Supreme Court reserves order on Kejriwal’s bail plea in CBI case

The Supreme Court on Thursday reserved its verdict on Delhi chief minister Arvind Kejriwal’s petition challenging his arrest in connection with the now scrapped excise policy, observing that its judgment would be carefully framed to obviate demoralising subordinate judiciary while contributing to the evolution of criminal law.
The Aam Aadmi Party (AAP) convener challenged the August 5 decision of the Delhi high court, which upheld his arrest by the Central Bureau of Investigation (CBI) and refused to entertain his plea for bail because Kejriwal did not go to the trial court first.
“Whatever judgment we pass, we will make sure our institution is not demoralised in any manner…it’s the duty of the constitutional court to contribute to the development of law…not to apply law in a regressive manner,” said a bench of justices Surya Kant and Ujjal Bhuyan.
The comment came after CBI’s counsel warned the court against setting a precedent that might “demoralise” the subordinate courts; but the bench assured him that the Supreme Court’s ruling would carefully consider the integrity of all judicial institutions.
Kejriwal has been in custody since March 21 following his arrest by the Enforcement Directorate in the same case, apart from a 21-day interim bail in May granted by the top court for Lok Sabha elections campaigning. On July 12, the Supreme Court granted interim bail to Kejriwal in the ED case, acknowledging that he had spent over 90 days in incarceration. Still, he continued to remain in custody due to his arrest by CBI on June 26 in the excise policy matter.
“Snakes and ladders” with bail
The day-long hearing on Thursday witnessed intense exchanges between senior advocate Abhishek Manu Singhvi, representing Kejriwal, and additional solicitor general (ASG) SV Raju, who defended CBI’s actions.
Singhvi focussed his arguments on what he described as an “unwarranted” arrest, noting that “for two years, the CBI did not see the need to arrest” Kejriwal after registering the case in August 2022.
He pointed out that CBI called Kejriwal in April 2023 but did not act until June 26, 2024, when they “insurance arrested” him to make certain that he remains incarcerated in case the AAP leader got bail in the ED case.
Alleging that Kejriwal’s arrest breached procedural safeguards under Section 41 and 41A of the Criminal Procedure Code (CrPC) necessitating a notice and sufficient cause before arrest, Singhvi argued that Kejriwal was arrested merely for “non-cooperation,” which he described as a vague and insufficient reason.
The senior counsel emphasised that “non-cooperation does not mean self-incrimination,” criticising the high court’s decision to send the bail plea back to the trial court, despite having heard all relevant issues.
“The high court erred in sending the matter back when it had all the facts before it,” said Singhvi, citing over a dozen judgments to support his claim that concurrent jurisdiction exists in bail matters. He added that Kejriwal had already passed the “triple test” for bail, which assesses whether the accused is a flight risk, likely to tamper with evidence or capable of influencing witnesses. The counsel stressed that after Kejriwal was given bail in the ED case registered under the more stringent law, Prevention of Money Laundering Act, there is no reason why he should be denied bail in the CBI case.
Singhvi underscored the Supreme Court’s ruling in the Manish Sisodia case, where the top court granted bail and emphasised that it would be unfair to send Sisodia back to the trial court for bail, as doing so would amount to playing a “snake and ladder” game.
At this juncture, ASG Raju interjected, drawing a distinction between the two cases. “Sisodia had already approached the trial court twice and his bail was rejected. How many times has that happened here? It’s not fair to rely on a single paragraph without considering the full facts. My lords cannot act as the court of first instance; there’s a clear hierarchy,” Raju argued.
Singhvi, however, maintained his position, asserting that the prosecution wanted to “restart the ladder from the very beginning.”
Justice Kant further probed whether a prima facie case existed for Kejriwal’s arrest under Section 41, to which Singhvi argued that “the purpose of Section 41A is to avoid arrest unless it’s absolutely necessary,” noting that two years had passed without any action from CBI. “Why now?” he asked.
Kejriwal can’t get special treatment: ASG
Responding, ASG Raju pushed back against what he called hyper-technical arguments from Singhvi, asserting that CBI followed proper procedure under the CrPC. He pointed out that Kejriwal chose to bypass the trial court and directly approach the high court, arguing that “this is not the regular course” and accused Kejriwal of seeking “special treatment”. According to Raju, Kejriwal should have adhered to the legal process like any ordinary citizen, and his decision to approach higher courts prematurely was evidence of him acting as if he were a “special” and “extraordinary person”.
“I am not saying that the high court does not have concurrent jurisdiction or that it cannot hear a bail matter directly. High courts can do this when there are special circumstances. The only special circumstance in this case is that he is an influential politician, and he thinks he can go to the high court directly and the high court must hear him,” argued the ASG.
The law officer added: “Instead of going to the trial court like an ‘aam aadmi’ (common man), he went to the high court because he believes he is an extraordinary person and deserves special treatment. He did not even bother to show any exceptional circumstances why he cannot go to the trial court first.”
At one point of the hearing, the bench expressed concern over litigants bypassing the trial court, observing: “We are wondering how long we should hear in a bail matter. Do ordinary mortals get this much time in a bail matter?…One bail matter has taken the whole day. The amount of cases we have to hear…we wonder, what happens to a poor litigant.”
Responding, Raju said: “If this becomes the norm, trial courts will lose their purpose. They will become redundant.”
In his closing argument, Singhvi questioned the grounds for the arrest, particularly the accusation of non-cooperation. “How does non-cooperation amount to grounds for arrest?” he asked.
Singhvi emphasised that Kejriwal was not a “hardened criminal” and that his arrest was neither justified nor necessary.
Raju rebutted by insisting that Kejriwal’s arrest was fully justified based on new evidence uncovered during the investigation. Raju also highlighted that Kejriwal had allegedly influenced decisions in Punjab linked to the excise policy, revealing a “broader nexus of corruption” that warranted continued detention.
The CBI case is premised on Kejriwal’s alleged involvement in the formulation and execution of the Delhi excise policy 2021-22, which was later scrapped over allegations of irregularities and corruption, followed by a probe ordered by the Delhi lieutenant governor.
Although Kejriwal did not hold any official ministerial portfolio, CBI has contended that all critical decisions in the formulation of the policy were taken at his, “in connivance with the then deputy chief minister and minister of excise, Manish Sisodia.”
Kejriwal had 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.