Supreme Court: The Bench comprising of R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ., addressed the appeal filed by the former Finance Minister, P. Chidambaram assailing the final order passed by Delhi High Court wherein regular bail to the appellant was declined.
Genesis of the Case [Brief Facts]
Following is the chain of events that occurred and led to the present Appeal:
FIR registered by CBI under Section 120-B read with Section 420 IPC and Sections 8 and 13(2) read with Section 13 (1) (d) of PC Act against some unknown and known suspects with allegations that INX Media (P) Ltd. sought approval of Foreign Investment Promotion Board (FIPB) for permission to issue by way of preferential allotment, certain equity and convertible, non-cumulative, redeemable preference shares for engaging in the business of creating, operating, managing and broadcasting of bouquet of television channels.
Company also sought approval to make downstream financial investment. FIPB recommended the proposal of INX Media for consideration and approval of the Finance Minister, however, Board did not approve of the same.
Later, in a press release issued by FIPB Unit, the details of FDI/NRI inflow against INX Media was shown as Rs 4.62 Crores in the release. Contrary to the approval of FIPB, INX Media (P) Ltd. made a downstream investment to the extent of 26% capital of INX News and generated more than Rs 305 Crores against the approved foreign inflow of Rs 4.62 Crores.
FIPB Unit sought clarifications from INX Media Limited. Further INX Media in order to avoid punitive action entered into a criminal conspiracy with Karti Chidambaram –Accused 3 in the FIR.
Accused 3 is alleged to have exercised his influence over the officials of FIPB unit which led to showing undue favour to INX News (P) Ltd. Thereafter deliberately concealing the investment received in INX Media (P) Ltd., INX News (P) Ltd. again approached the FIPB Unit and sought permission for downstream investment. The stated proposal was considered by the officials of the Ministry of Finance and approved by the then Finance Minister.
Karti Chidambaram in lieu of services rendered to INX Group, received consideration in the form of payments.
Appellant who was the then Finance Minister has not been named in the said FIR.
Respondent Directorate of Enforcement registered a case (ECIR case) on the basis of the above-mentioned FIR under Section 3 of Prevention of Money Laundering Act, 2002 punishable under Section 4against the accused mentioned in the FIR. Appellant’s name was not named in this case as well.
Appellant apprehending his arrest filed an application before the Delhi High Court seeking grant of anticipatory bail. Further, the Delhi High Court extended the interim protection of the appellant.
Appellant then approached the Supreme Court wherein while dismissing his appeal, Court concluded that grant of anticipatory bail will hamper the investigation.
While above circumstances and chain of events were happening, appellant was now arrested in the CBI case, which has been mentioned earlier.
Later, on 16-10-2019 appellant was arrested in the ECIR case on the grounds that payment of approximately Rs 3 crores was made at the appellant’s instance to the companies controlled by Karti Chidambaram on account of FIPB work done for INX Group.
Appellant further moved his application with respect to surrender before the Trial Court in the ECIR Case, for which again his application was rejected on behalf of the respondent Directorate that t was not willing to arrest the appellant at that particular stage.
Thereafter, Respondent-Directorate moved an application under Section 267 CrPC wherein it sought issuance of production warrant against the appellant for the purpose of arrest and remand.
On 23-10-2019, appellant moved a regular bail application before the High Court, wherein he stated that he merely accorded approval to the unanimous recommendation made by the FIPB, anyone familiar with the working of FIPB would know that no single officer can take a decision on any proposal. Therefore, it is preposterous to allege that any person could have influenced any official of FIPB.
Adding to the above, he submitted that ECIR case is a verbatim copy of the FIR and thus the Special Judge erred in granting remand of the appellant in the ECIR case since the offences allegedly committed in both the cases arise out of the same occurrence and have been committed in the course of the same transaction. Special Court erred in not accepting the surrender application.
Further, High Court concluded that prima facie allegations are serious in nature and appellant ahs played a key role in the present case. On the basis of these observations, High Court dismissed the bail application.
Senior Counsel, Kapil Sibal and Dr Abhishek Manu Singhvi represented the appellant.
Senior Counsels representing the appellant submitted that:
- High Court erred in law in going into and rendering findings on merits of the case in order to deny bail to the appellant despite the settled position of law that merits of a case ought not to be gone into at the time of adjudication of a bail application.
- High Court erred in accepting at face value the allegations made on merits of the case in the counter affidavit filed by the respondent and converting such allegations verbatim into findings by the Court and declining to grant bail to the appellant solely on the basis of said findings.
- No material linking the appellant directly or indirectly has been placed on record before the High Court.
- All the other ECIR case accused’s have either been granted bail or have not been arrested.
- Appellant’s health continues to deteriorate and with the onset of the cold weather, the appellant will become more vulnerable.
“Gravity of an offence is to be determined from the severity of the prescribed punishment.”
“Basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.”
Court, had disapproved of the manner in which the learned Judge of the High Court in the said case had verbatim quoted a note produced by the respondent. If that be the position, in the instant case, the learned Judge while adverting to the materials, ought not to have recorded a finding based on the material produced before him.
On perusal of the documents submitted by the respondent, Court noted that statements of persons concerned have been recorded and the details collected have been collated.
It has been further noted by the Court that the appellant has not been named as one of the accused in the ECIR but the allegation while being made against the co-accused it is indicated that the appellant who was the Finance Minister at that point, aided the illegal transactions since of the co-accused (Karti Chidambaram) is the son of the appellant. Thus, the complicity of the appellant will have to be established in the trial and if convicted, the appellant will undergo sentence.
Thus, considering and noting the age and health of the appellant, Court stated that the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence, therefore he is entitled to be granted bail.
Gist of the Order to be noted here:
- Delhi High Court’s Judgment is set aside and present appeal is allowed.
- Appellant granted bail with the execution of bail of Rs 2 lakhs.
- Appellant shall not leave the country without specific orders to be passed by the learned Special Judge.
- appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses;
- Appellant shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused.
[P. Chidambaram v. Directorate of Enforcement, 2019 SCC OnLine SC 1549, decided on 04-12-2019]