2024 (9) TMI 780 - SC - Money Laundering

SC grants bail despite rejecting illegal arrest claim, finds CBI properly followed Section 41A CrPC procedures

Arvind Kejriwal Versus Central Bureau of Investigation

The SC dismissed the criminal appeal challenging the legality of arrest, finding the CBI followed proper procedure under Section 41A CrPC by recording ... Illegal arrest - application for the grant of regular bail rejected - declination to exercise its concurrent jurisdiction under Section 439 of the Code of Criminal Procedure, 1973 - FIR stated 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 - Appellant’s name did not figure in the FIR. Whether the procedure undertaken in arresting the Appellant was illegal? - HELD THAT:- 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. Whether Section 41A(3) was violated, thereby rendering the arrest per se illegal? - HELD THAT:- First, it is trite law that there is no insurmountable hurdle in 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 - 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 - 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 - There are no merit in the Appellant's contention that the CBI failed to comply with Section 41A CrPC, in its true letter and spirit. Whether Section 41(1)(b)(ii) of the CrPC is applicable? - HELD THAT:- 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) - Having considered the CBI's compliance with Section 41A of the CrPC and the inapplicability of Section 41(1)(b)(ii) of the CrPC, the Appellant’s arrest does not suffer with any procedural infirmity. Consequently, the plea regarding non-compliance of these provisions, merits rejection. Whether the Appellant is entitled to the relief of regular bail? - HELD THAT:- 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 proceeding - 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 - the Appellant satisfies the requisite triple conditions for the grant of bail. Whether the filing of a chargesheet is a change in circumstances warranting relegation to the trial court for grant of regular bail? - HELD THAT:- An undertrial 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. Since notice was issued and the parties were apparently heard on merits by the High Court, it is not deemed necessary at this stage to relegate the Appellant to the Trial Court even though filing of a chargesheet is a change in the circumstances. The Criminal Appeal challenging the legality of arrest (arising out of SLP (Crl.) No. 10991/2024) is, hereby, dismissed. In view of the separate order passed by Hon’ble Mr.Justice Ujjal Bhuyan, however, there being a concurrent opinion that the appellant is entitled to be released on bail, subject to the terms and conditions imposed, authored by Hon’ble Mr.Justice Surya Kant, the Criminal Appeal challenging the legality of arrest is dismissed - Appellant is directed to be released on bail subject to fulfilment of conditions imposed. Issues Involved:1. Legality of the Appellant's arrest.2. Entitlement of the Appellant to regular bail.3. Impact of the filing of a chargesheet on the bail proceedings and whether it necessitates relegation to the Trial Court.Issue-wise Detailed Analysis:A. Legality of the Appellant's Arrest1. Compliance with Section 41A of the CrPC:- Section 41A pertains to the issuance of a notice by a police officer when arrest is not warranted but presence is required.- The Appellant was already in judicial custody in another matter (ED case), and the CBI sought the Trial Court's permission to interrogate him, which was granted.- The Court held that Section 41A does not mandate the issuance of a notice to an individual already in judicial custody. The CBI followed the correct procedure by seeking the Trial Court's permission.- The Appellant's contention regarding non-compliance with Section 41A was dismissed as the CBI recorded reasons for the arrest and followed the procedural safeguards.2. Applicability of Section 41(1)(b)(ii) of the CrPC:- Section 41(1)(b)(ii) outlines conditions for arrest without a warrant.- The Court clarified that this provision is inapplicable as the arrest was made upon the order of a competent court.- The reference to Section 41(2) in the High Court's judgment was deemed a typographical error and was clarified to be Section 41(1)(b)(ii).- The Court concluded that the Appellant's arrest did not suffer from any procedural infirmity and dismissed the plea regarding non-compliance.B. Entitlement to Regular Bail1. Complexity and Material on Record:- The High Court denied bail, emphasizing the need for a comprehensive determination of the Appellant's role in the alleged conspiracy.- The Court noted that prolonged incarceration pending trial infringes upon personal liberty and established legal principles.- The Appellant had been granted interim and regular bail in the ED matter, and several co-accused had also been granted bail.2. Apprehension of Influencing the Outcome of the Trial:- The Court found that all relevant evidence was already in the CBI's possession, negating the likelihood of tampering by the Appellant.- The Appellant's position and roots in society reduced the risk of him fleeing the country.- The Court imposed stricter bail conditions to address apprehensions of influencing witnesses.3. Triple Conditions for Grant of Bail:- The Court resolved that the Appellant satisfied the requisite triple conditions for bail: no criminal antecedents, not a flight risk, and no threat of tampering with evidence or witnesses.- The Court ordered the Appellant's release on bail with specific conditions.C. Impact of Filing a Chargesheet1. General Procedure:- Generally, the Trial Court should consider bail after the chargesheet is filed, as it provides material to form a prima facie opinion on various aspects.- Each case should be assessed on its own merits, recognizing that no one-size-fits-all formula exists for determining bail.2. High Court's Role:- The High Court should redirect the accused to the Trial Court at the threshold. However, significant delays following notice may not warrant relegation to the Trial Court.- In this case, the High Court did not relegate the Appellant at the preliminary stage, and the parties were heard on merits.3. Conclusion:- The Court found it unnecessary to relegate the Appellant to the Trial Court at this stage, even though the filing of a chargesheet is a change in circumstances.Conclusion:1. The appeal challenging the legality of the arrest is dismissed.2. The appeal for bail is allowed, and the High Court's judgment denying bail is set aside.3. The Appellant is directed to be released on bail with specific conditions:- Furnishing bail bonds for Rs. 10,00,000 with two sureties.- Not making public comments on the merits of the CBI case.- Adhering to conditions imposed in the ED case.- Remaining present before the Trial Court on hearing dates unless exempted.- Fully cooperating with the Trial Court for expeditious trial proceedings.