NO need to travel back to trial court
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.3816 OF 2024
@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 11023 OF 2024
ARVIND KEJRIWAL APPELLANT(S)
VERSUS
CENTRAL BUREAU OF INVESTIGATION RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.3817 OF 2024
@ SPECIAL LEAVE PETITION (CRIMINAL) No. 10991 OF 2024
J U D G M E N T
UJJAL BHUYAN, J.
34. Let me now deal with the impugned judgment and
order of the High Court whereby the bail application of the
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appellant was disposed of. Appellant had filed Bail Application
No. 2285 of 2024 before the High Court under Section 439
Cr.P.C. in the CBI case where he was taken into custody on
26.06.2024. On 05.07.2024, a learned Judge of the High Court
issued notice, fixing 17.07.2024 for arguments. On 17.07.2024,
arguments were heard on interim bail; thereafter, the case was
directed to be listed on 29.07.2024 at 03:00 PM. On 29.07.2024,
arguments were heard and the judgment was reserved. Finally,
the judgment was pronounced on 05.08.2024, the relevant
portion of which reads as under:
5. Though there is no quarrel about the
proposition that the District Courts and this
Court have concurrent jurisdiction, as has been
held in the Judgments relied on behalf of the
appellant, but at the same time it has been held
time and again by the Apex Court that the Party
must first approach the Court of first instance.
6. In the present case, it is more in the benefit
of the appellant, considering the complexity and
the web of the facts and the material on record,
to comprehensively determine the role of the
appellant in this alleged conspiracy to determine
if he is entitled to bail. It may also be noted that
when the Bail Application was filed before this
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Court, the chargesheet had not been filed.
However, in the changed circumstances, when
the chargesheet has already got filed before the
learned Special Judge, it would be in the benefit
of the appellant, to first approach the Court of
Sessions Judge.
7. In these circumstances, this Bail
Application is hereby disposed of with the liberty
to the appellant to approach the learned Special
Judge for regular bail.
34.1. After observing that it would be more to the benefit of
the appellant if the appellant approaches the learned Special
Judge first for bail more so when the chargesheet has been filed,
the High Court relegated the appellant to the forum of the
learned Special Judge though both the Court of the Special
Judge and the High Court have concurrent jurisdiction in the
matter.
35. If indeed the High Court thought of remanding the
appellant to the forum of the Court of Special Judge, it could
have done so at the threshold itself. After issuing notice, after
hearing the parties at length and after reserving the judgment for
about a week, the above order was passed by the High Court.
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Though couched in a language which appears to be in favour of
the appellant, in practical terms it has only resulted in
prolonging the incarceration of the appellant for a far more longer
period impacting his personal liberty.
36. In somewhat similar circumstances, this Court in
Kanumuri Raghurama Krishnam Raju Vs. State of A.P.6
, after
observing that jurisdiction of the trial court as well as of the High
Court under Section 439 Cr.P.C. is concurrent, held that merely
because the High Court was approached by the appellant without
approaching the trial court would not mean that the High Court
could not have considered the bail application of the appellant.
In the facts of that case, this Court opined that the High Court
ought to have considered the bail application of the appellant on
merit and decided the same. However, having regard to the fact
that much time had lapsed since passing of the order of the High
Court and there were subsequent medical reports of the
appellant, this Court did not relegate the appellant back to the
High Court but considered the bail application of the appellant
on merit herein itself. This Court held thus:
6 (2021) 13 SCC 822
25
14. The jurisdiction of the trial court as well as
the High Court under Section 439 of the Code of
Criminal Procedure, 1973 is concurrent and merely
because the High Court was approached by the
appellant without approaching the trial court
would not mean that the High Court could not
have considered the bail application of the
appellant. As such, in our view, the High Court
ought to have considered the bail application of the
appellant on merits and decided the same.
However, since the High Court has not considered
the matter on merits and much water has flown
since the passing of the order of the High Court, as
now there are two medical reports of the appellant,
one by the government hospital on the direction of
the High Court and the other by Army Hospital on
the directions of this Court, we deem it fit and
proper to consider the bail application of the
appellant on merits.
