The Supreme Court on Friday granted relief to Delhi chief minister Arvind Kejriwal in the excise policy case, strongly reiterating that “bail is the rule and jail an exception” while emphasising that personal liberty must prevail over prolonged detention pending a trial, especially when it does not threaten societal interests or derail the judicial process.
A bench of justices Surya Kant and Ujjal Bhuyan asserted that the issue of bail transcends mere procedural adherence -- it embodies fundamental principles of liberty, justice, public safety and the burden on public resources.
Both judges concurred on the bail decision, bringing an end to the Aam Aadmi Party (AAP) convener’s months-long incarceration that began with his arrest by the Enforcement Directorate (ED) on March 21, followed by CBI on June 25. He was granted a 21-day interim bail in May by the top court for Lok Sabha elections campaigning.
Kejriwal walked out of Tihar Jail at 6.25pm to a rousing welcome from hundreds of party workers and senior leaders, including Punjab chief minister Bhagwant Mann and former Delhi deputy chief minister Manish Sisodia, who were waiting for him outside the prison.
“I want to thank people who prayed for my release. Every drop of my blood is dedicated in the service of my nation. Jails cannot break me. I will continue my fight against anti-national forces,” he said.
{{/usCountry}}“I want to thank people who prayed for my release. Every drop of my blood is dedicated in the service of my nation. Jails cannot break me. I will continue my fight against anti-national forces,” he said.
{{/usCountry}}Shooting down the Central Bureau of Investigation (CBI) contention that Kejriwal should be relegated to trial court for bail, justices Kant and Bhuyan underscored that an evolved jurisprudence of bail is crucial for a socially sensitive judicial process. The prolonged incarceration of an accused, pending trial, the bench held, is an unjust deprivation of personal liberty, which is protected under Article 21 of the Indian Constitution.
The bench further noted that the investigation by CBI was complete in the matter and that the trial was likely to be delayed due to the large number of witnesses and documents involved.
The decision to release Kejriwal has immediate political implications, particularly as the AAP prepares for upcoming elections in Haryana and Delhi.
The grant of bail to Kejriwal came with the same conditions imposed by another bench of the Supreme Court in July – he cannot go to the CM’s office; sign off on official files or make public statements about his role in the excise case. Additionally, the top court on Friday ordered that Kejriwal must remain present at all trial hearings unless granted exemption, and that he is to fully cooperate with the trial court to ensure the expeditious conclusion of the proceedings.
The Bharatiya Janata Party (BJP) highlighted these conditions to bail does not mean acquittal and that the matter was still before the court.
“The Supreme Court has made very serious observations. It said that Arvind Kejriwal’s arrest was legal and if it was legal then the court is satisfied with the facts and evidence that were presented by the investigation agencies. Bail does not mean acquittal, it is a court procedure,” said Virendra Sachdeva, Delhi BJP chief.
Notably, the two judges issued divergent opinions on the legality of the arrest but refrained from referring the matter to a larger bench in the wake of their common decision to release Kejriwal on bail. While justice Kant, who headed the bench, held that there were no procedural lapses in Kejriwal’s arrest by CBI and that the investigative agency had acted within the bounds of the law, justice Bhuyan held that stating the arrest was “unjustified” and was carried out only to prevent Kejriwal’s release after he was granted bail in the connected case lodged by ED.
Justice Bhuyan also expressed his “serious reservations” against restraining Kejriwal from entering the CM’s office or signing off official files even as he desisted from commenting on it because of “judicial discipline” and a previous order by another two-judge bench in the ED case against the Delhi CM that imposed such conditions.
Senior counsel Abhishek Manu Singhvi and Vikram Chaudhary, along with advocate Vivek Jain, appeared for Kejriwal. Additional solicitor general SV Raju and advocate Zoheb Hossain represented CBI in the matter.
Kejriwal’s bail plea came after his arrest by CBI in June over corruption allegations in the now-scrapped Delhi excise policy. The case had gained widespread attention as it followed the arrest of former deputy chief minister Manish Sisodia, who was similarly implicated, and was granted bail by the top court on August 10. The Delhi high court on August 5 denied Kejriwal’s bail plea because he did not go to the trial court first, while also upholding his arrest, leading him to challenge both the decisions in the Supreme Court.
Kejriwal approached the Supreme Court on August 12, two days after the top court granted bail to Sisodia in the related probed by CBI and ED. In his petition, Kejriwal relied heavily on the Sisodia verdict, in which the top court held that the former deputy CM’s long incarceration of 17 months and his continued detention in a case where there was no hope of trial ending anytime soon impinged on his fundamental right to liberty and speedy trial under Article 21 of the Constitution.
