For a fair probe: On the Kejriwal bail order and CBI conduct
Kejriwal bail order is a reminder to CBI to dispel perception of bias
A two-member Bench of the Supreme Court that granted bail to Delhi Chief Minister Arvind Kejriwal in the Delhi excise policy case was divided on the legality of his arrest by the CBI on corruption charges soon after he was given regular bail in connection with money-laundering charges. After the benefit was given to the co-accused, including Delhi’s Deputy Chief Minister Manish Sisodia and Bharat Rashtra Samithi leader K. Kavitha, under the more stringent Prevention of Money Laundering Act, it was only a matter of time before Mr. Kejriwal was also released on conditional bail. Justice Surya Kant and Justice Ujjal Bhuyan were one in holding that he was entitled to bail and that there was no need, as the CBI wanted, to send him back to the trial court. However, while Justice Kant found no violation of procedure in his arrest, as the CBI had approached the trial court for permission to question Mr. Kejriwal and, later on, to arrest him, Justice Bhuyan bluntly observed that the timing of his arrest was “suspect”. Noting that the CBI did not feel the need to arrest him for 22 months, he questioned the urgency to arrest him “when he was on the cusp of release in the ED (Enforcement Directorate) case”. Justice Bhuyan also recalled precedents that say the existence of the power to arrest did not necessarily mean that there was a need to arrest.
Justice Bhuyan’s observations also touched upon the CBI’s reputation. Few would disagree with the view that the CBI should strive to dispel the notion that it is “a caged parrot”, and that its investigation should not give the impression that it probes cases and arrests people in a high-handed and biased manner. The judge has rightly emphasised the right of the accused to remain silent, and decried the propensity among investigating agencies to cite “non-cooperation” or “evasive answers” during questioning as a ground to keep suspects in prison. If the order of bail in the Manish Sisodia case was a reminder to all judges that bail cannot be denied as a matter of punishment, Justice Bhuyan’s separate judgment will be notable for its reminder to the CBI about its obligation to keep its investigations fair. There is also some subtle criticism of the Delhi High Court’s order rejecting bail to Mr. Kejriwal on the ground that he ought to approach the trial court first. Both judges noted that the High Court should have considered bail on merits, if it had not asked the petitioner at the threshold itself to approach the lower court, with one of them observing that the delay in issuing notice and hearing the matter at length resulted only in prolonging his incarceration.