It said that its judgment would be carefully framed to obviate demoralising subordinate judiciary while contributing to the evolution of criminal law
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.