NEW DELHI: The Supreme Court has made strong observations against the CBI over the need and timing of arrest of Delhi Chief Minister Arvind Kejriwal in the liquor policy scam case, saying like the Ceaser's wife, the premier investigating agency must be above board and dispel the notion of being a "caged parrot".
In his separate judgment allowing bail to him, Justice Ujjal Bhuyan felt the CBI's arrest of Kejriwal on June 26 just after his bail in the money laundering case raised more questions than it sought to answer.
"In a functional democracy governed by the rule of law, perception matters. Like Caesar’s wife, an investigating agency must be above board. Not so long ago, this court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot," he said.
The court noted the CBI did not feel the necessity to arrest Kejriwal for 22 long months, even it questioned him in case on April 16, 2023 after registration of the case on August 17, 2022.
"I fail to understand the great hurry and urgency on the part of the CBI to arrest the appellant when he was on the cusp of release in the ED case," he said.
In his separate judgment, Justice Bhuyan said it was only after the Special Judge granted regular bail to him in the ED case on June 20, 2024 that the CBI activated its machinery and took him into custody.
"Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself," he said.
Justice Bhuyan noted for 22 months, CBI does not arrest him but after the Special Judge grants regular bail to the appellant in the ED case, CBI seeks his custody.
"In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case," the court said.
Justice Bhuyan also said the CBI is definitely wrong when it says that because Kejriwal was evasive in his reply, was not cooperating with the investigation, therefore, he was rightly arrested and now should be continued in detention.
The CBI cannot justify arrest and continued detention citing evasive reply, the court said.
"We should not forget the cardinal principle under Article 20(3) of the Constitution that no person accused of an offence shall be compelled tobe a witness against himself," the court said.
"It would be a travesty of justice to keep the appellant in further detention in the CBI case, more so, when he has already been granted bail on the same set of allegations under the more stringent provisions of PMLA," the bench added.
The court emphasised the power to arrest is one thing but the need to arrest is altogether a different thing. Just because an investigating agency has the power to arrest, it does not necessarily mean that it should arrest such a person.
"CBI is a premier investigating agency of the country. It is in public interest that CBI must not only be above board but must also be seem to be so. Rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious," he wrote.
Justice Bhuyan said this court has time and again emphasised that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution.
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"Investigation must not only be fair but must be seem to be so. Every effort must be made to remove any perception that investigation was not carried out fairly and that the arrest was made in a high¬handed and biased manner," he wrote.
Justice Bhuyan said the deprivation of liberty even for a single day is too much.
The judge did not accept the CBI's contention that Kejriwal should first approach the trial court for bail, saying that when he has been granted bail under more stringent provisions of PMLA, further detention by CBI is wholly untenable.
“Bail jurisprudence is a facet of the civilised criminal justice system. An accused is innocent until proven guilty. This court has been reiterating time and again, the salutary principle that bail is the rule and jail is the exception. Courts at all levels must ensure the process leading to and including the trial does not become punishment itself”, said Justice Bhuyan.
He said the arrest of Kejriwal was unjustified and his continued incarceration in the CBI case has become untenable.