37. Mr. Raju, learned Additional Solicitor General of India,
while supporting the order of the High Court vehemently argued
that the appellant has to first approach the trial court for bail
though under Section 439 Cr.P.C. both the Special Court and the
High Court have concurrent jurisdiction. No special privilege
should be shown or granted to the appellant. I am afraid such a
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submission cannot be accepted. In this regard, I am in respectful
agreement with the view taken by this Court in Kanumuri
Raghurama Krishnam Raju. That apart, when the appellant has
been granted bail under the more stringent provisions of PMLA,
further detention of the appellant by the CBI in respect of the
same predicate offence has become wholly untenable. In such
circumstances, asking the appellant or relegating the appellant
to approach the trial court, then to the High Court and then to
this Court for a fresh round of bail proceedings in the CBI case
after he had already traversed the same route in the PMLA case
would be nothing but a case of procedure triumphing the cause
of justice. In this connection, it would be apt to refer to the
observations of this Court in the case of Manish Sisodia Vs. CBI,
Criminal Appeal No. 3296 of 2024, decided on 09.08.2024:
32. It could thus be seen that this Court had granted
liberty to the appellant to revive his prayer after filing of
the chargesheet. Now, relegating the appellant to again
approach the trial court and thereafter the High Court
and only thereafter this Court, in our view, would be
making him play a game of Snake and Ladder. The
trial court and the High Court have already taken a view
and in our view relegating the appellant again to the
trial court and the High Court would be an empty
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formality. In a matter pertaining to the life and liberty of
a citizen which is one of the most sacrosanct rights
guaranteed by the Constitution, a citizen cannot be
made to run from pillar to post.
37.1. Manish Sisodia is a coaccused in the same CBI case
and the ED case. His second bail application was rejected by the
trial court on 30.04.2024 after taking about three months time
to decide the same. When Sisodia moved the High Court for bail,
the same also came to be rejected on 21.05.2024. It was
thereafter that Manish Sisodia approached this Court in the
second round. In the hearing which took place on 04.06.2024,
the learned Solicitor General for India made a statement before
the Court that investigation would be concluded and final
complaint as well as chargesheet would be filed in both the ED
and CBI cases on or before 03.07.2024. On the basis of the above
statement of the learned Solicitor General, this Court disposed of
the two criminal appeals of Shri Manish Sisodia with liberty to
him to revive his prayer afresh after filing of final complaint and
chargesheet. When Shri Sisodia approached this Court for bail
after the complaint and the chargesheet were filed, Mr. Raju
learned Additional Solicitor General of India appearing for the ED
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as well as the CBI contended that Shri Sisodia should again
approach the trial court for regular bail as in the interregnum,
the complaint and the chargesheet were filed. Such submission
of Mr. Raju was rejected by this Court. Adverting to the earlier
order of this Court dated 04.05.2024, this Court in Manish
Sisodia observed as under:
33. ..It will be a travesty of justice to
construe that the carefully couched order
preserving the right of the appellant to revive
his prayer for grant of special leave against the
High Court order, to mean that he should be
relegated all the way down to the trial court.
The memorable adage, that procedure is a hand
maiden and not a mistress of justice rings
loudly in our ears.
38. This Court in Gudikanti Narasimhulu Vs. Public
Prosecutor7
, had highlighted that bail is not to be withheld as a
punishment. The requirement as to bail is merely to secure the
attendance of the prisoner at trial. This Court in Manish Sisodia
referred to and relied upon the aforesaid decision and reiterated
the salutary principle that bail is the rule and jail is the
exception. This Court has observed that even in straightforward
7 (1978) 1 SCC 240
29
open and shut cases, bail is not being granted by the trial courts
and by the High Courts. It has been held as under:
53. The Court further observed that, over a
period of time, the trial courts and the High Courts
have forgotten a very wellsettled principle of law
that bail is not to be withheld as a punishment.
From our experience, we can say that it appears
that the trial courts and the High Courts attempt
to play safe in matters of grant of bail. The
principle that bail is a rule and refusal is an
exception is, at times, followed in breach. On
account of nongrant of bail even in straight
forward open and shut cases, this Court is flooded
with huge number of bail petitions thereby adding
to the huge pendency. It is high time that the trial
courts and the High Courts should recognize the
principle that bail is rule and jail is exception.
39. Bail jurisprudence is a facet of a civilised criminal
justice system. An accused is innocent until proven guilty by a
competent court following the due process. Hence, there is
presumption of innocence. Therefore, this Court has been
reiterating again and again the salutary principle that bail is the
rule and jail is the exception. As such, the courts at all levels
30
must ensure that the process leading to and including the trial
does not end up becoming the punishment itself.
40. This Court has emphasized and reemphasized time
and again that personal liberty is sacrosanct. It is of utmost
importance that trial courts and the High Courts remain
adequately alert to the need to protect personal liberty which is a
cherished right under our Constitution.
41. That being the position and having regard to the
discussions made above, 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.