Bail Application = 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
At the stage of granting bail, an elaborate examination of evidence and detailed
reasons touching upon the merit of the case, which may prejudice
the accused, should be avoided.
The jurisdiction to grant bail has to be exercised on the basis
of the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:-
(i) the nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution;
(ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses;
(iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence;
(iv) character behaviour and standing of the accused and the
circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations
The appellant is not a “flight risk” and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the
witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution.
The charge sheet has been filed against the appellant and other co-accused on 18.10.2019.
The appellant is in custody from 21.08.2019 for about two months.
The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems.
Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1603 2019
(Arising out of SLP(Crl.) No.9269 of 2019)
SHRI P. CHIDAMBARAM ...Appellant
VERSUS
CENTRAL BUREAU OF INVESTIGATION …Respondent
WITH
CRIMINAL APPEAL NO. 1605 2019
(Arising out of SLP(Crl.) No.9445 of 2019)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the impugned judgment dated
30.09.2019 passed by the High Court of Delhi in Bail Application
No.2270 of 2019 in and by which the High Court refused to grant
bail to the appellant in the case registered by the respondentCentral Bureau of Investigation (CBI) under Section 120B IPC read
1
with Section 420 IPC, Section 8 and Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988.
3. This appeal relates to the alleged irregularities in Foreign
Investment Promotion Board (FIPB) clearance given to the INX
Media for receiving foreign investment to the tune of Rs.305 crores
against approved inflow of Rs.4.62 crores. Briefly stated case of the
prosecution as per the FIR is as under:- In 2007, INX Media Pvt.
Ltd. approached Foreign Investment Promotion Board (FIPB)
seeking approval for FDI upto 46.216 per cent of the issued equity
capital. While sending the proposal by INX Media to be placed
before the FIPB, INX Media had clearly mentioned in it the inflow of
FDI to the extent of Rs.4,62,16,000/- taking the proposed issue at
its face value. The FIPB in its meeting held on 18.05.2007
recommended the proposal of INX Media subject to the approval of
the Finance Minister-the appellant. In the meeting, the Board did not
approve the downstream investment by INX Media in INX News.
INX Media committed violation of the recommendation of FIPB and
the conditions of the approval as:- (i) INX Media deliberately made a
downstream investment to the extent of 26% in the capital of INX
News Ltd. without specific approval of FIPB which included indirect
foreign investment by the same Foreign Investors; (ii) generated
2
more than Rs.305 crores FDI in INX Media which is in clear violation
of the approved foreign flow of Rs.4.62 crores by issuing shares to
the foreign investors at a premium of more than Rs.800/- per share.
4. Upon receipt of a complaint on the basis of a cheque for an
amount of Rs.10,00,000/- made in favour of M/s Advantage
Strategic Consulting Private Limited (ASCPL) by INX Media, the
investigation wing of the Income Tax Department proceeded to
investigate the matter and the relevant information was sought from
the FIPB, which in turn, vide its letter dated 26.05.2008 sought
clarification from the INX Media which justified its action saying that
the downstream investment has been approved and that the same
was made in accordance with the approval of FIPB. It is alleged by
the prosecution that in order to get out of the situation without any
penal provision, INX Media entered into a criminal conspiracy with
Sh. Karti Chidambaram, Promoter Director, Chess Management
Services Pvt. Ltd. and the appellant-the then Finance Minister of
India. INX Media through the letter dated 26.06.2008 tried to justify
their action stating that the downstream investment has been
approved and the same was made in accordance with approval.
5. It is alleged that INX Media Group in its record has clearly
mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as
3
towards “management consultancy charges towards FIPB
notification and clarification”. The FIR further alleges that for the
services rendered by Sh. Karti Chidambaram to INX Media through
Chess Management Services in getting the issues scuttled by
influencing the public servants of FIPB unit of the Ministry of
Finance, consideration in the form of payments were received
against invoices raised on INX Media by ASCPL. It is further
alleged that the very reason for getting the invoices raised in the
name of ASCPL for the services rendered by Chess Management
Services was with a view to conceal the identity of Sh. Karti
Chidambaram. It is stated that Sh. Karti Chidambaram was the
Promoter, Director of Chess Management Services whereas ASCPL
was being controlled by him indirectly. It is alleged that the invoices
approximately for an amount of Rs.3.50 crores were falsely got
raised in favour of INX Media in the name of other companies in
which Sh. Karti Chidambaram was having sustainable interest either
directly or indirectly. It is alleged that such invoices were falsely got
raised for creation of acquisition of media content, consultancy in
respect of market research, acquisition of content of various genre
of Audio-Video etc. Alleging that the above acts of omission and
commission prima facie disclose commission of offence, on
15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under
4
Section 120B IPC read with Section 420 IPC, Section 8 and Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988 against the accused viz. (i) INX Media through its Director
Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim
Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P.
Chidambaram; (iv) Chess Management Services through its
Director Sh. Karti P. Chidambaram and others; (v) Advantage
Strategic Consulting through its Director Ms. Padma Vishwanathan
@ Padma Bhaskararaman and others; (vi) unknown officers/officials
of Ministry of Finance, Govt. of India; and (vii) other unknown
persons for the alleged irregularities in giving FIPB’s clearance to
INX Media to receive overseas funds of Rs.305 crores against
approved Foreign Direct Investment (FDI) of Rs.4.62 crores.
6. Apprehending arrest, the appellant filed petition under Section
438 Cr.P.C. before the High Court seeking anticipatory bail. Vide
order dated 31.05.2018, the High Court granted interim protection to
the appellant and the said interim protection continued till
20.08.2019. By the order dated 20.08.2019, the High Court
dismissed the application for anticipatory bail to the appellant.
Challenging the order declining anticipatory bail to the appellant,
SLP(Crl.) No.7525 of 2019 was preferred by the appellant before
5
the Supreme Court on 21.08.2019. In the meanwhile, the appellant
was arrested by the CBI on the night of 21.08.2019 and the
appellant has been in custody since then. Since the appellant was
arrested in connection with CBI case, the appellant’s SLP being
SLP(Crl.) No.7525 of 2019 was dismissed as infructuous. Insofar
as the case registered by Enforcement Directorate, SLP(Crl.)
No.7523 of 2019 was dismissed by this Court refusing to grant
anticipatory bail to the appellant by a detailed order dated
05.09.2019. In the present case, we are concerned only with the
case registered by the respondent-CBI in RC No.220/2017-E-0011.
7. The High Court by its impugned judgment dated 30.09.2019
refused to grant regular bail to the appellant and dismissed the bail
application. Before the High Court, three contentions were raised by
the respondent-CBI:- (i) flight risk; (ii) tampering with evidence; and
(iii) influencing witnesses. The learned Single Judge did not accept
the objection relating to “flight risk” and “tampering with evidence”.
