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A two-judge Bench of the Supreme Court that granted bail to Delhi Chief Minister Arvind Kejriwal in the Delhi excise policy case was split on the legality of his arrest by the CBI on corruption charges shortly after he received regular bail in a money-laundering case.
Given that co-accused, including Delhi’s Deputy Chief Minister Manish Sisodia and Bharat Rashtra Samithi leader K. Kavitha, had received bail under the stricter Prevention of Money Laundering Act, it was anticipated that Mr. Kejriwal would also be granted conditional bail. Justice Surya Kant and Justice Ujjal Bhuyan agreed that he was entitled to bail and that the CBI’s request to return him to the trial court was unnecessary.
However, while Justice Kant saw no procedural error in his arrest, noting that the CBI had sought trial court approval for questioning and later for arrest, Justice Bhuyan criticized the timing of the arrest as “suspicious”. Pointing out that the CBI had not deemed it necessary to arrest him for 22 months, he questioned the sudden urgency to arrest him “just as he was about to be released in the ED (Enforcement Directorate) case”. Justice Bhuyan also referenced precedents that indicate having the power to arrest does not imply a need to do so.
His comments also touched on the CBI’s reputation, emphasizing the need for the agency to counter perceptions of being “a caged parrot” and to conduct investigations without appearing high-handed or biased. The judge rightly highlighted the accused's right to remain silent and criticized the tendency of investigative agencies to use “non-cooperation” or “evasive answers” as reasons to keep suspects imprisoned.
While the bail granted to Manish Sisodia underscored that bail should not be used as a punitive measure, Justice Bhuyan’s separate judgment serves as a reminder to the CBI about its duty to ensure fair investigations.
There was also subtle criticism of the Delhi High Court’s decision to deny bail to Mr. Kejriwal, arguing that the High Court should have considered the bail application on its merits rather than directing him to approach the lower court first. Both judges noted that the delay in issuing notice and addressing the case at length only served to extend his detention.