14

cannot be the proposition that only when an accused answers

the questions put to him by the investigation agency in the

manner in which the investigating agency would like the accused

to answer, would mean that the accused is cooperating with the

investigation. Further, the respondent cannot justify arrest and

continued detention citing evasive reply.

25. We should not forget the cardinal principle under

Article 20(3) of the Constitution of India that no person accused

of an offence shall be compelled to be a witness against himself.

This Court has held that such a protection is available to a

person accused of an offence not merely with respect to the

evidence that may be given in the court in the course of the trial,

but is also available to the accused at a previous stage if an

accusation has been made against him which might in the

normal course result in his prosecution. Thus, the protection is

available to a person against whom a formal accusation has been

made, though the actual trial may not have commenced and if

such an accusation relates to the commission of an offence

which in the normal course may result in prosecution. An

accused has the right to remain silent; he cannot be compelled to

make inculpatory statements against himself. No adverse

 15

inference can be drawn from the silence of the accused. If this is

the position, then the very grounds given for arrest of the

appellant would be wholly untenable. On such grounds, 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.

26. That apart, the apprehension of tampering with the

evidence or influencing witnesses has already been answered by

this Court in the case of Manish Sisodia in the following manner:

57. Insofar as the apprehension given by the

learned ASG regarding the possibility of tampering
the evidence is concerned, it is to be noted that the
case largely depends on documentary evidence
which is already seized by the prosecution. As
such, there is no possibility of tampering with the
evidence. Insofar as the concern with regard to
influencing the witnesses is concerned, the said
concern can be addressed by imposing stringent
conditions upon the appellant.

27. Power to arrest is one thing but the need to arrest is

altogether a different thing. Just because an investigating agency

has the power to arrest, it does not necessarily mean that it

 16

should arrest such a person. In Joginder Kumar Vs. State of U.P.1,

a three­Judge bench of this Court examined the interplay of

investigation and arrest. Referring to the third report of the

National Police Commission, this Court declared that no arrest

can be made just because it is lawful for police officers to do so.

The existence of the power of arrest is one thing but justification

for the exercise of it is quite another. It was held as under:

20. …….No arrest can be made because it is

lawful for the police officer to do so. The
existence of the power to arrest is one thing.
The justification for the exercise of it is quite
another. The police officer must be able to
justify the arrest apart from his power to do so.
Arrest and detention in police lock­up of a
person can cause incalculable harm to the
reputation and self­esteem of a person. No
arrest can be made in a routine manner on a
mere allegation of commission of an offence
made against a person. It would be prudent for
a police officer in the interest of protection of
the constitutional rights of a citizen and
perhaps in his own interest that no arrest
should be made without a reasonable
satisfaction reached after some investigation as

1 (1994) 4 SCC 260

 17

to the genuineness and bona fides of a

complaint and a reasonable belief both as to
the person's complicity and even so as to the
need to effect arrest. Denying a person of his
liberty is a serious matter. The
recommendations of the Police Commission
merely reflect the constitutional concomitants
of the fundamental right to personal liberty and
freedom. A person is not liable to arrest merely
on the suspicion of complicity in an offence.
There must be some reasonable justification in
the opinion of the officer effecting the arrest
that such arrest is necessary and justified.
Except in heinous offences, an arrest must be
avoided if a police officer issues notice to person
to attend the Station House and not to leave the
Station without permission would do.

28. In the case of Sidhartha Vashisht alias Manu Sharma

Vs. State (NCT of Delhi)2, this Court emphasized that investigation

must be fair and effective. Investigation should be conducted in a

manner so as to draw a just balance between a citizen’s right

under Articles 19 and 21 of the Constitution of India and the

expansive power of the police to make investigation. Concept of

fair investigation and fair trial are concomitant to preservation of

2 (2010) 6 SCC 1
 18

the fundamental right of the accused under Article 21 of the

Constitution of India.