Insofar as the objection of “flight risk” is concerned, the High Court
held that the appellant was not a “flight risk” and it was observed
that by issuing certain directions like “surrender of passport”,
“issuance of look-out notice” and such other directions, “flight risk”
can be secured. So far as the objection of “tampering with
6
evidence”, the High Court held that the documents relating to the
present case are in the custody of the prosecuting agency,
Government of India and the Court and therefore, there is no
possibility of the appellant tampering with the evidence. But on the
third count i.e. “influencing the witnesses”, the High Court held that
the investigation was in an advance stage and the possibility of the
appellant influencing the witnesses cannot be ruled out.
8. The appellant has challenged the impugned judgment denying
bail to him on the court’s apprehension that he is likely to influence
the witnesses. So far as the findings of the High Court on two
counts namely “flight risk” and “tampering with evidence” holding in
favour of the appellant, CBI has filed SLP(Crl.) No.9445 of 2019.
9. Mr. Kapil Sibal, learned Senior counsel for the appellant has
submitted that the High Court erred in dismissing the bail application
on mere apprehension that the appellant is likely to influence the
witnesses and there is no supporting material on the possibility of
the appellant of influencing the witnesses. Learned Senior counsel
further submitted that the reference to the two material witnesses
(accused) having been approached not to disclose information
regarding the appellant and his son, is not supported by any
material and the same lacks material particulars and no credibility
7
could be given to the allegations given in a sealed cover. It was
further submitted that the learned Single Judge did not appreciate
that in various remand applications filed by the respondent, there
was no allegation that any material witnesses (accused) having
been approached not to disclose information about the appellant
and his son and the above allegation has been made as an
afterthought in a sealed cover only to prejudice the grant of bail to
the appellant. The learned Senior counsel submitted that the
appellant was interrogated by the CBI only once though the CBI had
taken appellant’s custody for number of days.
10. Dr. A.M. Singhvi, learned Senior counsel submitted that “bail
is a rule and jail is an exception” and this well-settled position has
not been kept in view by the High Court. The learned Senior
counsel submitted that bail was denied to the appellant based on
what was given in a sealed cover and submitted “that the
apprehension of CBI-possibility of influencing the witnesses” is an
afterthought. Placing reliance upon Mahender Chawla and others
v. Union of India and others 2018 (15) SCALE 497, the learned
Senior counsel submitted that if really the appellant approached the
witnesses so as to influence them, the prosecution could have
taken steps and sought for protection of the witnesses as per the
8
“witnesses protection scheme” laid down in Mahender Chawla’s
case. The learned Senior counsel further submitted that all other
accused are on bail and there is no justifiable reason to deny bail to
the appellant. It is also contended that now the charge sheet has
been filed and it does not indicate that tampering with evidence or
intimidating witness is a charge but the allegation is continued to be
made based on something unilaterally recorded and produced in a
sealed cover before the High Court which was only to prejudice the
mind of the Court.
11. So far as the cross appeal filed by the CBI, the learned Senior
counsel for the appellant submitted that after the anticipatory bail
was refused to the appellant by the High Court on 20.08.2019, the
appellant approached the Supreme Court for urgent hearing on the
very same day i.e. on 20.08.2019 and made a mention before the
Senior Judge on 21.08.2019 who had directed the matter be listed
for urgent hearing after placing the matter before Hon’ble the Chief
Justice of India and thereafter, the matter was listed on 23.08.2019.
The learned Senior counsel submitted that on 20.08.2019 and
21.08.2019, the appellant had consultation with his lawyers and was
preparing the matter for filing SLP and there was no question of his
abscondence. It is submitted that the appellant thereafter
9
addressed a press conference and then proceeded to his own
house from where he was arrested. It was submitted that the
appellant had thus not even attempted to conceal himself or evade
the process of law. It was contended that the FIR is of 2017 and the
appellant has not left the country ever since, instead he had joined
the investigation and co-operated with the investigating agency. It
was further submitted that the appellant being a Member of
Parliament and a Senior Member of the Bar, there is no question of
“flight risk” and the High Court rightly held in favour of the appellant
on two counts viz. “flight risk” and “tampering with evidence”.
12. Mr. Tushar Mehta, learned Solicitor General submitted that
while considering the bail application, the court should look into the
gravity of the offence and that the possibility of the accused
apprehending his conviction fleeing the country and since many
economic offenders have fled from the country and the nation is
facing this problem of the “economic offenders fleeing the country”.
It was submitted that the second test is to find out whether the
accused has wherewithal to flee the country and possessing
resources and capacity to settle abroad. It was contended that the
respondent-CBI has definite material to show that the “witness was
influenced” and in order to prevent further possibility of influence
10
and the vulnerability of the witness, the identity and the statement of
the said witness cannot be shared with the accused. It was
submitted that the statement of the said witness that he was being
approached not to disclose any information regarding the appellant
and his son, was produced before the High Court in a sealed cover
and based upon the same, the High Court rightly refused to grant
bail on the ground of “likelihood of influencing the witnesses”. The
learned Solicitor General submitted that “likelihood of influencing the
witness” is not a mere apprehension but based upon material and
there is serious danger of the witnesses being influenced and the
mere presence of the accused-appellant would be sufficient to
intimidate the witnesses.
13. The learned Solicitor General further submitted that the
charge sheet has been filed on 18.10.2019 against the appellant
and his son Sh. Karti Chidambaram and others including the
officials under Section 120B IPC read with Section 420 IPC,
Sections 468 and 471 IPC and under Section 9 and 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act. It was
submitted that the investigation qua INX is largely over and the
investigation reveals that more companies are involved and the
investigation qua other companies are going on and if the appellant
11
is granted bail at this stage, it would prejudicially affect the further
course of investigation. The learned Solicitor General therefore
prayed for dismissal of the appeal filed by the appellant accused
and allow the appeal filed by the CBI.
14. We have carefully considered the contentions and perused
the impugned judgment and materials on record. The question
falling for consideration is when other factors i.e. “flight risk” and
“tampering with evidence” are held in favour of the appellant,
whether the High Court was justified in declining regular bail to the
appellant on the apprehension that there is possibility that the
appellant might influence the witnesses.
