CBI Must Dispel The Notion Of It Being A Caged Parrot: Justice Ujjal Bhuyan Criticizes CBI While Granting Bail To Arvind Kejriwal

In a separate concurring opinion, Justice Ujjal Bhuyan of the Supreme Court sharply criticized the Central Bureau of Investigation (CBI) over the timing and necessity of its arrest of Arvind Kejriwal, raising concerns about the fairness and transparency of the agency's actions.

The Judge made the observations while granting bail to Kejriwal in the CBI case.

"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," Justice Bhuyan observed.

On the aspect of Kejriwal's arrest by CBI, its necessity, and timing, Justice Bhuyan noted, "It is evident that CBI did not feel the need and necessity to arrest the appellant from 17.08.2022 till 26.06.2024, i.e. for over 22 months."

Citing the 22-month delay between the start of the investigation and Kejriwal’s arrest, Justice Bhuyan questioned whether the CBI's move was an attempt to undermine the bail granted to Kejriwal in the Enforcement Directorate (ED) case, emphasizing that the agency’s conduct must not only be above board but also perceived as fair and just.

Justice Bhuyan highlighted that the CBI arrest was only to frustrate the bail granted to Kejriwal in ED case. "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 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," he said.

Highlighting that CBI is a premier investigating agency of the country, Justice Bhuyan stated it is in the 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. "This Court has time and again emphasized that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India. 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 high­handed and biased manner," he further stated.

On the aspect of the grounds of arrest, Justice Bhuyan opined, "Those would not satisfy the test of necessity to justify arrest of the appellant and now that the appellant is seeking bail post incarceration, those cannot also be the grounds to deny him bail. The respondent is definitely wrong when it says that because the appellant was evasive in his reply, because he was not cooperating with the investigation, therefore, he was rightly arrested and now should be continued in detention." He emphasized that it cannot be the proposition that only when an accused (Kejriwal) answers the questions put to him by the investigation agency in the manner in which the investigating agency would like him to answer, would it mean that he is cooperating with the investigation.

"Further, the respondent cannot justify arrest and continued detention citing evasive reply," Justice Bhuyan remarked. He also stated 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....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 on the part of the CBI to arrest the appellant when he was on the cusp of release in the ED case," he remarked.