29. This Court in the case of Arnesh Kumar Vs. State of

Bihar3, while examining the provisions of Sections 41 and 41A

Cr.P.C. observed that arrest brings humiliation, curtails freedom

and cast scars forever. This Court, while emphasizing the need to

sensitize the police against high­handed arrest, deprecated the

attitude to arrest first and then to proceed with the rest. While

emphasizing that police officers should not arrest the accused

unnecessarily and that the Magistrate should not authorize

detention casually and mechanically, this Court observed as

follows:

5. Arrest brings humiliation, curtails

freedom and casts scars forever. Lawmakers
know it so also the police. There is a battle
between the lawmakers and the police and it
seems that the police has not learnt its lesson:
the lesson implicit and embodied in CrPC. It
has not come out of its colonial image despite
six decades of Independence, it is largely
considered as a tool of harassment, oppression
and surely not considered a friend of public.
The need for caution in exercising the drastic
3 (2014) 8 SCC 273
 19

power of arrest has been emphasized time and

again by the courts but has not yielded desired
result. Power to arrest greatly contributes to
its arrogance so also the failure of the
Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of
police corruption. The attitude to arrest first
and then proceed with the rest is despicable. It
has become a handy tool to the police officers
who lack sensitivity or act with oblique motive.

30. Again in the case of Mohd. Zubair Vs. State (NCT of

Delhi)4, a three­Judge Bench of this Court once again emphasized

that the existence of the power of arrest must be distinguished

from the exercise of the power of arrest. The exercise of the power

of arrest must be pursued sparingly. This Court reiterated the

role of the courts in protecting personal liberty and ensuring that

investigations are not used as a tool of harassment. Referring to

its earlier decision in Arnab Ranjan Goswami Vs. Union of India 5,

this Court observed that the courts should be alive to both ends

of the spectrum: the need to ensure proper enforcement of

criminal law on the one hand and the need to ensure that the

law does not become a ruse for targeted harassment on the other

4 (2022) SCC Online SC 897

5 (2020) 14 SCC 12
 20

hand. Courts must ensure that they continue to remain the first

line of defence against the deprivation of liberty of the citizens.

Deprivation of liberty even for a single day is one day too many.

31. 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. The substantive

charge against the appellant is under Section 477A IPC which

deals with falsification of accounts and if convicted carries a

punishment of imprisonment for a term which may extend to

seven years or with fine or with both. The appellant has also

been charged under Section 7 of the PC Act which deals with

offence relating to a public servant being bribed. Here the

punishment, if convicted, is imprisonment for a term which shall

not be less than three years but which may extend to seven years

and shall also be liable to fine. Without entering into the

semantics of applicability of Section 41(1)(b)(ii) and Section 41A

Cr.P.C. as explained by this Court in Arnesh Kumar (supra),

timing of the arrest of the appellant by the CBI is quite suspect.

 21

32. CBI is a premier investigating agency of the country. It

is in public interest that CBI must not only be above board but

must also be seem to be so. Rule of law, which is a basic feature

of our constitutional republic, mandates that investigation must

be fair, transparent and judicious. This Court has time and again

emphasized that fair investigation is a fundamental right of an

accused person under Articles 20 and 21 of the Constitution of

India. Investigation must not only be fair but must be seem to be

so. Every effort must be made to remove any perception that

investigation was not carried out fairly and that the arrest was

made in a high­handed and biased manner.

33. In a functional democracy governed by the rule of law,

perception matters. Like Caesar’s wife, an investigating agency

must be above board. Not so long ago, this Court had castigated

the CBI comparing it to a caged parrot. It is imperative that CBI

dispel the notion of it being a caged parrot. Rather, the

perception should be that of an uncaged parrot.

