A bench comprising Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna said "We would withdraw the protection given to Mr. Rajeev Kumar, former Commissioner of Police, Kolkata, vide our order dated February 05, 2019 restraining the CBI from arresting him and thereby, leave it open to the CBI to act in accordance with the law."
The court, however, granted seven days to Kumar to take appropriate legal remedies.
"At the same time, we direct that the interim order dated February 05, 2019 would continue for a period of seven days from the date of pronouncement of this order to enable Kumar to approach competent court for relief, if so advised," said the court.
The court observed that in the contempt proceedings it cannot determine whether or not Kumar should be arrested by the CBI for custodial interrogation.
The Central Bureau of Investigation (CBI) has accused Kumar of destruction of evidence in the scam, but the court noted that there is no FIR registered against Kumar.
"Under Sections 201/202 of the Indian Penal Code, but for which no First Information Report (FIR) has been registered, which contention is disputed by the CBI on the ground that the present investigation is connected with the FIRs registered in the chit-fund scam cases pending investigation," said the court.
The court noted that it attempted to resolve the controversy by ensuring interrogation of Kumar by the CBI, in view of the allegations levelled by the investigation agency, yet barred the CBI from arresting him. "This, however, has not worked out," it said.
The court observed that Kumar had fully cooperated with the CBI, a fact which can be verified from the video recording of the 40 hours of interrogation, on different dates in Shillong.
The court did not delve into the merits of the case, rather limited or confined itself "to the application filed by the CBI for modification of the February 5 order, by which court restrained them from arresting Kumar."
The West Bengal government told the court that laptop and mobile phones was examined by the Serious Fraud Investigation Unit, Enforcement Directorate and other agencies, which did not find them to be relevant and incriminating, and therefore, returned.
"Besides, the data downloaded from mobile and laptop was not compromised and is available with the agencies," the government told the court, although the CBI alleges that Kumar has played a key role in the destruction of the electronic evidence.
Earlier, during the arguments, senior counsel Indira Jaising, appearing for Kumar, argued that the CBI was being vindictive and had cooked up a false case against the police officer.
To support her argument, she referred to Kumar's unblemished career and said he was a decorated officer and never had any doubts cast on his integrity. He was awarded the President's Medal in 2015, after due diligence and scrutiny by the Home Ministry to select a candidate who had not been implicated in a case or departmental inquiry, she added.
Jaising said till date, the CBI had been unable to establish Kumar's criminal intent in suppressing evidence in the investigation.
"And yet they are seeking his custodial interrogation. There is a media trial going on," she said.
She claimed that there was a reason why the CBI singled out Kumar in the case.
"(Then interim) CBI Director Nageshwar Rao actually set the investigation agency after Kumar, because there is an FIR against Rao's wife in West Bengal," she said. Recalling the February incident when the CBI went to question Kumar and the entire episode took a political turn, Jaising said the agency tried to raid Kumar's house in his absence.
"His wife, a public servant, was in the house. They levelled false charges that he has hidden evidence at his residence," she argued.
She also contended that the CBI was deliberately going after Kumar, but never questioned Arnab Ghosh, the then Director General of Police (DGP) who was also part of the Special Investigation Team probing the scam.
Jaising also said no evidence of value was found on the electronic devices that were seized in the investigation into the scam. Appearing for the CBI, Solicitor General Tushar Mehta had insisted that the investigating agency was not hounding Kumar.
"We asked them a simple question regarding the FSL report of the electronic devices seized during the investigation, but they did not give us any report," he said. He also said it was impossible to establish the authenticity of electronic data seized during the scam in the absence of a forensic science laboratory (FSL) report.
Insisting that the FSL report was crucial to solve the case, he said "We have been demanding it since the case was handed over to the CBI. How do we know that mobiles, laptops, pen drives, etc, have not been compromised?"
At this, Jaising said the data was seized by different agencies -- the Serious Fraud Investigation Office (SFIO), the Assam Police and the Enforcement Directorate -- and not by the West Bengal Police alone.