Arvind Kejriwal says his arrest by CBI was "insurance arrest"; Delhi High Court reserves verdict

The Delhi High Court on Wednesday reserved its verdict in the plea filed by Arvind Kejriwal challenging his arrest by the Central Bureau of Investigation (CBI) in connection with alleged irregularities in the framing of the now-scrapped Delhi excise policy of 2021-22..Justice Neena Bansal Krishna also reserved her verdict in the interim bail plea filed by Kejriwal.The Court will hear arguments on the main bail plea filed by Kejriwal on July 29. This was after Kejriwal today argued that his arrest by the CBI was an "insurance arrest" and was done because the central agency felt that Kejriwal might get relief in money laundering case initiated by Enforcement Directorate in relation to the same excise policy matter."The most striking feature of this case is that it is unfortunately an insurance arrest. Clearly, the CBI did not want to, intend to or have material to arrest. But the CBI felt he may come out in the other (ED) case. Therefore, they arrested him," Senior Advocate Abhishek Manu Singhvi said on behalf of Kejriwal.Singhvi also pointed out that Kejriwal had got three interim orders in his favour in the ED case."I have, effectively, three release orders in my favour under very, very stringent provisions. First is the interim bail order by the Supreme Court to campaign during elections. The second is the recent interim bail. It is indefinite unconditional relief. One is the order from the trial court which has been stayed by the High Court," he submitted.These orders show that the man is entitled to be released and he would have been released but for this insurance arrest, Singhvi added..CBI Special Public Prosecutor (SPP) DP Singh countered the allegation that it was an "insurance arrest" by CBI to prevent Kejriwal from coming out of jail after securing bail in ED case."Supreme Court granted him interim bail on May 10 for the purpose of campaigning for elections only. My way of looking at it is that there is no bar on me to arrest him. He came out on bail in the ED case. I could've arrested him on that day only... That could be something which can be called overreaching. I being a responsible agency, decided to wait," Singh said.Later after he got bail from trial court in ED case, CBI did not arrest him."The order of stay (by Delhi High Court) on his bail in ED case was to be pronounced on June 25. Only after this order came did we arrest him. If it was an insurance arrest, I could have arrested him before the High Court order. It would have raised eyebrows but I only arrested him when this court gave a complete stay on his bail. We cannot deal with what would happen and what will not happen. If he had been granted interim bail, even then I could have arrested him," the SSP argued..The Court was hearing two pleas filed by Kejriwal.While one plea has challenged Kejriwal's arrest, the other plea has sought bail..Background.The CBI arrested Kejriwal on June 26, while he was in judicial custody in connection with a money laundering case probed by ED.Kejriwal has filed two separate petitions in the High Court seeking bail and his arrest by the CBI in the Excise Policy Case. He has already been granted bail by the Supreme Court in the ED case. .It is the Delhi Chief Minister's case that his arrest is in clear violation of the statutory mandate prescribed under Section 41 and 60A of the Code of Criminal Procedure (CrPC)."That in the present case despite the offence being punishable of 7 years, requirement of Section 41A & 60A notice was not adhered by the Investigating officer and hence the arrest of the Petitioner without the compliance of the requirement as mandated under law is illegal and non-est in law," the plea challenging his arrest stated.He has, therefore, sought directions to release him from custody and to quash the entire CBI proceedings against him.His lawyers argue that the CBI had registered the FIR in the case in August 2022 but the arrest was happening after nearly two years.It was also pointed out that Kejriwal was already under judicial custody when he was arrested by CBI and hence, there could be no fear of him tampering with evidence or witnesses or posing any danger or flight risk..Hearing Today.When the matter was taken up for hearing today, Senior Counsel Singhvi, appearing for Kejriwal, pointed out how the CBI had not arrested him for two years since the first FIR in the case was registered in 2022 and that the arrest happened after winds started blowing in favour of Kejriwal in ED case.In this regard, Singhvi traced the timeline of events. "The CBI FIR is of August 17, 2022. I am not named in that. On April 14, 2023, I was summoned under Section 160, CrPC as a witness. They have written so. I appeared for 9 hours, two days later. Eight months of 2023 go by they don't see it (fit) to arrest me or examine me. Then three months of 2024 go by. On March 21, 2024, after Model Code of Conduct for Lok Sabha elections comes into force, I am arrested by the ED. From March we go to May 10. I am in ED custody and the Supreme Court releases me for 3 weeks. Supreme Court doesn't think I will tamper with evidence, influence witnesses or fly away. The interim bail comes to an end and I surrender. The Special Judge granted me bail on June 20 (in ED case). It is clear that psychological winds start blowing in the CBI mind. I won't blame the CBI, these winds are blowing in someone else's mind. They see that I have a Supreme Court order in my favour and the trial court has granted me bail. They (CBI) then produced me before the trial court and arrested me," Singhvi said. He pointed out that because of CBI arrest, Kejriwal is back to square one despite the Supreme Court granting him bail in ED case."This month, the Supreme Court released me. But I am back to square one because of this insurance arrest. They (CBI) want to ensure, by hook or crook, more by crook