15. The learned Senior counsel for the appellant submitted that in
the High Court, the appellant made submission limited to the
applicability of the certain “Press Note” and the correctness of the
decision taken by FIPB and the Finance Ministry only to show prima
facie for the purpose of grant of bail and to show that the allegations
against the appellant are unfounded and incorrect. It was submitted
that the learned Single Judge even before the charges being
framed and trial being held, had gone into the merits and demerits
of the allegations against the appellant and rendered conclusive
findings on the merits merely based on the allegations itself causing
12
serious prejudice to the appellant and his defence in the impending
trial and the impugned judgment passed by the High Court is
completely contrary to the law laid down by the Supreme Court. In
support of this contention, the learned Senior counsel placed
reliance upon Niranjan Singh and another v. Prabhakar Rajaram
Kharote and others (1980) 2 SCC 559.
16. Refuting the said contentions, the learned Solicitor General
submitted that though at the stage of grant or refusal to grant of bail,
detailed examination of the merits of the matter is not required, but
the court has to indicate reasons for prima facie concluding as to
why bail was granted or refused. In support of his contention, the
learned Solicitor General placed reliance upon Kalyan Chandra
Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528 and Puran
v. Rambilas and another (2001) 6 SCC 338. It was contended that
the findings recorded by the learned Single Judge is only to record
prima facie finding indicating as to why bail was not granted and the
reasonings cannot be said to be touching upon the merits of the
case.
17. Expression of prima facie reasons for granting or refusing to
grant bail is a requirement of law especially where such bail orders
are appealable so as to indicate application of mind to the matter
13
under consideration and the reasons for conclusion. Recording of
reasons is necessary since the accused/prosecution/victim has
every right to know the reasons for grant or refusal to grant bail.
This will also help the appellate court to appreciate and consider the
reasonings for grant or refusal to grant bail. But giving reasons for
exercise of discretion in granting or refusing to grant bail is different
from discussing the merits or demerits of the case. At the stage of
granting bail, an elaborate examination of evidence and detailed
reasons touching upon the merit of the case, which may prejudice
the accused, should be avoided. Observing that “at the stage of
granting bail, detailed examination of evidence and elaborate
documentation of the merits of the case should be avoided”, in
Niranjan Singh, it was held as under:-
“3. ……Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing
orders on bail applications. No party should have the impression
that his case has been prejudiced. To be satisfied about a prima
facie case is needed but it is not the same as an exhaustive
exploration of the merits in the order itself.”
18. In the present case, in the impugned judgment, paras (51) to
(70) relate to the findings on the merits of the prosecution case. As
discussed earlier, at the stage of considering the application for bail,
detailed examination of the merits of the prosecution case and the
14
merits or demerits of the materials relied upon by the prosecution,
should be avoided. It is therefore, made clear that the findings of
the High Court in paras (51) to (70) be construed as expression of
opinion only for the purpose of refusal to grant bail and the same
shall not in any way influence the trial or other proceedings.
19. The learned Senior counsel for the appellant has taken us
through the dates and events and submitted that in the Enforcement
Directorate’s case after the dismissal of the appeal by the Supreme
Court refusing to grant anticipatory bail, immediately the appellant
sought to surrender in the Enforcement Directorate’s case; but the
same was objected to by the Enforcement Directorate and the
Department has sought to arrest the appellant subsequently only on
11.10.2019 and the investigating agencies are prejudicially acting
against the appellant to ensure that the appellant is not released on
bail and continues to languish in custody.
20. Refuting the said contention of the appellant that the
investigating agencies-CBI and Enforcement Directorate are bent
upon prolonging the custody of the appellant, the learned Solicitor
General submitted that after the anticipatory bail was dismissed by
the Supreme Court in Criminal Appeal No.1340 of 2019 on
05.09.2019, the appellant has filed the petition to surrender in the
15
Enforcement Directorate’s case on 05.09.2019 itself and the
Enforcement Directorate objected to the surrender of the appellant.
The learned Solicitor General submitted that the Enforcement
Directorate wanted to take custody of the appellant in the
Enforcement Directorate’s case only after examination of witnesses
and collecting relevant materials. It was submitted that between
06.09.2019 and 09.10.2019, twelve witnesses were examined and
thereafter, the Enforcement Directorate filed an application on
11.10.2019 seeking permission to arrest the appellant in connection
with Enforcement Directorate’s case and thereafter, application for
custodial interrogation of the appellant was filed and the
Enforcement Directorate has taken the appellant to custody for
interrogation for seven days (vide order dated 17.10.2019). It was
therefore contended that no motive could be attributed to the
investigating agency be it CBI or Enforcement Directorate on the
timing of their action in the case against the appellant.
21. In this appeal, we are only concerned with the question of
grant of bail or otherwise to the appellant in the CBI case. We have
referred to the submission of learned Senior counsel for the
appellant and learned Solicitor General only for the sake of
completion of the sequence of the contentions raised. Since the
16
matter pertaining to Enforcement Directorate is pending before the
concerned court, we are not expressing any opinion on the merits of
the rival contention; lest it might prejudice the parties in the
appropriate proceedings.
22. The jurisdiction to grant bail has to be exercised on the basis
of the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:- (i) the
nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution; (ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger interest
of the public or the State and similar other considerations (vide
Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280).
There is no hard and fast rule regarding grant or refusal to grant
bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion
17
of the court has to be exercised judiciously and not in an arbitrary
manner. At this stage itself, it is necessary for us to indicate that we
are unable to accept the contention of the learned Solicitor General
that “flight risk” of economic offenders should be looked at as a
national phenomenon and be dealt with in that manner merely
because certain other offenders have flown out of the country. The
same cannot, in our view, be put in a straight-jacket formula so as to
deny bail to the one who is before the Court, due to the conduct of
other offenders, if the person under consideration is otherwise
entitled to bail on the merits of his own case. Hence, in our view,
such consideration including as to “flight risk” is to be made on
individual basis being uninfluenced by the unconnected cases,
more so, when the personal liberty is involved.
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another
(2004) 7 SCC 528, it was held as under:-
“11. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken,
there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence. Any
order devoid of such reasons would suffer from non-application of
mind. It is also necessary for the court granting bail to consider
18
among other circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan Singh
(2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC
338.)
Referring to the factors to be taken into consideration for grant of
bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu
(2005) 2 SCC 13, it was held as under:-
“16. …….The considerations which normally weigh with the court in
granting bail in non-bailable offences have been explained by this
Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and
Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and
basically they are — the nature and seriousness of the offence; the
character of the evidence; circumstances which are peculiar to the
accused; a reasonable possibility of the presence of the accused
not being secured at the trial; reasonable apprehension of
witnesses being tampered with; the larger interest of the public or
the State and other similar factors which may be relevant in the
facts and circumstances of the case……”
24. After referring para (11) of Kalyan Chandra Sarkar, in State of
U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held
as under:-
19
“18. It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed the
offence; (ii) nature and gravity of the charge; (iii) severity of the
punishment in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail; (v) character, behaviour,
means, position and standing of the accused; (vi) likelihood of the
offence being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail [see Prahlad Singh Bhati v.
NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi
Admn.) (1978) 1 SCC 118]. While a vague allegation that the
accused may tamper with the evidence or witnesses may not be a
ground to refuse bail, if the accused is of such character that his
mere presence at large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused……..”.
25. In the light of the above well-settled principles, let us consider
the present case. At the outset, it is to be pointed out that in the
impugned judgment, the High Court mainly focussed on the nature
of the allegations and the merits of the case; but the High Court did
not keep in view the well-settled principles for grant or refusal to
grant bail.
26. As discussed earlier, insofar as the “flight risk” and “tampering
with evidence” are concerned, the High Court held in favour of the
appellant by holding that the appellant is not a “flight risk” i.e. “no
possibility of his abscondence”. The High Court rightly held that by
20
issuing certain directions like “surrender of passport”, “issuance of
look out notice”, “flight risk” can be secured. So far as “tampering
with evidence” is concerned, the High Court rightly held that the
documents relating to the case are in the custody of the prosecuting
agency, Government of India and the Court and there is no chance
of the appellant tampering with evidence.
27. The learned Solicitor General submitted that when the
accused is facing grave charges and when he entertains doubts of
possibility of his being conviction, there is a “flight risk”. It was
submitted that the appellant has wherewithal to flee away from the
country and prayed to refuse bail to the appellant on the ground of
“flight risk” also. We find no merit in the submission that the
appellant is a “flight risk” and there is possibility of his abscondence.
In the FIR registered on 15.05.2017, the High Court has granted
interim protection to the appellant on 31.05.2018 and the same was
in force till 20.08.2019 – the date on which the High Court dismissed
the appellant’s petition for anticipatory bail. Between 31.05.2018
and 20.08.2019, when the appellant was having interim protection,
the appellant did not file any application seeking permission to travel
abroad nor prior to the same after registration of FIR any attempt is
shown to have been made to flee. On behalf of the appellant, it is
21
stated that the appellant being the Member of Parliament and a
Senior Member of the Bar has strong roots in society and his
passport having been surrendered and “look out notice” issued
against him, there is no likelihood of his fleeing away from the
country or his abscondence from the trial. We find merit in the
submission of the learned Senior counsel for the appellant that the
appellant is not a “flight risk”; more so, when the appellant has
surrendered his passport and when there is a “lookout notice”
issued against the appellant.
28. So far as the allegation of possibility of influencing the
witnesses, the High Court referred to the arguments of the learned
Solicitor General which is said to have been a part of a “sealed
cover” that two material witnesses are alleged to have been
approached not to disclose any information regarding the appellant
and his son and the High Court observed that the possibility of
influencing the witnesses by the appellant cannot be ruled out. The
relevant portion of the impugned judgment of the High Court in para
(72) reads as under:-
“72. As argued by learned Solicitor General, (which is part of
‘Sealed Cover’, two material witnesses (accused) have been
approached for not to disclose any information regarding the
petitioner and his son (co-accused). This court cannot dispute the
fact that petitioner has been a strong Finance Minister and Home
22
Minister and presently, Member of Indian Parliament. He is
respectable member of the Bar Association of Supreme Court of
India. He has long standing in BAR as a Senior Advocate. He has
deep root in the Indian Society and may be some connection in
abroad. But, the fact that he will not influence the witnesses
directly or indirectly, cannot be ruled out in view of above facts.
Moreover, the investigation is at advance stage, therefore, this
Court is not inclined to grant bail.”
29. FIR was registered by the CBI on 15.05.2017. The appellant
was granted interim protection on 31.05.2018 till 20.08.2019. Till
the date, there has been no allegation regarding influencing of any
witness by the appellant or his men directly or indirectly. In the
number of remand applications, there was no whisper that any
material witness has been approached not to disclose information
about the appellant and his son. It appears that only at the time of
opposing the bail and in the counter affidavit filed by the CBI before
the High Court, the averments were made that “…..the appellant is
trying to influence the witnesses and if enlarged on bail, would
further pressurize the witnesses…..”. CBI has no direct evidence
against the appellant regarding the allegation of appellant directly or
indirectly influencing the witnesses. As rightly contended by the
learned Senior counsel for the appellant, no material particulars
were produced before the High Court as to when and how those
two material witnesses were approached. There are no details as
23
to the form of approach of those two witnesses either SMS, e-mail,
letter or telephonic calls and the persons who have approached the
material witnesses. Details are also not available as to when, where
and how those witnesses were approached.
30. The learned Solicitor General submitted that the statement of
witness ‘X’ who is said to have been approached not to disclose any
information regarding the appellant and his son, has been recorded
under Section 164 Cr.P.C. in which the said witness ‘X’ has made
the statement that he has been approached. Statement under
Section 164 Cr.P.C. of the said witness ‘X’ is said to have been
recorded on 15.03.2018. The said witness allegedly approached or
the other witnesses in a case of the present nature, cannot be said
to be a rustic or vulnerable witness who could be so easily
influenced; more so, when the allegations are said to be based on
documents. More particularly, there is no material to show that
the appellant or his men have been approaching the said witness so
as to influence the witness not to depose against the appellant or
his son.
31. It is to be pointed out that the respondent - CBI has filed
remand applications seeking remand of the appellant on various
dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019,
24
05.09.2019 and 19.09.2019 etc. In these applications, there were
no allegations that the appellant was trying to influence the
witnesses and that any material witnesses (accused) have been
approached not to disclose information about the appellant and his
son. In the absence of any contemporaneous materials, no weight
could be attached to the allegation that the appellant has been
influencing the witnesses by approaching the witnesses. The
conclusion of the learned Single Judge “…that it cannot be ruled out
that the petitioner will not influence the witnesses directly or
indirectly……” is not substantiated by any materials and is only a
generalised apprehension and appears to be speculative. Mere
averments that the appellant approached the witnesses and the
assertion that the appellant would further pressurize the witnesses,
without any material basis cannot be the reason to deny regular bail
to the appellant; more so, when the appellant has been in custody
for nearly two months, co-operated with the investigating agency
and the charge sheet is also filed.
32. The appellant is not a “flight risk” and in view of the conditions
imposed, there is no possibility of his abscondence from the trial.
Statement of the prosecution that the appellant has influenced the
witnesses and there is likelihood of his further influencing the
25
witnesses cannot be the ground to deny bail to the appellant
particularly, when there is no such whisper in the six remand
applications filed by the prosecution. The charge sheet has been
filed against the appellant and other co-accused on 18.10.2019.
