New Delhi: Supreme Court judge Justice Ujjal Bhuyan on Friday made scathing observations against the Central Bureau of Investigation (CBI) saying that grounds of arrest do not satisfy the test of necessity to justify the arrest of Delhi Chief Minister Arvind Kejriwal in the Delhi excise policy case, and it is imperative CBI must dispel the notion of it being a caged parrot.
“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.
A bench of Justices Surya Kant and Ujjal Bhuyan granted the relief to Kejriwal on furnishing a bail bond of Rs 10 lakh, and two sureties of like amount. Though the two judges’ concurred on granting bail to Kejriwal, they wrote separate judgments.
Justice Bhuyan said his point of view on the necessity and timing of the arrest of Kejriwal compelled him to author a separate judgment. He questioned the CBI’s decision to arrest Kejriwal after a 22-month-long gap, since the registration of the FIR in the case back in August 2022.
Justice Bhuyan noted that the CBI case was registered on August 17, 2022. "Till the arrest of the appellant by the ED on March 21, 2024, the CBI did not feel the necessity to arrest the appellant though it had interrogated him about a year back on April 16, 2023," his statement said.
Justice Bhuyan said that it appeared that only after the learned Special Judge granted regular bail to the appellant in the ED case on June 20, 2024 (which was stayed by the High Court on June 21, 2024, on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on June 26, 2024.
"Thus, it is evident that CBI did not feel the need and necessity to arrest the appellant from August 17, 2022 till June 26, 2024. The grounds of arrest do not satisfy the test of necessity to justify the arrest of the appellant," he added.
The justice also pointed out that it cannot be the proposition that only when an accused answers questions put to him by an investigating agency in the manner in which the agency would like the accused to answer would mean the accused is cooperating with the investigation.
He said an accused has the right to remain silent and he cannot be compelled to make self-incriminating statements and no adverse inference can be drawn from the silence of the accused. “If this is the position, then the very grounds given for the 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, more so when he has already been granted bail on the same set of allegations under the more stringent provisions of PMLA”, said Justice Bhuyan, adding that investigation should not be used as a tool of harassment.
Justice Bhuyan said the deprivation of liberty even for a single day is too much. “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”.
During the hearing, CBI supported the high court order which denied bail to Kejriwal and insisted that he should first approach the trial court for bail. Justice Bhuyan did not accept this contention by CBI, 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. Justice Bhuyan noted that in the ED case, this court has imposed several terms and conditions, and he has serious reservations about two conditions, restricting Kejriwal from entering the CM’s office and also not being allowed to sign files, “having regard for judicial discipline, I would refrain from expressing further view thereon at this stage. Since those conditions have been imposed in a separate ED case by a two-judge bench of this court”.
He said the CBI is the premier investigating agency of the country and it is in the public interest that the agency must not only be above board but also be viewed as so. “Every effort must be made to remove any perception that the investigation was not carried out fairly and the arrest was made in a high-handed and biased manner.
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