Judges agree on bailBoth justices Kant and Bhuyan made compelling statements in defence of personal liberty and expeditious decisions in matters of bail.
Justice Kant drew upon precedents set by the Supreme Court in cases like Union of India VS KA Najeeb, which expanded the principle that even under stringent laws such as the Unlawful Activities (Prevention) Act (UAPA), prolonged detention without trial is impermissible. This principle asserted that liberty should be favored unless the release of the accused could jeopardise societal interests or derail the judicial process.
In the present case, justice Kant noted that the FIR was registered on August 17, 2022, and since then, multiple charge sheets have been filed, with the most recent one dated July 29, 2024. Given the extensive documentation and the number of witnesses involved, the judge observed that the trial’s completion is not imminent. This extended period of incarceration, without a swift resolution of the trial, amounts to an infringement of Kejriwal’s right to liberty, the judge held.
“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,” justice Kant said.
Justice Kant emphasised that it was the duty of the courts to decide the bail pleas without any delay. However, in the present case, the Delhi high court chose to hear the arguments on bail extensively before ruling that Kejriwal should go to the trial court first.
“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,” held justice Kant.
Justice Bhuyan agreed, underscoring that bail should be the rule and detention the exception. Expressing a resolute affirmation of personal liberty as a cornerstone of constitutional rights, he held that personal liberty should not be compromised by procedural inefficiencies or delays.
“Personal liberty is sacrosanct and fundamental under our Constitution. 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,” he asserted.
The judge criticised the August 5 decision of the Delhi high court to relegate Kejriwal to the trial judge, noting that such a move, after extensive hearings, only served to extend his detention unnecessarily. This delay, he held, undermined the very essence of personal liberty that the judiciary is sworn to protect.
Citing precedent, justice Bhuyan reinforced the principle that both the trial court and the high court possess concurrent jurisdiction to hear bail plea under Section 439 of the Criminal Procedure Code (CrPC).
He emphasised that the requirement for bail is fundamentally to ensure the accused’s presence at trial, not to serve as a punitive measure.
“Bail is the rule and jail is the exception,” said the judge, echoing the principle laid down in the Sisodia case by the top court. “This court has consistently underscored that bail should not be withheld as a form of punishment. The principle that ‘bail is the rule and jail is the exception’ must guide judicial decisions,” justice Bhuyan said.
Judges differ on arrest procedure and justifiability Even as both the judges eventually affirmed the legality of Kejriwal’s arrest, their dissent was writ large in the 60-page judgment. Justices Kant and Bhuyan apparently adopted different standards in assessing the legality of Kejriwal’s arrest by CBI and reached different conclusions.
Justice Kant’s decision reflected a nuanced approach towards bail, acknowledging that while the arrest procedures followed by the CBI were legally sound and that it was not required to go into the necessity to arrest in view of the trial court’s satisfaction, continued incarceration for an extended period contravenes established legal principles.
Justice Kant held that there were no procedural lapses in Kejriwal’s arrest by CBI. While Kejriwal’s legal team argued that he was not issued a prior notice before arrest, the judge noted that the investigative agency had acted within the bounds of the law, adhering to the required legal safeguards under the Criminal Procedure Code (CrPC). According to justice Kant, the arrest did not violate any procedural norms since he was arrested only after the trial court’s nod.
“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 of CrPC, 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,” he held.
Justice Kant also noted that CBI’s decision to arrest the Delhi CM was justified based on the evidence collected during the investigation, which was looked into by the trial judge while allowing the arrest and custodial interrogation.
But Justice Bhuyan strongly disagreed, stating that the arrest was ”unjustified”. He was emphatic that the timing of the arrest appeared to be orchestrated to prevent Kejriwal from being released on bail in the ED case, and was done perhaps only to “frustrate the bail” granted by the trial court to the AAP chief on June 20.
“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,” he said.
Justice Bhuyan also held that the grounds for arrest they did not meet the required standard of necessity. The judge emphasised that evasive responses to investigative queries could not justify continued detention, reiterating the principle that an accused cannot be compelled to self-incriminate and that no adverse inference should be drawn from their silence. “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,” he said.
“This court has emphasised time and again in recent weeks 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,” declared justice Bhuyan.
Even as two judges differed on the question of the legality of the arrest, the final judgment reconciled to upholding Kejriwal’s arrest on procedural grounds, with justice Bhuyan stating that the impugned judgment of the high court is “clarified to the above context”.