Kejriwal walks out of Tihar jail

New Delhi: After remaining in Tihar Jail for almost six months, Delhi chief minister Arvind Kejriwal walked out of the high-security prison on Friday hours after he was granted bail by the Supreme Court in a corruption case linked to the excise policy “scam” being probed by the CBI.

While Justice Ujjal Bhuyan came down heavily on the CBI, saying the Central investigative agency needed to dispel the notion of being a “caged parrot” and questioned the timing of Mr Kejriwal's arrest, Justice Surya Kant, however, did not find any procedural fault on the CBI’s part over the CM’s arrest.

In a separate verdict, Justice Bhuyan said the CBI’s aim was to frustrate the grant of bail to Mr Kejriwal in a money-laundering case linked to the same excise scam. The top court had earlier granted bail to the Delhi CM in the money-laundering case being pursued by the Enforcement Directorate, but he could not be released from jail as he had been arrested by the CBI on corruption charges for the same scam.

Addressing a large number of his supporters who had gathered outside Tihar Jail, Mr Kejriwal asserted that his fight against “anti-national forces who are working to weaken the country on communal lines” would continue till his last breath. “They put me in jail to break my morale. But my morale is higher than ever. Prison cannot weaken me”, he said.

While granting bail to Mr Kejriwal, the top court held that “perception matters in a democracy” and that the investigative agencies must be “above board”. In the bail order, the apex court made it clear that Mr Kejriwal should not comment on the case or visit the chief minister’s office or the Delhi Secretariat. The court also restrained him from signing any official files, besides furnishing a bail bond of Rs 10 lakhs, and two sureties of like amount. The same conditions had been imposed by the apex court while granting him bail in the money-laundering case.

In 2013, the apex court had made a stinging observation that the CBI was a “caged parrot”. The same comment again came back to haunt the CBI on Friday when the Supreme Court said it was “imperative” for the probe agency to have the perception of being an “uncaged parrot”. A top court bench headed by Justice R.M. Lodha (now retired), while hearing the infamous coal scam matter in May 2013, had dubbed the CBI as a “caged parrot speaking in the master’s voice”.

In his separate but concurring 31-page verdict, Justice Bhuyan on Friday said that in a functional democracy governed by the rule of law, perception matters and, like Caesar’s wife, an investigative agency must be “above board”.

Justice Bhuyan said: “Not so long ago, this court had castigated the CBI, comparing it to a caged parrot. It is imperative that the CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot.”

Justice Bhuyan said the CBI was a premier investigating agency of the country and it was in the public interest that it 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. This court has time and again emphasised that fair investigation is a fundamental right of an accused person under Articles 20 and 21 of the Constitution of India,” he said.

Justice Bhuyan said the investigation must not only be fair but must be seen to be so, and every effort must be made to remove any perception that probe was not carried out fairly and that any arrest was made in a high-handed and biased manner.

Justice Kant, however, said: “The appellant’s (Mr Kejriwal’s) arrest by the CBI was thus entirely permissible, in light of the trial court’s order dated 25.06.2024… Having considered the CBI’s compliance with Section 41A of the CrPC… we are thus of the view that the appellant’s (Mr Kejriwal) arrest does not suffer with any procedural infirmity. Consequently, the plea regarding non-compliance of these provisions, merits rejection. Ordered accordingly.”

In recent times, the Opposition parties have been severely criticising Central probe agencies like the CBI and the ED for targeting their leaders, allegedly at the behest of the BJP-led Union government.

Granting relief to the chief minister, the top rejected the CBI’s submission that Mr Kejriwal should be sent to the trial court with his bail plea. The top court said generally, the trial court should consider the prayer seeking bail once a chargesheet is filed as the material that an investigative authority may have been able to procure would undoubtedly facilitate that court to form a prima facie opinion on the gravity of the offence and the degree of involvement of the accused.

The bench, however, said there can be no straitjacket formula which enumerates that every case concerning the consideration of bail should depend upon the filing of a chargesheet. Each case ought to be assessed on its own merits, recognising that no one-size-fits-all formula exists for determining bail, it said.

The top court said an undertrial should, ordinarily, first move the trial court for bail, as this process not only provides the accused an opportunity for initial relief but also allows the high court to serve as a secondary avenue if the trial court denies bail for inadequate reasons.

“However, superior courts should adhere to this procedural recourse from the outset. If an accused approaches the high court directly without first seeking relief from the trial court, it is generally appropriate for the high court to redirect them to the trial court at the threshold.

“Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the trial court at a later stage. Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities,” Justice Kant said in his 27-page order.

Additional solicitor-general S.V. Raju, appearing for the CBI, had argued that Mr Kejriwal should be sent to the trial court as he approached the high court directly for bail. He urged that Mr Kejriwal should not be granted any special treatment merely because of the position of power he holds or his political stature. He also argued that Mr Kejriwal deserves to be treated like any other undertrial and, hence, he must first approach the trial court for bail.

The apex court said the issue was more or less academic in the instant case as the high court did not relegate Mr Kejriwal to the trial court at the preliminary stage.

“Since notice was issued and the parties were apparently heard on merits by the high court, we do not deem it necessary at this stage to relegate the appellant to the trial court even though filing of a chargesheet is a change in the circumstances,” Justice Kant said.

Justice Bhuyan said: “After issuing notice, after hearing the parties at length and after reserving the judgment for about a week, the above order was passed by the high court. Though couched in language which appears to be in favour of the appellant, in practical terms it has only resulted in prolonging the incarceration of the appellant for a far longer period, impacting his personal liberty.”