Prolonged incarceration is unjust deprivation of liberty: SC while granting bail to Kejriwal

New Delhi, Sep 13 (PTI) The Supreme Court on Friday granted bail to Delhi Chief Minister Arvind Kejriwal in CBI’s corruption case related to excise policy scam, saying the prolonged incarceration amounts to “unjust deprivation of liberty”.

Launching a scathing attack on the CBI, the apex court also questioned the necessity and timing of the AAP convener’s arrest, and said the agency must dispel the notion of being a “caged parrot”.

Kejriwal, who was arrested on March 21 by the Enforcement Directorate (ED) and later by the Central Bureau of Investigation (CBI), came out after spending 155 days in Tihar jail on the evening hours following completion of procedural formalities in a Delhi court here.

A bench of Justices Surya Kant and Ujjal Bhuyan granted the relief to Kejriwal on furnishing a bail bond of Rs 10 lakh and two sureties of like amount.

The relaxation in the bail conditions — that the chief minister can go to the Delhi Secretariat, or sign files by the apex court — will not change the situation for Kejriwal as opposite conditions were imposed by a coordinate bench earlier while granting bail to him in a money laundering case.

The top court directed Kejriwal not to make any public comment on the merits of the case and he shall remain present before the trial court on each and every date of hearing, unless granted exemption.

Reacting to the apex court judgment, AAP demanded that the BJP apologise to the country for keeping “staunchly honest” leader Kejriwal in jail, while the BJP said the Delhi chief minister should immediately resign from his post as the Supreme Court has granted him only conditional bail.

While Justice Kant and Justice Bhuyan concurred on the issue of grant of bail, they, however, differed on the question of legality of arrest by the CBI.

Writing a separate concurring judgment on bail to the AAP supremo, Justice Bhuyan said the arrest of Kejriwal by the CBI was unjustified.

Holding that Kejriwal’s arrest does not suffer with any procedural infirmity, Justice Kant, who wrote a 27-page judgment, said the CBI complied with the procedure encompassed within the framework of Section 41A of the CrPC.

Justice Kant said although the procedure for the Kejriwal’s arrest meets the requisite criteria for legality and compliance, his continued incarceration would infringe upon established legal principles and his right to liberty.

Rejecting the CBI’s contention of influencing the outcome of the trial, Justice Kant said all evidence and material relevant to the agency’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,” Justice Kant wrote.

On the issue that Kejriwal should be relegated to the trial court for bail, the apex court said if there are significant delays following notice, it may not be prudent to send the matter back.

Justice Bhuyan questioned the timing of Kejriwal’s arrest by the CBI and said the agency’s aim was to frustrate grant of bail to him in the ED case.

“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,” Justice Bhuyan said.

He said the CBI cannot justify the arrest and continued detention citing evasive replies by Kejriwal, and added that non-cooperation cannot mean self-incrimination.

“The CBI must dispel the notion of being a caged parrot, must show it is an uncaged parrot,” Justice Bhuyan said.

“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,” he said.

Justice Bhuyan said he has serious reservations on the conditions imposed in the ED case on Kejriwal which bar him from entering the CM’s office and signing files. “I am not commenting on conditions imposed on Kejriwal due to judicial discipline as it was in separate ED case,” he added.

Kejriwal has filed two separate petitions challenging the denial of bail and against his arrest by the CBI in the corruption case filed by the central agency. The AAP chief was arrested by the CBI on June 26.

He has challenged in the apex court the Delhi High Court’s August 5 order which upheld his arrest in the corruption case. On July 12, the apex court had granted interim bail to Kejriwal in the money laundering case.

The excise policy was scrapped in 2022 after the Delhi lieutenant governor ordered a CBI investigation into alleged irregularities and corruption involving its formulation and execution.

According to the CBI and the ED, irregularities were committed while modifying the excise policy and undue favours extended to licence holders.