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Against fair trial if in every case the prosecution presents documents in sealed cover: SC

  1. Chidambaram.VS. Directorate of Enforcement., CRIMINAL APPEAL NO.1831/2019 Arising out of S.L.P.(Criminal) No.10493 of 2019. – 4 December 2019.

The bench encompassing Justice R. Banumathi, Justice A.S. Bopanna, and Justice Hrishikesh Roy collectively pronounced judgment on regular bail sought by the appellant under Section 439 of Cr.PC. M/s INX Media Private Limited had sought approval to make a downstream financial investment to the extent of 26% of M/s INX News Private Limited. The Foreign Investment Promotion Board (FIPB) did not approve the downstream investment. Further, it issued quantum of FDI/NRI inflow against M/s INX media which was shown as Rs. 4.62 crores and that was in contradiction to the approval. It was alleged in the FIR that M/s INX Media in order to avoid punitive action entered into criminal conspiracy with Mr. Karti Chidambaram. Concealing the happenings they sought approval for another downstream investment. The Respondent Directorate of Enforcement registered a case ECIR/07/HIU/2017 under section 3 of Prevention of Money Laundering Act, 2002 (PMLA), punishable under section 4 of the said Act against the accused mentioned in the FIR. On 23.7.2018, apprehending his arrest by the Respondent, the appellant filed an application before the High Court of Delhi seeking grant of anticipatory bail in the aforementioned ECIR case but it was dismissed. The appellant then approached this court by filing Criminal Appeal No. 1340 of 2019 (arising out of SLP (Crl.) No. 7523 of 2019) and the Court concluded that grant of anticipatory bail to the appellant would hamper the investigation.

In the meantime, the appellant was arrested in the CBI case. This application for anticipatory bail was again rejected on 13.9.2019 by the Trial Court (Court of Special Judge (PC Act), CBI). He was not arrested since investigation was going on and the respondents moved a application under 267 CrPC. The allegations against the appellant were that in lieu of granting FIPB approval to INX Media Pvt. Ltd., he and his son received a sum of approx. Rs. 3 crores through Karti P. Chidambaram. The appellant without ascertaining their competency, granted approval. Further the appellant became fully aware about the violations made by INX Group. A complaint was also received by him regarding the investment by M/s INX Media into M/s INX News without due approval. Despite this knowledge, the appellant again approved the downstream proposal of INX Group treating it as a fresh approval. Further investigation has revealed that there were at least 17 overseas bank accounts opened by the appellant and co-conspirators. The Trial Court remanded the appellant to the custody of the Respondent for a period of 7 days. The appellants moved a bail petition under section 439 of CrPC in the High Court and the same was dismissed.

It could be deduced that the 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.

Shri Kapil Sibal and Dr. Abhishek Manu Singhvi, learned senior counsels appeared on behalf of the appellants. Shri Tushar Mehta, learned Solicitor General appeared on behalf of the respondents. The appellants argued that the High Court had to have granted regular bail to the appellant after holding the triple test of flight risk, tampering with evidence and influencing of witnesses in favour of the appellant. Further, they submitted that he was neither a shareholder nor director of any allegedly connected company nor did he have any connection with any of these companies and arguments in that line were heated up. Per contra, the respondents argued that despite holding the triple test in favour of the appellant the gravity of the offence can be considered as a stand-alone aspect as the gravity of the offence in a particular case was also important while considering bail. They contended that the economic offences were graver offences which affected the society. Further, they submitted that the learned Judge of the High Court had referred to the documents produced in a sealed cover and in that light arrived at the conclusion to deny bail.

Further while deciding the same case of the appellant in Crl. Appeal No.1340 of 2019, after holding so, this Court had consciously refrained from opening the sealed cover and perusing the documents lest some observations are made thereon after perusal of the same, which would prejudice the accused pre-trial. In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail.

The Court made the following observations:

  1. As rightly observed by the learned Single Judge the evidence and material collected was already available with the Investigating agency.

  2. The appellant was not in political power nor was he holding any post in the Government of the day so as to be in a position to interfere and therefore allegations could not be accepted in the face value.

  3. The learned Judge of the High Court had not to have travelled beyond the consideration on the triple test and holding it in favour of the appellant.

  4. It relied on the decisions in State of Bihar & Anr. vs. Amit Kumar; Nimmagadda Prasad vs. CBI; CBI vs. Ramendu Chattopadhy; Seniors Fraud Investigation Office vs. Nittin Johari & Anr.; Jagan Mohan Reddy vs. CBI; State of Gujarat vs. Mohanlal Jitamalji Porwal,

  5. Economic offences were also of grave nature which arose deep-rooted conspiracies and effected the community as a whole wass also to be kept in view while consideration for bail was made.

  6. It could be deduced that the basic jurisprudence relating to bail remains the same in as much as the grant of bail was the rule and refusal was the exception so as to ensure that the accused had the opportunity of securing fair trial.

  7. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case.

  8. Even after concluding the triple test in favour of the appellant the learned Judge of the High Court was certainly justified in adverting to the issue relating to the gravity of the offence.

  9. The recording of statements and the collation of material was in the nature of allegation against one of the co-accused Karti Chidambaram- son of appellant of opening shell companies and also purchasing benami properties in the name of relatives at various places in different countries.

  10. The finding recorded by the learned Judge of the High Court based on the material in sealed cover is not justified.

  11. It was noticed that one of the co-accused has been granted bail by the High Court while the other co-accused was enjoying interim protection from arrest.

  12. The appellant was aged about 74 years and as noted by the High Court itself in its order, the appellant had already suffered two bouts of illness during incarceration and was put on antibiotics and had been advised to take steroids of maximum strength.

The Court pronounced the following:

“The instant appeal is allowed and the judgment passed by the High Court of Delhi is set aside; The appellant is ordered to be released on bail if he is not required in any other case, subject to executing bail bonds for a sum of Rs.2 lakhs with two sureties of the like sum produced to the satisfaction of the learned Special Judge; The passport ordered to be deposited by this Court in the CBI case shall remain in deposit. The appellant shall make himself available for interrogation in the course of further investigation as and when required by the respondent The appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses; The appellant shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused. There shall be no order as to costs.”

– Jumanah Kader

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