The appellant is in custody from 21.08.2019 for about two months.
The co-accused were already granted bail. The appellant is said to
be aged 74 years and is also said to be suffering from age related
health problems. Considering the above factors and the facts and
circumstances of the case, we are of the view that the appellant is
entitled to be granted bail.
33. In the result, the impugned judgment dated 30.09.2019
passed by the High Court of Delhi in Bail Application No.2270 of
2019 is set aside and the appeal arising out of SLP(Crl.) No.9269 of
2019 is allowed. The appellant is ordered to be released on bail if
not required in any other case, subject to the condition of his
executing bail bonds for a sum of Rs.1,00,000/- with two sureties of
like sum to the satisfaction of the Special Judge (PC Act), CBI-06,
Patiala House Courts, New Delhi. The passport if already not
deposited, shall be deposited with the Special Court and the
appellant shall not leave the country without leave of the Special
Court and subject to the order that may be passed by the Special
26
Judge from time to time. The appellant shall make himself available
for interrogation as and when required. Consequently, the appeal
arising out of SLP(Crl.) No.9445 of 2019 preferred by the CBI
stands dismissed. Since the High Court, in the impugned judgment,
has expressed its views on the merits of the matter, the findings of
the High Court in the impugned judgment shall not have any
bearing either in the trial or in any other proceedings. It is made
clear that the findings in this judgment be construed as expression
of opinion only for the limited purpose of considering the regular bail
in CBI case and shall not have any bearing in any other
proceedings.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
………………………..J.
[HRISHIKESH ROY]
New Delhi;
October 22, 2019
27
At the stage of granting bail, an elaborate examination of evidence and detailed
reasons touching upon the merit of the case, which may prejudice
the accused, should be avoided.
The jurisdiction to grant bail has to be exercised on the basis
of the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:-
(i) the nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution;
(ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses;
(iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence;
(iv) character behaviour and standing of the accused and the
circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations
The appellant is not a “flight risk” and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the
witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution.
The charge sheet has been filed against the appellant and other co-accused on 18.10.2019.
The appellant is in custody from 21.08.2019 for about two months.
The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems.
Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1603 2019
(Arising out of SLP(Crl.) No.9269 of 2019)
SHRI P. CHIDAMBARAM ...Appellant
VERSUS
CENTRAL BUREAU OF INVESTIGATION …Respondent
WITH
CRIMINAL APPEAL NO. 1605 2019
(Arising out of SLP(Crl.) No.9445 of 2019)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the impugned judgment dated
30.09.2019 passed by the High Court of Delhi in Bail Application
No.2270 of 2019 in and by which the High Court refused to grant
bail to the appellant in the case registered by the respondentCentral Bureau of Investigation (CBI) under Section 120B IPC read
1
with Section 420 IPC, Section 8 and Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988.
3. This appeal relates to the alleged irregularities in Foreign
Investment Promotion Board (FIPB) clearance given to the INX
Media for receiving foreign investment to the tune of Rs.305 crores
against approved inflow of Rs.4.62 crores. Briefly stated case of the
prosecution as per the FIR is as under:- In 2007, INX Media Pvt.
Ltd. approached Foreign Investment Promotion Board (FIPB)
seeking approval for FDI upto 46.216 per cent of the issued equity
capital. While sending the proposal by INX Media to be placed
before the FIPB, INX Media had clearly mentioned in it the inflow of
FDI to the extent of Rs.4,62,16,000/- taking the proposed issue at
its face value. The FIPB in its meeting held on 18.05.2007
recommended the proposal of INX Media subject to the approval of
the Finance Minister-the appellant. In the meeting, the Board did not
approve the downstream investment by INX Media in INX News.
INX Media committed violation of the recommendation of FIPB and
the conditions of the approval as:- (i) INX Media deliberately made a
downstream investment to the extent of 26% in the capital of INX
News Ltd. without specific approval of FIPB which included indirect
foreign investment by the same Foreign Investors; (ii) generated
2
more than Rs.305 crores FDI in INX Media which is in clear violation
of the approved foreign flow of Rs.4.62 crores by issuing shares to
the foreign investors at a premium of more than Rs.800/- per share.
4. Upon receipt of a complaint on the basis of a cheque for an
amount of Rs.10,00,000/- made in favour of M/s Advantage
Strategic Consulting Private Limited (ASCPL) by INX Media, the
investigation wing of the Income Tax Department proceeded to
investigate the matter and the relevant information was sought from
the FIPB, which in turn, vide its letter dated 26.05.2008 sought
clarification from the INX Media which justified its action saying that
the downstream investment has been approved and that the same
was made in accordance with the approval of FIPB. It is alleged by
the prosecution that in order to get out of the situation without any
penal provision, INX Media entered into a criminal conspiracy with
Sh. Karti Chidambaram, Promoter Director, Chess Management
Services Pvt. Ltd. and the appellant-the then Finance Minister of
India. INX Media through the letter dated 26.06.2008 tried to justify
their action stating that the downstream investment has been
approved and the same was made in accordance with approval.
5. It is alleged that INX Media Group in its record has clearly
mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as
3
towards “management consultancy charges towards FIPB
notification and clarification”. The FIR further alleges that for the
services rendered by Sh. Karti Chidambaram to INX Media through
Chess Management Services in getting the issues scuttled by
influencing the public servants of FIPB unit of the Ministry of
Finance, consideration in the form of payments were received
against invoices raised on INX Media by ASCPL. It is further
alleged that the very reason for getting the invoices raised in the
name of ASCPL for the services rendered by Chess Management
Services was with a view to conceal the identity of Sh. Karti
Chidambaram. It is stated that Sh. Karti Chidambaram was the
Promoter, Director of Chess Management Services whereas ASCPL
was being controlled by him indirectly. It is alleged that the invoices
approximately for an amount of Rs.3.50 crores were falsely got
raised in favour of INX Media in the name of other companies in
which Sh. Karti Chidambaram was having sustainable interest either
directly or indirectly. It is alleged that such invoices were falsely got
raised for creation of acquisition of media content, consultancy in
respect of market research, acquisition of content of various genre
of Audio-Video etc. Alleging that the above acts of omission and
commission prima facie disclose commission of offence, on
15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under
4
Section 120B IPC read with Section 420 IPC, Section 8 and Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988 against the accused viz. (i) INX Media through its Director
Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim
Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P.
Chidambaram; (iv) Chess Management Services through its
Director Sh. Karti P. Chidambaram and others; (v) Advantage
Strategic Consulting through its Director Ms. Padma Vishwanathan
@ Padma Bhaskararaman and others; (vi) unknown officers/officials
of Ministry of Finance, Govt. of India; and (vii) other unknown
persons for the alleged irregularities in giving FIPB’s clearance to
INX Media to receive overseas funds of Rs.305 crores against
approved Foreign Direct Investment (FDI) of Rs.4.62 crores.
