NEW DELHI (TIP): The Supreme Court on Thursday, September 5, 2024, reserved judgment on Delhi Chief Minister Arvind Kejriwal’s petitions for bail and quashing of arrest by the Central Bureau of Investigation (CBI) in the excise policy case, shrugging off the Central agency’s pitch that he must first knock on the doors of the trial court.

The apex court reminded the CBI of a comment made in a recent judgment granting bail to Mr. Kejriwal’s former deputy, Manish Sisodia, in the same liquor policy case. The court, in that judgment, had concluded that asking Mr. Sisodia to go back to the trial court for bail would be like “making him play a game of snakes and ladders”. It had after all taken Mr. Sisodia 17 months and multiple trips up and down the court hierarchy to finally get bail.

Justice Ujjal Bhuyan, part of the Bench headed by Justice Surya Kant, clarified to the CBI that the ‘snakes-and-ladders’ remark in the August 9 judgment allowing Mr. Sisodia bail was not meant as a “charitable observation” about the prosecution in the excise policy case.

In fact, grounds like prolonged incarceration, no possibility of completion of trial in the near future, and “process becoming the punishment” were cited as grounds for grant of bail to Bharat Rashtra Samithi (BRS) leader K. Kavitha and Mr. Sisodia in the excise policy case. The court further did not take kindly to the CBI’s claim that bail to the Chief Minister would “demoralize” the Delhi High Court. The High Court had, on August 5, upheld his arrest and told him to knock on the doors of the trial court for bail.

Justice Kant asked the probe agency, represented by Additional Solicitor General S.V. Raju, to not second guess what the Supreme Court would do. “Whatever we do in this case, be sure it would not be to the detriment of the institution,” Justice Kant told Mr. Raju.

Senior advocate A.M. Singhvi, for Mr. Kejriwal, said his case was “unique”. He had secured bail thrice in the money-laundering case linked to the excise policy ‘scam’ — twice from the Supreme Court and once in the trial court.
Mr. Singhvi questioned the need for the CBI to arrest the Chief Minister on June 26 when he was already in judicial custody at the time on money laundering charges. “He was the most captive interrogatee,” the senior advocate said.

He said the CBI’s sole justification for arresting a Chief Minister was that he appeared “evasive and non-cooperative” to them when confronted with evidence.

“But does he not have a fundamental right against self-incrimination? When they say he was not cooperating, they actually meant he was not declaring himself guilty,” the senior lawyer argued.

Mr. Singhvi said the High Court was only required to employ the triple test in Mr. Kejriwal’s case for bail.

The Chief Minister was a constitutional functionary and hardly a “flight risk”. Besides, he had been an undertrial for a “sufficiently long time” since his arrest by the Directorate of Enforcement (ED) in March. Thirdly, there was no question of tampering as “lakhs of documents” relevant to the case were already filed in court, many in electronic form. Mr. Raju countered that an agency’s power to arrest was part of its power to investigate.

He submitted that Mr. Kejriwal was arrested by the CBI on the basis of permission given by the trial court. He said the application made by the CBI for permission to arrest Mr. Kejriwal was never challenged by him. The procedure for his arrest was duly followed. He was given the grounds for his arrest in writing and was represented by a legal counsel. The Supreme Court could intervene only if a constitutional right was violated. Mr. Sisodia and Ms. Kavitha had done the grind of the trial courts before appealing to the Supreme Court for bail. Mr. Kejriwal could not act like a “privileged person”, Mr. Raju said.

The Additional Solicitor General said persons linked to the Assembly election in Goa, where the excise policy pay-offs were allegedly laundered, had come forward as witnesses. “If the court gives him (Kejriwal) relief now, they will all turn hostile. At least some time should be given for their statements to be recorded,” he urged.