The Delhi High Court has dismissed a petition filed by Delhi Chief Minister Arvind Kejriwal challenging his arrest by the CBI in the Delhi Excise Policy case. The court found the arrest legal and justified.

In a judgment delivered on August 5th, 2024, the Delhi High Court dismissed a petition by Arvind Kejriwal seeking to overturn his arrest by the Central Bureau of Investigation (CBI) in connection with the 2021-2022 Delhi Excise Policy case. The judgment, authored by Justice Neena Bansal Krishna, made several important observations while upholding the legality of Kejriwal's arrest. Among other contentions, the petitioner (Kejriwal) contended that the arrest is in violation of Section 41(1)(b)(ii) of Cr.P.C., 1973, however the court observed that "According to Section 41(2) of Cr.P.C., 1973, if the arrest is by way of a warrant or under the Order of Magistrate, the only conditions to be satisfied are that a person may be arrested for an offence in respect of which a complaint has been made or credible information has been received or reasonable suspicion exists. Therefore, it is explicit that the additional conditions specified in Sub- Clauses (a) to (e) of Section 41(1)(b)(ii) of Cr.P.C., 1973 were not attracted, since the arrest of the petitioner was with the Order of the Court."

Compliance of Section 41A Code of Criminal Procedure: The Court addressing the implications of Section 41A CrPC observed that Section 41 of the Cr.P.C. allowed police to arrest without a warrant, leading to misuse and human rights violations. To address this, Section 41A was introduced in 2010, which requires notice before arrest. However, in Kejriwal matter, the CBI after extensive investigations revealing the his involvement, a sanction for his interrogation was granted in April 2024. Section 41A mandates that if a person complies with the notice, they should not be arrested unless the police record reasons justifying the arrest. The accused, while in judicial custody for the PMLA case, could not be interrogated in the CBI case without court permission. Section 41A (3) Cr.P.C. allows arrest even if the person complies with the notice, but only for recorded cogent reasons. Thus, the arrest's justification hinges on whether the application to arrest, dated 25.04.2024, provided valid reasons.

Compliance of Sec 41(1) Code of Criminal Procedure for Arrest without Warrants: The Court observed that Section 41(1) Cr.P.C. allows police to arrest without warrants in cognizable offences punishable by up to seven years, but only with credible information, reasonable complaint, or suspicion, and under specific conditions in Section 41(1)(b)(ii)(a) to (e). The Court held that the reliance placed by the petitioner on the Supreme Court’s ruling in Arvind Kejriwal v. Directorate of Enforcement, which deemed his PMLA arrest illegal. However, this case is distinguishable as the CBI arrested him with court orders, not under Section 41(1).

Compliance with Sec 41(2) Cr.P.C. for Arrest with Warrants: Addressing the legitimacy of the arrest the court has stated that Section 41(1) Cr.P.C. applies to arrests without warrants, but in this case, the CBI sought and obtained court permission for the petitioner's arrest. While the Investigating Officer (I.O.) interrogated the petitioner on 24.06.2024 and, citing detailed evidence of his involvement in the Delhi Excise Policy, requested his arrest on 25.06.2024 under Section 41(2) Cr.P.C. The Special Judge, after considering the evidence and the petitioner's evasiveness, issued a production warrant and later approved his police remand on 26.06.2024, citing the need for custodial interrogation to unearth the larger conspiracy and prevent potential interference with the investigation. therefore, on record that the “arrest was not solely based on ambiguous terms of non-cooperative attitude and evasive replies but these terms were duly qualified and explained.

The Court for the above reasons held that the petitioner's arrest was justified due to his non-cooperative attitude, which hampered evidence collection, and not as a violation of his rights under Article 20(3) of the Constitution. The judgment underscored that while an accused individual has the right against self-incrimination (Article 20(3) of the Constitution of India), their deliberate non-cooperation in providing information within their knowledge can be grounds for arrest and custodial interrogation. And the Investigating Officer (I.O.) should be allowed to conduct investigations without undue interference unless there is an abuse of power. The arrest was permitted by the Court based on reasonable suspicion and credible information detailed in the application dated 26.04.2024.

The Bench has placed reliance on Union of India vs. Padam Narayan Aggarwal AIR 2009 SC 254 wherein, the Apex court has observed that the power to arrest under Section 104 of the 1962 Act must be exercised objectively and cannot be influenced by the officer's whims. The requirement to record reasons prevents arbitrariness and ensures compliance with Article 14 of the Constitution.

The Bench has also placed reliance on the Canadian judgment Gifford vs. Carlsen which explained the phrase “Reason to Believe‘ as conveying a conviction in mind, founded on evidence regarding the existence of a fact or the doing of an act which is of higher standard than a mere suspicion.”

Arrest reflects Malice in Law: The Court has held that the petitioner’s arrest was not malicious but a result of a thorough investigation. Initially, the CBI had to proceed cautiously due to the petitioner’s high-profile position. Evidence against him accumulated over time, leading to a sanction for prosecution on 23.04.2024. The arrest was necessary as witnesses only came forward after his detention. Thus holding the CBI’s actions as justified and not driven by malice or an ulterior motive.

Distinction from ED Case: While acknowledging the Supreme Court's earlier judgment that deemed Kejriwal's arrest by the Enforcement Directorate (ED) in a related case illegal, the Delhi High Court distinguished this case from the ED matter. The court stressed that the CBI’s investigation was independent and that the circumstances leading to the arrest differed significantly.

And in conclusion, the Delhi High Court’s judgment in Arvind Kejriwal vs. Central Bureau of Investigation is on the legality of the CBI’s actions and the presence of sufficient grounds for arrest based on the evidence and circumstances presented. The court did not find merit in Kejriwal's arguments regarding the lack of grounds for arrest or malicious intent by the investigative agency.

CORAM: HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA. BETWEEN: ARVIND KEJRIWAL v. CENTRAL BUREAU OF INVESTIGATION & ANR. & ANR. DOJ: 5th August, 2024