Summary
A two-Judge Bench granted regular bail to the Delhi Chief Minister in the CBI excise-policy case. Surya Kant J. upheld the legality of his arrest while in judicial custody, made with the trial court's prior permission, but held that prolonged pre-trial incarceration in a trial unlikely to end soon would breach Article 21. Ujjal Bhuyan J., concurring on bail, wrote separately that the necessity and timing of the CBI's arrest were unjustified.
Issues
- Whether the CBI's arrest of an accused already in judicial custody in another case was illegal for non-compliance with Sections 41(1)(b)(ii) and 41A CrPC.
- Whether the appellant, even if lawfully arrested, was entitled to regular bail.
- Whether filing of the chargesheet after a bail application is moved in the High Court is a change of circumstances requiring the accused to be relegated to the trial court.
Provisions considered
- Section 41A, Code of Criminal Procedure, 1973The notice requirement is meant to secure attendance and does not contemplate notice to a person already in judicial custody; the trial court's permission to interrogate satisfied its essentials, and the reasons in the CBI's application seeking leave to arrest met Section 41A(3). (¶¶ 17, 20, 21, 22, 23, 24, 26, 27, 28, 29)
- Section 41(1)(b)(ii), Code of Criminal Procedure, 1973The conditions governing arrest without warrant, as explained in Arnesh Kumar, did not apply because the arrest followed a court order and warrant issued on judicial consideration. (¶¶ 30, 31, 32, 33, 34, 36)
- Section 41(2), Code of Criminal Procedure, 1973Relates to non-cognizable offences and did not apply; the High Court's reference to it was accepted as a typographical error. (¶¶ 9, 35)
- Section 439, Code of Criminal Procedure, 1973The trial court and the High Court have concurrent jurisdiction; an undertrial should ordinarily approach the trial court first, but a High Court that issues notice and hears the matter on merits should not relegate the accused at that late stage. (¶¶ 2, 43, 44, 45, 46)
- Article 21, Constitution of IndiaContinued incarceration for an extended period pending a trial unlikely to conclude soon would infringe the appellant's right to liberty. (¶¶ 38, 40)
- Sections 120B and 477A, Indian Penal Code, 1860Offences in the FIR concerning the framing and implementation of the 2021-22 excise policy; noted in describing the case. (¶ 3.2)
- Section 7, Prevention of Corruption Act, 1988Offence in the FIR, noted in describing the case. (¶ 3.2)
- Article 20(3), Constitution of IndiaRelied on in Ujjal Bhuyan J.'s separate opinion: an accused's right to silence means evasive replies cannot justify arrest or continued detention.
Held
- Section 41A CrPC does not require notice to a person already in judicial custody. Because the court is the custodian of an undertrial, the investigating agency must obtain the competent court's permission to interrogate him; serving notice through the jail without informing the court could enable arrests behind the court's back. The trial court's permission satisfied the essentials of Section 41A. (¶¶ 20, 21, 22, 23)
- There is no bar on arresting a person already in custody, for the same or a different offence, by converting judicial custody into police custody under a court order. Section 41A(3) permits arrest of a person who has complied with a notice if the officer records reasons for its necessity; the reasons were recorded in the application seeking leave to arrest and summarised in the arrest memo. (¶¶ 26, 27, 28, 29)
- The conditions in Section 41(1)(b)(ii) CrPC govern arrest without a Magistrate's order or warrant. Where the court, applying its judicial mind, has authorised the arrest and issued a warrant, the police officer is absolved of forming an independent opinion on necessity, so those conditions do not apply. The arrest suffered from no procedural infirmity. (¶¶ 33, 34, 36)
- Prolonged pre-trial incarceration is an unjust deprivation of liberty. With four supplementary chargesheets, 17 accused, 224 witnesses and voluminous records, the trial was unlikely to end soon. The appellant had been granted interim bail in the ED case on the same facts, co-accused had been granted bail, the evidence was in the CBI's possession and he was not a flight risk, so he satisfied the triple test, subject to strict conditions. (¶¶ 38, 39, 40, 41, 42)
- Ordinarily the trial court should consider bail first after a chargesheet is filed, but there is no straitjacket rule. A High Court approached directly should ideally relegate the accused at the threshold; once it has issued notice and heard the matter on merits after delay, relegation is inappropriate because bail claims tied to personal liberty should not oscillate between courts on technicalities. (¶¶ 43, 44, 45, 46)
- Ujjal Bhuyan J., concurring on bail, wrote separately on the arrest. The CBI did not arrest the appellant for about 22 months and moved only after he was granted regular bail in the ED case, which cast doubt on the timing and the arrest itself. Evasive replies or non-cooperation cannot justify arrest or continued detention given the right against self-incrimination under Article 20(3). Power to arrest differs from the need to arrest. Relegating the appellant to the trial court after bail under the stricter PMLA regime would let procedure triumph over justice, and bail is the rule and jail the exception.
Result
Appeal challenging the legality of arrest dismissed (Ujjal Bhuyan J. expressing the separate view that the arrest was unjustified); appeal against refusal of bail allowed and the High Court's bail order set aside; appellant released on bail on a bond of Rs. 10,00,000 with two sureties, barred from public comment on the merits of the case, bound by the conditions imposed in the ED matter on 10.05.2024 and 12.07.2024, and required to attend every hearing and cooperate for expeditious trial.