LexARVIND KEJRIWAL versus CENTRAL BUREAU OF INVESTIGATION
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[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. Digital Supreme Court Reports 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
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