6. Apprehending arrest, the appellant filed petition under Section
438 Cr.P.C. before the High Court seeking anticipatory bail. Vide
order dated 31.05.2018, the High Court granted interim protection to
the appellant and the said interim protection continued till
20.08.2019. By the order dated 20.08.2019, the High Court
dismissed the application for anticipatory bail to the appellant.
Challenging the order declining anticipatory bail to the appellant,
SLP(Crl.) No.7525 of 2019 was preferred by the appellant before
5
the Supreme Court on 21.08.2019. In the meanwhile, the appellant
was arrested by the CBI on the night of 21.08.2019 and the
appellant has been in custody since then. Since the appellant was
arrested in connection with CBI case, the appellant’s SLP being
SLP(Crl.) No.7525 of 2019 was dismissed as infructuous. Insofar
as the case registered by Enforcement Directorate, SLP(Crl.)
No.7523 of 2019 was dismissed by this Court refusing to grant
anticipatory bail to the appellant by a detailed order dated
05.09.2019. In the present case, we are concerned only with the
case registered by the respondent-CBI in RC No.220/2017-E-0011.
7. The High Court by its impugned judgment dated 30.09.2019
refused to grant regular bail to the appellant and dismissed the bail
application. Before the High Court, three contentions were raised by
the respondent-CBI:- (i) flight risk; (ii) tampering with evidence; and
(iii) influencing witnesses. The learned Single Judge did not accept
the objection relating to “flight risk” and “tampering with evidence”.
Insofar as the objection of “flight risk” is concerned, the High Court
held that the appellant was not a “flight risk” and it was observed
that by issuing certain directions like “surrender of passport”,
“issuance of look-out notice” and such other directions, “flight risk”
can be secured. So far as the objection of “tampering with
6
evidence”, the High Court held that the documents relating to the
present case are in the custody of the prosecuting agency,
Government of India and the Court and therefore, there is no
possibility of the appellant tampering with the evidence. But on the
third count i.e. “influencing the witnesses”, the High Court held that
the investigation was in an advance stage and the possibility of the
appellant influencing the witnesses cannot be ruled out.
8. The appellant has challenged the impugned judgment denying
bail to him on the court’s apprehension that he is likely to influence
the witnesses. So far as the findings of the High Court on two
counts namely “flight risk” and “tampering with evidence” holding in
favour of the appellant, CBI has filed SLP(Crl.) No.9445 of 2019.
9. Mr. Kapil Sibal, learned Senior counsel for the appellant has
submitted that the High Court erred in dismissing the bail application
on mere apprehension that the appellant is likely to influence the
witnesses and there is no supporting material on the possibility of
the appellant of influencing the witnesses. Learned Senior counsel
further submitted that the reference to the two material witnesses
(accused) having been approached not to disclose information
regarding the appellant and his son, is not supported by any
material and the same lacks material particulars and no credibility
7
could be given to the allegations given in a sealed cover. It was
further submitted that the learned Single Judge did not appreciate
that in various remand applications filed by the respondent, there
was no allegation that any material witnesses (accused) having
been approached not to disclose information about the appellant
and his son and the above allegation has been made as an
afterthought in a sealed cover only to prejudice the grant of bail to
the appellant. The learned Senior counsel submitted that the
appellant was interrogated by the CBI only once though the CBI had
taken appellant’s custody for number of days.
10. Dr. A.M. Singhvi, learned Senior counsel submitted that “bail
is a rule and jail is an exception” and this well-settled position has
not been kept in view by the High Court. The learned Senior
counsel submitted that bail was denied to the appellant based on
what was given in a sealed cover and submitted “that the
apprehension of CBI-possibility of influencing the witnesses” is an
afterthought. Placing reliance upon Mahender Chawla and others
v. Union of India and others 2018 (15) SCALE 497, the learned
Senior counsel submitted that if really the appellant approached the
witnesses so as to influence them, the prosecution could have
taken steps and sought for protection of the witnesses as per the
8
“witnesses protection scheme” laid down in Mahender Chawla’s
case. The learned Senior counsel further submitted that all other
accused are on bail and there is no justifiable reason to deny bail to
the appellant. It is also contended that now the charge sheet has
been filed and it does not indicate that tampering with evidence or
intimidating witness is a charge but the allegation is continued to be
made based on something unilaterally recorded and produced in a
sealed cover before the High Court which was only to prejudice the
mind of the Court.
11. So far as the cross appeal filed by the CBI, the learned Senior
counsel for the appellant submitted that after the anticipatory bail
was refused to the appellant by the High Court on 20.08.2019, the
appellant approached the Supreme Court for urgent hearing on the
very same day i.e. on 20.08.2019 and made a mention before the
Senior Judge on 21.08.2019 who had directed the matter be listed
for urgent hearing after placing the matter before Hon’ble the Chief
Justice of India and thereafter, the matter was listed on 23.08.2019.
The learned Senior counsel submitted that on 20.08.2019 and
21.08.2019, the appellant had consultation with his lawyers and was
preparing the matter for filing SLP and there was no question of his
abscondence. It is submitted that the appellant thereafter
9
addressed a press conference and then proceeded to his own
house from where he was arrested. It was submitted that the
appellant had thus not even attempted to conceal himself or evade
the process of law. It was contended that the FIR is of 2017 and the
appellant has not left the country ever since, instead he had joined
the investigation and co-operated with the investigating agency. It
was further submitted that the appellant being a Member of
Parliament and a Senior Member of the Bar, there is no question of
“flight risk” and the High Court rightly held in favour of the appellant
on two counts viz. “flight risk” and “tampering with evidence”.
12. Mr. Tushar Mehta, learned Solicitor General submitted that
while considering the bail application, the court should look into the
gravity of the offence and that the possibility of the accused
apprehending his conviction fleeing the country and since many
economic offenders have fled from the country and the nation is
facing this problem of the “economic offenders fleeing the country”.
It was submitted that the second test is to find out whether the
accused has wherewithal to flee the country and possessing
resources and capacity to settle abroad. It was contended that the
respondent-CBI has definite material to show that the “witness was
influenced” and in order to prevent further possibility of influence
10
and the vulnerability of the witness, the identity and the statement of
the said witness cannot be shared with the accused. It was
submitted that the statement of the said witness that he was being
approached not to disclose any information regarding the appellant
and his son, was produced before the High Court in a sealed cover
and based upon the same, the High Court rightly refused to grant
bail on the ground of “likelihood of influencing the witnesses”. The
learned Solicitor General submitted that “likelihood of influencing the
witness” is not a mere apprehension but based upon material and
there is serious danger of the witnesses being influenced and the
mere presence of the accused-appellant would be sufficient to
intimidate the witnesses.
