In the last 10 years, we witnessed the
CBI investigating major scams and cases, involving prominent politicians. The agency earned a 'caged parrot' epithet from the Supreme Court in May 2013 for allowing the UPA government to vet its probe status report to the SC in the coal scam, in which the government itself was in the dock.
When
P Chidambaram was home minister, the SC in Rajendran Chingaravelu vs RK Mishra [2010 (1) SCC 457] case had disapproved the tendency of investigating agencies to subject the accused to media trial by selectively leaking unsubstantiated probe details.
It had said, "There is a growing tendency among investigating officers to inform the media, even before completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Premature disclosures or 'leakage' to media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law." Chidambaram must now be experiencing the truth behind these observations
as he languishes in judicial custody in the
INX Media case
.
Sadly, investigating agencies did not abandon their old practice following the SC judgment. In 2010, the CBI took interest in then Gujarat minister of state for home
Amit Shah in the Sohrabuddin fake encounter case after the SC transferred the probe from Gujarat police to the central agency.
The CBI arrested Shah on July 25, 2010. On his arrest, Shah had said that charges against him were "fabricated, politically motivated and were on the instructions of the Congress government" at the Centre, which are exactly the same lines now parroted by Chidambaram, his son and big lawyers appearing for him.
Defending the CBI action, Congress spokesperson AM Singhvi had said, "Do you think the CBI is full of a bunch of fools who will risk their entire career by making false allegations and non-existing charges, which are going to be examined by the Supreme Court?"
The Gujarat HC granted bail to Shah on October 29, 2010. The CBI immediately rushed to the SC seeking cancellation of bail. Shah volunteered to stay away from Gujarat. The SC agreed and continued his bail with a caveat that he would mark his attendance before the CBI once every fortnight.
After filing a chargesheet on November 25, 2010, the CBI moved the SC in January 2011 seeking transfer of trial outside Gujarat, preferably to Mumbai. A bench headed by Justice Aftab Alam recorded what the CBI said in its application, "Amit Shah presided over an extortion racket. In his capacity as minister for home, he was in a position to place his henchmen, top ranking policemen at positions where they would sub-serve and safeguard his interest."
In its September 27, 2012, order, the Justice Alam-headed bench transferred the trial to Mumbai. It rejected the CBI's plea for cancellation of Shah's bail with a sarcastic order, "We are not inclined to cancel the bail granted to Amit Shah about two years ago. Had it been an application for grant of bail to Amit Shah, it is hard to say what view the court might have taken."
However, the SC clarified that whether Shah was to be sent to jail in "judicial custody or granted bail" in the Tulsiram Prajapati fake encounter case would be decided without taking into account grant of bail in the Sohrabuddin case.
The CBI had filed a separate FIR in the Tulsiram Prajapati case after strenuously claiming before the SC that Prajapati's murder was part and parcel of the
Sohrabuddin encounter case
. The SC rejected it and quashed the separate FIR in Prajapati case. A Mumbai trial court discharged Shah from the Sohrabuddin-Prajapati case in December 2014.
In five years, the tables appear to have turned and the same CBI is now going after then home minister Chidambaram in an alleged corruption case relating to grant of foreign investment clearance to INX Media.
Judges of the SC and HCs take little time to discern merits of commoners' anticipatory bail petitions. Strangely, when such pre-arrest bail pleas are filed by VIPs, renowned lawyers weave legal complexities, allege violation of right to life and liberty while accusing probe agencies of wreaking political vendetta.
Judicial treatment to anticipatory bail plea of Chidambaram is a classic example of this. A Delhi HC judge heard arguments for anticipatory bail for days and reserved judgment in January while protecting Chidambaram from arrest. He took six months to analyse the arguments and rule that Chidambaram did not deserve protection from arrest.
Senior lawyers moved the SC immediately. It was mentioned for urgent hearing before the CJI, who through court officials suggested mentioning before Justice NV Ramana the next day.
On August 21 morning, Justice Ramana ordered that the petition be placed before the CJI for orders on listing. Hours later, the matter was mentioned again before Justice Ramana, who was informed by court officials that defects in the petition were cured a few minutes before 2 pm and hence could not be listed. In the evening, the CJI ordered it to be listed on August 23. The CBI arrested him on August 21, not without enacting a drama before TV cameras.
The counsel cried foul accusing the SC of not giving importance to Chidambaram's apprehension of his right to liberty being violated by refusing to hear his plea on August 22. A bench headed by Justice R Banumathi gave more than adequate time to lawyers who argued an anticipatory bail plea for four days. Other bail-seeking litigants would be a lot satisfied if the SC granted them a fraction of the time it spent on Chidambaram's plea.
Yet, it was the CBI which found itself in the dock. It took a lot of accusations in the SC and outside from Congress, whose government was instrumental in getting it the "caged parrot" moniker. Regimes will come and go. Political vindictiveness will continue to play out. But investigating agencies would do well to read Joginder Kumar vs State of UP [(1994) 4 SCC 260], in which the SC had said, "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.
"The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations; weighing and balancing the rights, liberties and privileges of single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding what comes first - the criminal or society, the law violator or the abider."
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