Impugned order

34. Let me now deal with the impugned judgment and

order of the High Court whereby the bail application of the

 22

appellant was disposed of. Appellant had filed Bail Application

No. 2285 of 2024 before the High Court under Section 439

Cr.P.C. in the CBI case where he was taken into custody on

26.06.2024. On 05.07.2024, a learned Judge of the High Court

issued notice, fixing 17.07.2024 for arguments. On 17.07.2024,

arguments were heard on interim bail; thereafter, the case was

directed to be listed on 29.07.2024 at 03:00 PM. On 29.07.2024,

arguments were heard and the judgment was reserved. Finally,

the judgment was pronounced on 05.08.2024, the relevant

portion of which reads as under:

5. Though there is no quarrel about the

proposition that the District Courts and this
Court have concurrent jurisdiction, as has been
held in the Judgments relied on behalf of the
appellant, but at the same time it has been held
time and again by the Apex Court that the Party
must first approach the Court of first instance.

6. In the present case, it is more in the benefit

of the appellant, considering the complexity and
the web of the facts and the material on record,
to comprehensively determine the role of the
appellant in this alleged conspiracy to determine
if he is entitled to bail. It may also be noted that
when the Bail Application was filed before this
 23

Court, the chargesheet had not been filed.

However, in the changed circumstances, when
the chargesheet has already got filed before the
learned Special Judge, it would be in the benefit
of the appellant, to first approach the Court of
Sessions Judge.

7. In these circumstances, this Bail

Application is hereby disposed of with the liberty
to the appellant to approach the learned Special
Judge for regular bail.

34.1. After observing that it would be more to the benefit of

the appellant if the appellant approaches the learned Special

Judge first for bail more so when the chargesheet has been filed,

the High Court relegated the appellant to the forum of the

learned Special Judge though both the Court of the Special

Judge and the High Court have concurrent jurisdiction in the

matter.

35. If indeed the High Court thought of remanding the

appellant to the forum of the Court of Special Judge, it could

have done so at the threshold itself. After issuing notice, after

hearing the parties at length and after reserving the judgment for

about a week, the above order was passed by the High Court.
 24

Though couched in a language which appears to be in favour of

the appellant, in practical terms it has only resulted in

prolonging the incarceration of the appellant for a far more longer

period impacting his personal liberty.

36. In somewhat similar circumstances, this Court in

Kanumuri Raghurama Krishnam Raju Vs. State of A.P. 6, after

observing that jurisdiction of the trial court as well as of the High

Court under Section 439 Cr.P.C. is concurrent, held that merely

because the High Court was approached by the appellant without

approaching the trial court would not mean that the High Court

could not have considered the bail application of the appellant.

In the facts of that case, this Court opined that the High Court

ought to have considered the bail application of the appellant on

merit and decided the same. However, having regard to the fact

that much time had lapsed since passing of the order of the High

Court and there were subsequent medical reports of the

appellant, this Court did not relegate the appellant back to the

High Court but considered the bail application of the appellant

on merit herein itself. This Court held thus:

6 (2021) 13 SCC 822

 25

14. The jurisdiction of the trial court as well as

the High Court under Section 439 of the Code of
Criminal Procedure, 1973 is concurrent and merely
because the High Court was approached by the
appellant without approaching the trial court
would not mean that the High Court could not
have considered the bail application of the
appellant. As such, in our view, the High Court
ought to have considered the bail application of the
appellant on merits and decided the same.
However, since the High Court has not considered
the matter on merits and much water has flown
since the passing of the order of the High Court, as
now there are two medical reports of the appellant,
one by the government hospital on the direction of
the High Court and the other by Army Hospital on
the directions of this Court, we deem it fit and
proper to consider the bail application of the
appellant on merits.

