The need for a larger bench reference on legality of Arvind Kejriwal arrest

The Supreme Court's role as the ultimate arbiter of justice and interpreter of the law is predicated on the principles of consistency, coherence and finality.

On September 13, the Supreme Court granted bail to Delhi Chief Minister (CM) Arvind Kejriwal in the case registered by the Central Bureau of Investigation (CBI) in relation to the corruption allegations surrounding the now scrapped Delhi Excise Policy of 2021-22.

Kejriwal had filed two separate pleas before the top court - one challenging the legality of his arrest by the CBI and a second plea seeking bail.

A Bench of Justices Surya Kant and Ujjal Bhuyan unanimously held that the Aam Aadmi Party (AAP) leader should be released on bail.

However, the judges differed on the legality of the CM's arrest.

Justice Kant held that the CBI's arrest of Kejriwal after he was granted bail in the Enforcement Directorate (ED) case was valid and in compliance with relevant procedural laws.

"There is no impediment in arresting a person who is already in custody for another case for purposes of investigation. CBI in their application has noted why the arrest was necessary and since there was a judicial order. There was no violation of Section 41(A)(3) of Code of Criminal Procedure," Justice Kant found.

When a magistrate has issued an order, the investigating agency stands absolved from giving reasons for arrest, which was what happened in the present case, he added.

"Section 41(1) opens with the expression that ‘any police officer may arrest without an order from a Magistrate or without a warrant’. It necessarily means that where a Magistrate has issued an order, the police officer stands absolved form his statutory obligation of forming an opinion. Consequently, it becomes apparent that the variables and conditions ensconced in Section 41(1)(b)(ii) of the CrPC would cease to apply in the present context, given the order granted by the Trial Court prior," the judgment by Justice Kant stated.

On the other hand, Justice Bhuyan differed from Justice Kant with respect to the necessity and the timing of the AAP leader's arrest.

Justice Bhuyan criticised the CBI, saying that Kejriwal's arrest by the agency after he secured bail in the ED case was only to frustrate his release from prison.

"...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," he held.

The judge went on to say that the CBI must dispel the notion that it is the Central government's "caged parrot". He said that the arrest was not necessary, and that the power of arrest should not be used for targeted harassment.

To sum up, it is clear that the two judges, despite granting Kejriwal bail unanimously, effectively differed on the issue of legality of his arrest by the CBI.

However, despite this disagreement, the judges did not refer the question of the legality of CBI's arrest of Kejriwal to a larger bench.

When a bench of two judges is unable to reach a consensus on a particular point, the time-honoured tradition is to ask the Chief Justice to refer the disputed issue to a larger bench. This ensures that the Court speaks with one voice and avoids the perils of conflicting decisions.

The final common order by both the judges only referred to the aspect of grant of bail to Kejriwal and had no indication of the recourse taken after there was an effective split decision on the issue of legality of his arrest.

There is a possibility that despite questioning the arrest by CBI on different lines like motive, timing etc, Justice Bhuyan eventually upheld the arrest and has concurred with the opinion of Justice Kant. However, the order is silent on this aspect.

When a bench of two judges concurs on some issues but disagrees on others, referral of the disputed issues to a larger bench is essential. This ensures clarity, consistency and judicial discipline, upholding the integrity of the legal process and reinforcing the Court's authority through collective deliberation.

In a recent case pertaining to the cultivation of genetically modified mustard, a division bench of the Supreme Court delivered a split verdict on some issues.

While Justice BV Nagarathna quashed the approval granted by the Genetic Engineering Appraisal Committee and the Ministry of Environment and Forests for such cultivation, Justice Sanjay Karol upheld the same. Notably, both the judges even agreed on some issues. On account of this split on some issues, the Court directed the matter to be placed before the Chief Justice of India to constitute a larger bench to hear the matter afresh.

Similarly, in January this year, Justices Aniruddha Bose and Bela Trivedi gave a split decision on the interpretation of Section 17A of the Prevention of Corruption Act, 1988 while refusing to quash proceedings against Andhra Pradesh Chief Minister Chandrababu Naidu in the skill development scam. On account of the split decision, the matter was referred to larger bench. Notably, both judges had unanimously refused to quash proceedings against Naidu.

Similarly, on July 12, while granting interim bail to Kejriwal in the money laundering case initiated by the ED, the top court had referred certain legal questions raised by Kejriwal to a larger bench.

The questions referred included whether "necessity to arrest" was a ground to challenge an arrest made by the ED under Section 19 of the Prevention of Money Laundering Act (PMLA).

The division bench had prima facie said that the mere 'need to interrogate' a person does not mean that there is a necessity to arrest the said person.

In the absence of a reference to a larger bench in the CBI case, it would mean that the judges have unanimously upheld the arrest of Kejriwal by CBI.

But when one reads the opinion by Justice Bhuyan, this is not the picture which emerges.

"...arrest by CBI raises more questions than it answers. CBI did not feel the need to arrest him though he was interrogated in March 2023 and it was only after his ED arrest was stayed...CBI became active and sought custody of Jejriwal and thus no need of arrest for over 22 months. Such action by CBI raises serious questions on the timing of the arrest and such an arrest by CBI was only to frustrate the bail granted in ED case," Justice Bhuyan had observed in his judgment.

The opinion of Justice Bhuyan raises questions regarding the legality and propriety of the CBI's arrest of Kejriwal, leaving a lingering concern that the issue remains unresolved.