than hook, that I stay in jail," Singhvi argued.The only intention to arrest him was to keep him behind the bars."The dates of the case cry out for themselves. There was no need to arrest, no necessity to arrest and I would say no intention to arrest. But they have to do it because they want to keep me behind bars," he said..Pertinently, Singhvi argued that the arrest of Kejriwal was in violation of Section 41 of Code of Criminal Procedure and the guidelines laid down by the Supreme Court in the Arnesh Kumar judgment."Section 41A says I shall not be arrested unless there are reasons recorded. Where is the reason given and where is the application of the judicial mind," Singhvi demanded. He also criticised the trial court for its conduct in allowing the arrest."They interrogated me for 3 hours in Tihar Jail. They then move an application for my arrest. There is no question answered - how, which, why? I am not heard on these proceedings also. No natural justice. What is going on? On June 25 the application (to arrest Kejriwal) is moved. The same day the order is passed allowing it. Thanks to their mercy, I get the copy of application on July 6... This is how trial courts are being conducted," he said.Specifically on the same, it was argued that the trial judge allowed the application for arrest without giving notice to Kejriwal."This judge allowed the application without notice to me. If this is allowed, what is the use of all the Supreme Court judgements etc? If a court even unwittingly says you go and arrest a person then that arrest is valid by itself. There are these clear judgements (of Arnesh Kumar), but they are wasted. Sometimes, to restate the obvious is important. Because people forget the obvious. Supreme Court said all this 10 years ago," he said. Singhvi said that Kejriwal could have been released on the basis of Section 41 CrPC alone but the trial judge ignored Section 41."How could the trial court judge have ignored these provisions? The Supreme Court's intentions made clear in Arnesh Kumar judgement 10 years ago are blown to smithereens in practice," he submitted.The Senior Counsel also responded to the claim by CBI that new material emerged which necessitated the arrest of Kejriwal."They say new evidence has emerged of my role as accused. They say there is one evidence. What is that one? That one is Magunta Srinivas Reddy (approver). This was in January and I am arrested in June. They had the same material when they came to interrogate me but these same grounds of interrogation became the grounds of arrest. These materials for non-arrest became the material of arrest just hours later," Singhvi said.He said that Kejriwal satisfies the test for bail since he is not a flight risk, will not tamper with evidence and has cooperated with the probe. "The simple test of bail is triple test. Apply common sense, common sense is paramount. What is common sense? Can I go and touch the evidence? I cannot. Non cooperation? You ask, I will have coffee with you every month. Flight risk? There is no flight risk," he said.In this regard, it was pointed out how he had got three bail orders in his favour in the ED case."I have got relief three times. Twice by SC and once by trial court. Unless your lordship finds something earth-shattering ... what is wrong in me seeking bail now. Five of the principal accused in this case have got bail, 9 not arrested," Singhvi pointed out..Special Public Prosecutor DP Singh on behalf of CBI opposed the bail plea.He contended that Kejriwal cannot decide how to probe the case."They say his interrogation went for 9 hours. We have audio video recording. Everything was typed, he checked it and made corrections as well. And those corrections were accommodated. All this while, there was a huge crowd outside the CBI office. Who will decide how to investigate a case? They will decide?" he asked.He said that the accused has all privileges while the investigating agency has far less privileges. "As far as the accused go, they have all the special privileges and rights. The privilege with the investigation agency is far less. My privilege is (deciding) what witnesses and evidence are necessary and then compiling them all. Whatever I rely upon, I put them as relied documents and what I don't rely upon, the list is given to court which the accused can inspect," it was submitted.Singh underscored that the CBI has the right decide which accused has to be arrested and when."I have the right to decide which accused is to be arrested when... He is the Chief Minister. His role was not apparent at the start because this happened under the Excise Minister. Certain things came before us but we decided not to proceed against him because he is the CM," he stated. Hence, the concerned minister Manish Sisodia was arrested first, the SPP said."CBI arrested the minister himself. The minister (Manish Sisodia) has not been granted bail. It's been rejected twice by this court and is now pending in Supreme Court. The five people who have been granted bail were working under the authority of K Kavitha, Manish Sisodia or Kejriwal. To say why they are special? They are not primary people. They were working under them (Kavitha, Sisodia and Kejriwal)," Singh pointed out.He further claimed that there has been no observation yet that CBI exceeded its powers while arresting Kejriwal.Singh also explained the reason why arrest was made only in June this year."He is a public servant. Prevention of Corruption Act requires permissions to investigate under Section 17. To say that in January, I had the statement of Magunta Reddy; in April I got the sanction. There is a mechanism at the CBI. An investigating officer (IO) alone cannot take a call. We took three months to collect all the material. It's not as if we did nothing. Whatever I need to do was only after April 23, not before it. To say why I took one year to get this sanction... He is the CM of Delhi," Singh said..He also