37. Mr. Raju, learned Additional Solicitor General of India,

while supporting the order of the High Court vehemently argued

that the appellant has to first approach the trial court for bail

though under Section 439 Cr.P.C. both the Special Court and the

High Court have concurrent jurisdiction. No special privilege

should be shown or granted to the appellant. I am afraid such a

 26

submission cannot be accepted. In this regard, I am in respectful

agreement with the view taken by this Court in Kanumuri

Raghurama Krishnam Raju. That apart, when the appellant has

been granted bail under the more stringent provisions of PMLA,

further detention of the appellant by the CBI in respect of the

same predicate offence has become wholly untenable. In such

circumstances, asking the appellant or relegating the appellant

to approach the trial court, then to the High Court and then to

this Court for a fresh round of bail proceedings in the CBI case

after he had already traversed the same route in the PMLA case

would be nothing but a case of procedure triumphing the cause

of justice. In this connection, it would be apt to refer to the

observations of this Court in the case of Manish Sisodia Vs. CBI,

Criminal Appeal No. 3296 of 2024, decided on 09.08.2024:

32. It could thus be seen that this Court had granted

liberty to the appellant to revive his prayer after filing of
the chargesheet. Now, relegating the appellant to again
approach the trial court and thereafter the High Court
and only thereafter this Court, in our view, would be
making him play a game of “Snake and Ladder”. The
trial court and the High Court have already taken a view
and in our view relegating the appellant again to the
trial court and the High Court would be an empty
 27

formality. In a matter pertaining to the life and liberty of

a citizen which is one of the most sacrosanct rights
guaranteed by the Constitution, a citizen cannot be
made to run from pillar to post.

37.1. Manish Sisodia is a co­accused in the same CBI case

and the ED case. His second bail application was rejected by the

trial court on 30.04.2024 after taking about three months’ time

to decide the same. When Sisodia moved the High Court for bail,

the same also came to be rejected on 21.05.2024. It was

thereafter that Manish Sisodia approached this Court in the

second round. In the hearing which took place on 04.06.2024,

the learned Solicitor General for India made a statement before

the Court that investigation would be concluded and final

complaint as well as chargesheet would be filed in both the ED

and CBI cases on or before 03.07.2024. On the basis of the above

statement of the learned Solicitor General, this Court disposed of

the two criminal appeals of Shri Manish Sisodia with liberty to

him to revive his prayer afresh after filing of final complaint and

chargesheet. When Shri Sisodia approached this Court for bail

after the complaint and the chargesheet were filed, Mr. Raju

learned Additional Solicitor General of India appearing for the ED

 28

as well as the CBI contended that Shri Sisodia should again

approach the trial court for regular bail as in the interregnum,

the complaint and the chargesheet were filed. Such submission

of Mr. Raju was rejected by this Court. Adverting to the earlier

order of this Court dated 04.05.2024, this Court in Manish

Sisodia observed as under:

33. ……..It will be a travesty of justice to

construe that the carefully couched order
preserving the right of the appellant to revive
his prayer for grant of special leave against the
High Court order, to mean that he should be
relegated all the way down to the trial court.
The memorable adage, that procedure is a hand
maiden and not a mistress of justice rings
loudly in our ears.

38. This Court in Gudikanti Narasimhulu Vs. Public

Prosecutor7, had highlighted that bail is not to be withheld as a

punishment. The requirement as to bail is merely to secure the

attendance of the prisoner at trial. This Court in Manish Sisodia

referred to and relied upon the aforesaid decision and reiterated

the salutary principle that bail is the rule and jail is the

exception. This Court has observed that even in straightforward

7 (1978) 1 SCC 240
 29

open and shut cases, bail is not being granted by the trial courts

and by the High Courts. It has been held as under:

53. The Court further observed that, over a

period of time, the trial courts and the High Courts
have forgotten a very well­settled principle of law
that bail is not to be withheld as a punishment.
From our experience, we can say that it appears
that the trial courts and the High Courts attempt
to play safe in matters of grant of bail. The
principle that bail is a rule and refusal is an
exception is, at times, followed in breach. On
account of non­grant of bail even in straight
forward open and shut cases, this Court is flooded
with huge number of bail petitions thereby adding
to the huge pendency. It is high time that the trial
courts and the High Courts should recognize the
principle that “bail is rule and jail is exception”.

