken by this
Court in Kanumuri Raghurama Krishnam Raju. That apart, when the
appellant has been granted bail under the more stringent provisions
of PMLA, further detention of the appellant by the CBI in respect of
the same predicate offence has become wholly untenable. In such
[2024] 9 S.C.R. 721

Arvind Kejriwal v. Central Bureau of Investigation

circumstances, asking the appellant or relegating the appellant to
approach the trial court, then to the High Court and then to this
Court for a fresh round of bail proceedings in the CBI case after he
had already traversed the same route in the PMLA case would be
nothing but a case of procedure triumphing the cause of justice. In
this connection, it would be apt to refer to the observations of this
Court in the case of Manish Sisodia Vs. CBI, Criminal Appeal No.
3296 of 2024, decided on 09.08.2024:
32. It could thus be seen that this Court had granted
liberty to the appellant to revive his prayer after filing of
the chargesheet. Now, relegating the appellant to again
approach the trial court and thereafter the High Court and
only thereafter this Court, in our view, would be making
him play a game of “Snake and Ladder”. The trial court
and the High Court have already taken a view and in our
view relegating the appellant again to the trial court and
the High Court would be an empty formality. In a matter
pertaining to the life and liberty of a citizen which is one of
the most sacrosanct rights guaranteed by the Constitution,
a citizen cannot be made to run from pillar to post.
37.1 Manish Sisodia is a co-accused in the same CBI case and
the ED case. His second bail application was rejected by the
trial court on 30.04.2024 after taking about three months’ time
to decide the same. When Sisodia moved the High Court for
bail, the same also came to be rejected on 21.05.2024. It was
thereafter that Manish Sisodia approached this Court in the
second round. In the hearing which took place on 04.06.2024,
the learned Solicitor General 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
722 [2024] 9 S.C.R.

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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 to the trial court. The memorable
adage, that procedure is a hand maiden and
not a mistress of justice rings loudly in our ears.
38. Court in Gudikanti Narasimhulu Vs. Public Prosecutor,7 had highlighted
that bail is not to be withheld as a punishment. The requirement as
to bail is merely to secure the attendance of the prisoner at trial. This
Court in Manish Sisodia referred to and relied upon the aforesaid
decision and reiterated the salutary principle that bail is the rule and jail
is the exception. This Court has observed that even in straightforward
open and shut cases, bail is not being granted by the trial courts and
by the High Courts. It has been held as under:
53. The Court further observed that, over a period of time,
the trial courts and the High Courts have forgotten a very
well-settled principle of law that bail is not to be withheld
as a punishment. From our experience, we can say that it
appears that the trial courts and the High Courts attempt to
play safe in matters of grant of bail. The principle that bail
is a rule and refusal is an exception is, at times, followed
in breach. On account of non-grant of bail even in straight
forward open and shut cases, this Court is flooded with
huge number of bail petitions thereby adding to the huge
pendency. It is high time that the trial courts and the High
Courts should recognize the principle that “bail is rule and
jail is exception”.
39. Bail jurisprudence is a facet of a civilised criminal justice system. An
accused is innocent until proven guilty by a competent court following
the due process. Hence, there is presumption of innocence. Therefore,

7 [1978] 2 SCR 371 : (1978) 1 SCC 240
[2024] 9 S.C.R. 723

Arvind Kejriwal v. Central Bureau of Investigation

this Court has been reiterating again and again the salutary principle
that bail is the rule and jail is the exception. As such, the courts at
all levels must ensure that the process leading to and including the
trial does not end up becoming the punishment itself.
40. This Court has emphasized and re-emphasized time and again that
personal liberty is sacrosanct. It is of utmost importance that trial courts
and the High Courts remain adequately alert to the need to protect
personal liberty which is a cherished right under our Constitution.
41. That being the position and having regard to the discussions made
above, I am of the unhesitant view that the belated arrest of the
appellant by the CBI is unjustified and the continued incarceration 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 two judge bench of this Court.
44. Both the appeals are accordingly disposed of.

Result of the case: Appeals disposed of.

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Headnotes prepared by: Ankit Gyan