Will Arvind Kejriwal have to go back to prison?

On May 10, after a period of 51 days, Delhi’s Chief Minister, Arvind Kejriwal who was remanded to jail in the liquor scam case, finally got interim bail. The Supreme Court observed that since he was an elected representative and the elections are the ‘life force of a democracy’, there were justifiable grounds to order his temporary release from jail. Kejriwal will have to abide by the bail conditions meted out by the Supreme Court and surrender to custody on June 1st. 

In this Weekly, let’s understand what interim bail is, when can it be granted and how is it different from regular bail? 

What is interim bail? 

When the police arrest an accused, the accused can seek release from custody while the final verdict is pending. This is known as the right to bail. Unless revoked by an order of court, bail allows the accused to remain outside jail. However, the grant of bail can involve a long process involving submission of certain documents and multiple hearings. This can adversely affect the liberty of the accused. In certain cases, their release might be time sensitive, such as in cases of medical needs, bereavement, family occasions, examinations etc. In such cases, the court can order a temporary release from custody for a fixed period of time and subject to certain conditions. This is called an interim bail. 

Is interim bail a legal right?

While Section(s) 437 and 439 of the Code of Criminal Procedure (CrPC) list the provisions for bail, there is no overt mention of interim bail. However, in the 2009 case of Sukhwant Singh vs State of Punjab, the Supreme Court of India held that the power to grant interim bail is a part of  the power of the Courts to grant bail. It is also an established law that the right to seek bail is a fundamental right guaranteed to every citizen. Accordingly, the right to interim bail is also a fundamental right but it is subject to reasonable restrictions and is the prerogative of the court. 

What are the conditions in interim bail?

There are no legally prescribed conditions for an interim bail order. The general principle is that the conditions imposed must serve the purpose of binding the accused to the due process of law. These include a fixed time of surrender, certain amount paid as surety, embargo on engaging in certain activities etc. In Kejriwal’s case, the court has debarred him from resuming his duties as the Chief Minister and limited the relief only to participating in the election campaigns. 

How can one apply for interim bail?

The process for application of interim bail is the same as that of regular bail. It can be sought in both bailable and non bailable offenses. The Court, in its own discretion, can even decide to grant an interim bail while hearing a regular bail application. 

What are the implications of an interim bail?

The legal consequence of an interim bail is the same as that of regular bail, except the former is for a shorter and fixed period of time. However, like regular bail, under section 439(2) of the CrPC, the Court may cancel the interim bail order and mandate the immediate arrest of the accused, if it feels necessary.

Why is this order significant?

Kejriwal’s interim bail order may only have allowed him to remain outside the custody for only three weeks, but it has established a new ground for interim bail. While the court held that this is no exception since it is a constitutional right of every citizen to seek the judicial review of one’s arrest, the grant of bail relying on the right of a public servant to participate in democratic elections lays down the foundation for assessing granting of interim bail on public interest.