13. The learned Solicitor General further submitted that the
charge sheet has been filed on 18.10.2019 against the appellant
and his son Sh. Karti Chidambaram and others including the
officials under Section 120B IPC read with Section 420 IPC,
Sections 468 and 471 IPC and under Section 9 and 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act. It was
submitted that the investigation qua INX is largely over and the
investigation reveals that more companies are involved and the
investigation qua other companies are going on and if the appellant
11
is granted bail at this stage, it would prejudicially affect the further
course of investigation. The learned Solicitor General therefore
prayed for dismissal of the appeal filed by the appellant accused
and allow the appeal filed by the CBI.
14. We have carefully considered the contentions and perused
the impugned judgment and materials on record. The question
falling for consideration is when other factors i.e. “flight risk” and
“tampering with evidence” are held in favour of the appellant,
whether the High Court was justified in declining regular bail to the
appellant on the apprehension that there is possibility that the
appellant might influence the witnesses.
15. The learned Senior counsel for the appellant submitted that in
the High Court, the appellant made submission limited to the
applicability of the certain “Press Note” and the correctness of the
decision taken by FIPB and the Finance Ministry only to show prima
facie for the purpose of grant of bail and to show that the allegations
against the appellant are unfounded and incorrect. It was submitted
that the learned Single Judge even before the charges being
framed and trial being held, had gone into the merits and demerits
of the allegations against the appellant and rendered conclusive
findings on the merits merely based on the allegations itself causing
12
serious prejudice to the appellant and his defence in the impending
trial and the impugned judgment passed by the High Court is
completely contrary to the law laid down by the Supreme Court. In
support of this contention, the learned Senior counsel placed
reliance upon Niranjan Singh and another v. Prabhakar Rajaram
Kharote and others (1980) 2 SCC 559.
16. Refuting the said contentions, the learned Solicitor General
submitted that though at the stage of grant or refusal to grant of bail,
detailed examination of the merits of the matter is not required, but
the court has to indicate reasons for prima facie concluding as to
why bail was granted or refused. In support of his contention, the
learned Solicitor General placed reliance upon Kalyan Chandra
Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528 and Puran
v. Rambilas and another (2001) 6 SCC 338. It was contended that
the findings recorded by the learned Single Judge is only to record
prima facie finding indicating as to why bail was not granted and the
reasonings cannot be said to be touching upon the merits of the
case.
17. Expression of prima facie reasons for granting or refusing to
grant bail is a requirement of law especially where such bail orders
are appealable so as to indicate application of mind to the matter
13
under consideration and the reasons for conclusion. Recording of
reasons is necessary since the accused/prosecution/victim has
every right to know the reasons for grant or refusal to grant bail.
This will also help the appellate court to appreciate and consider the
reasonings for grant or refusal to grant bail. But giving reasons for
exercise of discretion in granting or refusing to grant bail is different
from discussing the merits or demerits of the case. At the stage of
granting bail, an elaborate examination of evidence and detailed
reasons touching upon the merit of the case, which may prejudice
the accused, should be avoided. Observing that “at the stage of
granting bail, detailed examination of evidence and elaborate
documentation of the merits of the case should be avoided”, in
Niranjan Singh, it was held as under:-
“3. ……Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing
orders on bail applications. No party should have the impression
that his case has been prejudiced. To be satisfied about a prima
facie case is needed but it is not the same as an exhaustive
exploration of the merits in the order itself.”
18. In the present case, in the impugned judgment, paras (51) to
(70) relate to the findings on the merits of the prosecution case. As
discussed earlier, at the stage of considering the application for bail,
detailed examination of the merits of the prosecution case and the
14
merits or demerits of the materials relied upon by the prosecution,
should be avoided. It is therefore, made clear that the findings of
the High Court in paras (51) to (70) be construed as expression of
opinion only for the purpose of refusal to grant bail and the same
shall not in any way influence the trial or other proceedings.
19. The learned Senior counsel for the appellant has taken us
through the dates and events and submitted that in the Enforcement
Directorate’s case after the dismissal of the appeal by the Supreme
Court refusing to grant anticipatory bail, immediately the appellant
sought to surrender in the Enforcement Directorate’s case; but the
same was objected to by the Enforcement Directorate and the
Department has sought to arrest the appellant subsequently only on
11.10.2019 and the investigating agencies are prejudicially acting
against the appellant to ensure that the appellant is not released on
bail and continues to languish in custody.
20. Refuting the said contention of the appellant that the
investigating agencies-CBI and Enforcement Directorate are bent
upon prolonging the custody of the appellant, the learned Solicitor
General submitted that after the anticipatory bail was dismissed by
the Supreme Court in Criminal Appeal No.1340 of 2019 on
05.09.2019, the appellant has filed the petition to surrender in the
15
Enforcement Directorate’s case on 05.09.2019 itself and the
Enforcement Directorate objected to the surrender of the appellant.
The learned Solicitor General submitted that the Enforcement
Directorate wanted to take custody of the appellant in the
Enforcement Directorate’s case only after examination of witnesses
and collecting relevant materials. It was submitted that between
06.09.2019 and 09.10.2019, twelve witnesses were examined and
thereafter, the Enforcement Directorate filed an application on
11.10.2019 seeking permission to arrest the appellant in connection
with Enforcement Directorate’s case and thereafter, application for
custodial interrogation of the appellant was filed and the
Enforcement Directorate has taken the appellant to custody for
interrogation for seven days (vide order dated 17.10.2019). It was
therefore contended that no motive could be attributed to the
investigating agency be it CBI or Enforcement Directorate on the
timing of their action in the case against the appellant.
21. In this appeal, we are only concerned with the question of
grant of bail or otherwise to the appellant in the CBI case. We have
referred to the submission of learned Senior counsel for the
appellant and learned Solicitor General only for the sake of
completion of the sequence of the contentions raised. Since the
16
matter pertaining to Enforcement Directorate is pending before the
concerned court, we are not expressing any opinion on the merits of
the rival contention; lest it might prejudice the parties in the
appropriate proceedings.
22. The jurisdiction to grant bail has to be exercised on the basis
of the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:- (i) the
nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution; (ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger interest
of the public or the State and similar other considerations (vide
Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280).