39. Bail jurisprudence is a facet of a civilised criminal

justice system. An accused is innocent until proven guilty by a

competent court following the due process. Hence, there is

presumption of innocence. Therefore, this Court has been

reiterating again and again the salutary principle that bail is the

rule and jail is the exception. As such, the courts at all levels
 30

must ensure that the process leading to and including the trial

does not end up becoming the punishment itself.

40. This Court has emphasized and re­emphasized time

and again 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.

41. That being the position and having regard to the

discussions made above, I am of the unhesitant view that 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.

42. In the circumstances, the judgment and order of the

High Court dated 05.08.2024 in W.P.(Crl.) No. 1939 of 2024 is

clarified to the above context while the judgment and order of the

High Court dated 05.08.2024 in Bail Application No. 2285 of

2024 is set aside.

43. Consequently, it is directed that the appellant shall be

released on bail forthwith in the CBI case i.e. RC No.

0032022A0053 dated 17.08.2022. In so far bail conditions are

 31

concerned, this Court in the ED case i.e. in Criminal Appeal No.

2493 of 2024 has imposed several terms and conditions including

clauses (b) and (c) vide the orders dated 10.05.2024 and

12.07.2024 which have been incorporated in clause (d) of

paragraph 47(ii) of the judgment delivered by Justice Surya Kant.

Though I have serious reservations on clauses (b) and (c) which

debars the appellant from entering the office of Chief Minister and

the Delhi Secretariat as well as from signing files, having regard to

judicial discipline, I would refrain from further expressing my

views thereon at this stage since those conditions have been

imposed in the separate ED case by a two judge bench of this

Court.

44. Both the appeals are accordingly disposed of.

………………………………J.
[UJJAL BHUYAN]

NEW DELHI;
SEPTEMBER 13, 2024.
 1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.3816 OF 2024

(Arising out of SLP(Crl.)No.11023/2024)

ARVIND KEJRIWAL … APPELLANT

Versus

CENTRAL BUREAU OF INVESTIGATION … RESPONDENT

WITH

CRIMINAL APPEAL No.3817 OF 2024

(Arising out of SLP(Crl.)No.10991/2024)

O R D E R

1. Leave granted.

2. In view of the separate order passed by Hon’ble [Link]

Ujjal Bhuyan, however, there being a concurrent opinion that the

appellant is entitled to be released on bail, subject to the terms

and conditions mentioned in para 47 of the order, authored by

Hon’ble [Link] Surya Kant, the Criminal Appeal challenging the

legality of arrest (arising out of SLP(Crl.)No.10991/2024 is

dismissed, the Criminal Appeal arising out of

SLP(Crl.)No.11023/2024 is allowed and while setting aside the

impugned judgment of the High Court dated 05.08.2024, the appellant

is directed to be released on bail, subject to the following terms

and conditions:

a. the Appellant is directed to be released on

bail in connection with FIR No. RC0032022A0053/2022
 2

registered by the CBI at PS CBI, ACB, upon furnishing bail

bonds for a sum of Rs. 10,00,000 /- with two sureties of
such like amount, to the satisfaction of the Trial Court;

b. the Appellant shall not make any public

comments on the merits of the CBI case, it being sub judice
before the Trial Court. This condition is necessitated to
dissuade a recent tendency of building a self-serving
narrative on public platforms;

c. however, this shall not preclude the Appellant

from raising all his contentions before the Trial Court;

d. the terms and conditions imposed by a

coordinate bench of this Court vide orders dated
10.05.2024 and 12.07.2024 passed in
Criminal Appeal No. 2493/2024, titled Arvind Kejriwal v.
Directorate of Enforcement, are imposed mutatis mutandis
in the present case;

e. the Appellant shall remain present before the

Trial Court on each and every date of hearing,
unless granted exemption; and

f. the Appellant shall fully cooperate with the

Trial Court for expeditious conclusion of the
trial proceedings.

.........................J.
(SURYA KANT)

.........................J.
(UJJAL BHUYAN)

NEW DELHI
DATED: 13.09.2024