rebutted the argument by Kejriwal that bail was granted three times in ED case. "The first order was for (campaigning for) elections. Can they boast about it? It shows the strength of our judicial system that bail was granted for elections. It shows we are not like Pakistan, as they argued," Singh said."Right, first bail was only for participating in elections. But the second and third orders are on merit," the Court remarked."No, the second order by the trial court has been stayed by this court by giving elaborate reasons. The Supreme Court (third order of bail) has only dealt with Section 19 PMLA," Singh pointed out.Singh also said that the parameters of arrest under PMLA (for ED) and CrPC (for CBI) are different."I (CBI) can do it (arrest) on mere suspicion whereas under Section 19 PMLA, the threshold is so much higher that the arrest can be when there is material to show he is guilty of offence," the SPP said."Their question is, you had material since January so why didn't you arrest him for six months," the Court said."If I have sufficient cause for arrest, I can. The Supreme Court has said there are two different parameters in CrPC and PMLA and they cannot be equated. CrPC permits arrest for the purpose of investigation," Singh replied.Singh proceeded to show the Case Diary to court and said that it was shown to the trial court as well.Kejriwal's lawyers countered saying that the trial court order recorded nothing about the case diary.However, Singh maintained that it was shown to the court."You (Kejriwal lawyers) were there and it was argued," he said..Singh also disputed Kejriwal's claim that he was cooperating with the probe."The protection under the Constitution is against self-incrimination. But if I ask him, 'was he in the meeting?', he has to answer yes or no. We ask him 'whose idea was it was to privatise the liquor business', he says 'it wasn't my idea.' He is ready to blame everyone except himself. He is the CM. We ask him 'who appointed this person', he says he has no idea. He is the national convenor of AAP and says he doesn't know," SPP argued.On the timing of Kejriwal's arrest, Singh said,"My subjectivity is not like police. The decision here (in CBI) is taken by a chain of officers. The trial court is conscious of timing but the court says there is material and justification of arrest. The court allows custodial interrogation. We have passed the judicial scrutiny," it was submitted.On compliance with Section 41 CrPC, the SPP said that the CBI only has to frame an opinion and the court will test whether that opinion was correct or not."There are specific reasons given and that is why the court allowed our application. We have passed the test of judicial scrutiny, I have met the criteria....We arrested him, the entire grounds of arrest was given and they argued against the remand," it was contended..Singh also pointed out that there are two pleas before the Court - one challenging the arrest and the other seeking bail."There are two things here. A writ for illegal arrest and the other is bail. I have explained why he was arrested but what is also necessary is the bail application. If I have convinced this court that the arrest was not illegal, only then we go to bail. Because if the arrest is illegal then he gets bail automatically," Singh said.He, therefore, said that the bail plea should be argued before trial court first instead of High Court."The parameters of bail will be different from arrest. For bail my lady will have to go into all the details. We are process of filing the chargesheet as well. There are four chargesheets pending in the trial court and therefore, it is only proper that the bail is first argued in the trial court because the trial court is familiar with all the facts. This court has the concurrent jurisdiction to hear the bail but if at all the trial court first hears the bail, then my lady will have the benefit of the trial court's order," he submitted.The Court then told Singhvi that the CBI counsel had a valid point."First you need to resolve this.. He (CBI) is right to the extent that the trial court ... If your arrest is declared illegal then you will be released," the single-judge said."Your lordship is not bound by his refusal to argue the bail. : Every time, he (CBI counsel) says you can do concurrent but don't do it here. No reason is given why it shouldn't be heard here. My lady can say I am releasing him on interim bail and the main plea will be decided later," Singhvi said..Singhvi also said that Kejriwal has been granted bail in ED case which stems from the same set of facts and bail under PMLA is more stringent. I have been given bail in Section 45 PMLA offence. It may not technically be the same offence, but the facts are the same. Keep these things in mind. Bail requires minimum arguments from both of us. Three orders are already there.Singhvi also said that if the High Court decides that the arrest is legal, then the Court has to decide the bail plea."The facts of the cases are same. If my lady decides that arrest is illegal, then no need to go to bail but if the arrest is legal, then my lady is to decide the bail," he said.Singh said that the reason bail should be argued before trial court is that there are four chargesheets before the trial court and it will be well equipped with the facts of the case."I am giving the reason why the trial court should first hear the bail. The reason is four chargesheets are before the trial court. He has already influenced the witnesses and the investigation has also been derailed," Singh said."I have cited a judgement that says my lords (HC) has concurrent jurisdiction. The argument is that chargesheet is before trial court. Of course the chargesheet is before the trial court. It cannot be filed before the High Court or Supreme Court. Do the Supreme Court judges who gave those judgements not know that chargesheets are filed before the trial court," Singhvi retorted.