New Delhi: Observing that Arvind Kejriwal’s arrest by the CBI in the excise policy case was unjustified, Supreme Court judge Justice Ujjal Bhuyan on Friday slammed the agency, and said it must dispel the notion of being a caged parrot.
A bench of justices Surya Kant and Ujjal Bhuyan granted him bail in the case.
Writing a separate concurring judgement granting bail to the AAP supremo, Justice Bhuyan questioned the timing of Kejriwal’s arrest by the CBI and said its aim was to frustrate the grant of bail to him in the Enforcement Directorate case.
Justice Surya Kant did not find any illegality in the CBI arrest.
Justice Bhuyan wrote in his judgment that the CBI is a premier investigating agency and it must not only be above board, but also be seen 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 said.
“In a functional democracy governed by the rule of law, perception matters. Like Caesar’s wife, an investigating agency must be above board. Not long ago, this court has castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispels the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot,” he said.
Noting that CBI case was registered on August 17, 2022, Justice Bhuyan said till the arrest of the Kejriwal by the ED on March 21, the CBI did not feel the necessity to arrest Kejrwal though it had interrogated him about a year back — on April 16, 2023.
“It is evident that CBI did not feel the need and necessity to arrest the appellant from August 17, 2022 till June 26, 2024 i.e. for over 22 months. It was only after the 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 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,” Justice Bhuyan said.
In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to Kejriwal in the ED case, he added.
The top court judge said when Kejriwal has been granted bail under the more stringent provisions of the Prevention of Money Laundering Act, further detention by the CBI in respect of the same predicate offense has become wholly untenable.
“When the CBI did not feel the necessity to arrest the appellant for 22 long months, I fail to understand the great hurry and urgency to arrest the appellant when he was on the cusp of release in the ED case,” Justice Bhuyan said.
The judge said CBI is definitely wrong in arresting Kejriwal on the ground that he was evasive in his reply and not cooperating with the investigation.
“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 arrest and continued detention citing evasive reply,” he said.
Justice Bhuyan said an accused has the right to remain silent and 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. 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,” he said.
Justice Bhuyan said he has serious reservations on the conditions imposed in the ED case on Kejriwal which bar him from entering the CM’s office and signing files.
“I am not commenting on conditions imposed on Kejriwal due to judicial discipline as it was in separate ED case,” he added.
The top court granted bail to Kejriwal in the corruption case, saying prolonged incarceration amounts to unjust deprivation of liberty.
The excise policy was scrapped in 2022 after the Delhi lieutenant governor ordered a CBI investigation into alleged irregularities and corruption involving its formulation and execution.
According to the CBI and the ED, irregularities were committed while modifying the excise policy and undue favours extended to licence holders.
