New Delhi: ‘The Central Investigating Agency (CBI)’ dispel the notion of it being a caged parrot’, observed the Supreme Court while granting bail to AAP Supremo and Delhi Chief Minister Arvind Kejriwal in the excise policy case on Friday. The Apex Court of the country has pulled the ‘premier’ investigating agency for its action as it raises a serious question mark on the timing of the arrest. Rather, on the arrest itself.
Notably, the AAP Supremo was arrested by the Enforcement Directorate (ED) on March 21 under the Prevention of Money Laundering Act (PMLA) in connection with the excise policy case. From March 2024 to September 2024, he was incarcerated for almost six months. On June 20, 2024, the Delhi Chief Minister was granted regular bail by the Trial Court. However, before the bail order could be received, the ED obtained a stay on his release from the Delhi High Court. On June 26, the Central Bureau of Investigation (CBI) formally arrested him in the same case. Although the Supreme Court granted him interim bail in the ED’s case on July 12, he remained in judicial custody in connection with the CBI’s corruption case until today.
While granting bail to AAP National Convenor and Delhi CM Arvind Kejriwal, the Supreme Court observed that CBI is a premier investigating agency of the country. It is in the public interest that the CBI must not only be above board but must also seem to be so. The rule of law, which is a basic feature of our constitutional republic, mandates that investigation must be fair, transparent and judicious.
“Investigation must not only be fair but must 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 highhanded and biased manner,” noted the Apex Court.
The Apex Court further noted that 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,” the Court stated.
Questioning the CBI’s arrest of the Delhi CM, the Supreme Court stated, “In so far arrest by the CBI is concerned, it raises more questions than it seeks to answer. Till the arrest of the appellant by the ED on 21.03.2024, the CBI did not feel the necessity to arrest the appellant though it had interrogated him about a year back on 16.04.2023.
“It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024. Even on the date of his arrest by the CBI on 26.06.2024, the appellant was not named as an accused by the CBI. Only in the last chargesheet filed by the CBI on 29.07.2024, the appellant has been named as an accused,” the Court mentions in its order.
The Top Court of the country further states that it is evident that the CBI did not feel the need and necessity to arrest the appellant for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody.
“Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather than on the arrest itself. For 22 months, CBI does not arrest the appellant but after the learned 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 observed.
The Supreme Court observed that 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.
“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,” stated Justice Ujjal Bhuyan.
Questioning the manner of the CBI’s investigation, the Court emphasized that it cannot be the proposition that only when an accused answers the questions put to him by the investigation agency in the manner in which the investigating agency would like the accused to answer, would mean that the accused is cooperating with the investigation. Further, the respondent cannot justify the arrest and continued detention citing evasive reply.
“An accused has the right to remain silent; he cannot be compelled to make inculpatory statements against himself. No adverse inference can be drawn from the silence of the accused. If this is the position, then the very grounds given for arrest of the appellant would be wholly untenable,” noted the Apex Court.
Granting bail to the AAP Supremo, the Top Court observed, “On such grounds, 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.”
Impugning the Delhi High Court’s order in connection with the regular bail sought by the AAP Chief, the Supreme Court stated 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.
“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. This Court has emphasized and re-emphasized 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,” observed the Top Court while granting Bail to Arvind Kejriwal.