There is no hard and fast rule regarding grant or refusal to grant
bail. Each case has to be considered on the facts and
circumstances of each case and on its own merits. The discretion
17
of the court has to be exercised judiciously and not in an arbitrary
manner. At this stage itself, it is necessary for us to indicate that we
are unable to accept the contention of the learned Solicitor General
that “flight risk” of economic offenders should be looked at as a
national phenomenon and be dealt with in that manner merely
because certain other offenders have flown out of the country. The
same cannot, in our view, be put in a straight-jacket formula so as to
deny bail to the one who is before the Court, due to the conduct of
other offenders, if the person under consideration is otherwise
entitled to bail on the merits of his own case. Hence, in our view,
such consideration including as to “flight risk” is to be made on
individual basis being uninfluenced by the unconnected cases,
more so, when the personal liberty is involved.
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another
(2004) 7 SCC 528, it was held as under:-
“11. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken,
there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence. Any
order devoid of such reasons would suffer from non-application of
mind. It is also necessary for the court granting bail to consider
18
among other circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan Singh
(2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC
338.)
Referring to the factors to be taken into consideration for grant of
bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu
(2005) 2 SCC 13, it was held as under:-
“16. …….The considerations which normally weigh with the court in
granting bail in non-bailable offences have been explained by this
Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and
Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and
basically they are — the nature and seriousness of the offence; the
character of the evidence; circumstances which are peculiar to the
accused; a reasonable possibility of the presence of the accused
not being secured at the trial; reasonable apprehension of
witnesses being tampered with; the larger interest of the public or
the State and other similar factors which may be relevant in the
facts and circumstances of the case……”
24. After referring para (11) of Kalyan Chandra Sarkar, in State of
U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held
as under:-
19
“18. It is well settled that the matters to be considered in an
application for bail are (i) whether there is any prima facie or
reasonable ground to believe that the accused had committed the
offence; (ii) nature and gravity of the charge; (iii) severity of the
punishment in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail; (v) character, behaviour,
means, position and standing of the accused; (vi) likelihood of the
offence being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail [see Prahlad Singh Bhati v.
NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi
Admn.) (1978) 1 SCC 118]. While a vague allegation that the
accused may tamper with the evidence or witnesses may not be a
ground to refuse bail, if the accused is of such character that his
mere presence at large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused……..”.
25. In the light of the above well-settled principles, let us consider
the present case. At the outset, it is to be pointed out that in the
impugned judgment, the High Court mainly focussed on the nature
of the allegations and the merits of the case; but the High Court did
not keep in view the well-settled principles for grant or refusal to
grant bail.
26. As discussed earlier, insofar as the “flight risk” and “tampering
with evidence” are concerned, the High Court held in favour of the
appellant by holding that the appellant is not a “flight risk” i.e. “no
possibility of his abscondence”. The High Court rightly held that by
20
issuing certain directions like “surrender of passport”, “issuance of
look out notice”, “flight risk” can be secured. So far as “tampering
with evidence” is concerned, the High Court rightly held that the
documents relating to the case are in the custody of the prosecuting
agency, Government of India and the Court and there is no chance
of the appellant tampering with evidence.
27. The learned Solicitor General submitted that when the
accused is facing grave charges and when he entertains doubts of
possibility of his being conviction, there is a “flight risk”. It was
submitted that the appellant has wherewithal to flee away from the
country and prayed to refuse bail to the appellant on the ground of
“flight risk” also. We find no merit in the submission that the
appellant is a “flight risk” and there is possibility of his abscondence.
In the FIR registered on 15.05.2017, the High Court has granted
interim protection to the appellant on 31.05.2018 and the same was
in force till 20.08.2019 – the date on which the High Court dismissed
the appellant’s petition for anticipatory bail. Between 31.05.2018
and 20.08.2019, when the appellant was having interim protection,
the appellant did not file any application seeking permission to travel
abroad nor prior to the same after registration of FIR any attempt is
shown to have been made to flee. On behalf of the appellant, it is
21
stated that the appellant being the Member of Parliament and a
Senior Member of the Bar has strong roots in society and his
passport having been surrendered and “look out notice” issued
against him, there is no likelihood of his fleeing away from the
country or his abscondence from the trial. We find merit in the
submission of the learned Senior counsel for the appellant that the
appellant is not a “flight risk”; more so, when the appellant has
surrendered his passport and when there is a “lookout notice”
issued against the appellant.
28. So far as the allegation of possibility of influencing the
witnesses, the High Court referred to the arguments of the learned
Solicitor General which is said to have been a part of a “sealed
cover” that two material witnesses are alleged to have been
approached not to disclose any information regarding the appellant
and his son and the High Court observed that the possibility of
influencing the witnesses by the appellant cannot be ruled out. The
relevant portion of the impugned judgment of the High Court in para
(72) reads as under:-
“72. As argued by learned Solicitor General, (which is part of
‘Sealed Cover’, two material witnesses (accused) have been
approached for not to disclose any information regarding the
petitioner and his son (co-accused). This court cannot dispute the
fact that petitioner has been a strong Finance Minister and Home
22
Minister and presently, Member of Indian Parliament. He is
respectable member of the Bar Association of Supreme Court of
India. He has long standing in BAR as a Senior Advocate. He has
deep root in the Indian Society and may be some connection in
abroad. But, the fact that he will not influence the witnesses
directly or indirectly, cannot be ruled out in view of above facts.
Moreover, the investigation is at advance stage, therefore, this
Court is not inclined to grant bail.”
29. FIR was registered by the CBI on 15.05.2017. The appellant
was granted interim protection on 31.05.2018 till 20.08.2019. Till
the date, there has been no allegation regarding influencing of any
witness by the appellant or his men directly or indirectly. In the
number of remand applications, there was no whisper that any
material witness has been approached not to disclose information
about the appellant and his son. It appears that only at the time of
opposing the bail and in the counter affidavit filed by the CBI before
the High Court, the averments were made that “…..the appellant is
trying to influence the witnesses and if enlarged on bail, would
further pressurize the witnesses…..”. CBI has no direct evidence
against the appellant regarding the allegation of appellant directly or
indirectly influencing the witnesses. As rightly contended by the
learned Senior counsel for the appellant, no material particulars
were produced before the High Court as to when and how those
two material witnesses were approached. There are no details as
23
to the form of approach of those two witnesses either SMS, e-mail,
letter or telephonic calls and the persons who have approached the
material witnesses. Details are also not available as to when, where
and how those witnesses were approached.
30. The learned Solicitor General submitted that the statement of
witness ‘X’ who is said to have been approached not to disclose any
information regarding the appellant and his son, has been recorded
under Section 164 Cr.P.C. in which the said witness ‘X’ has made
the statement that he has been approached. Statement under
Section 164 Cr.P.C. of the said witness ‘X’ is said to have been
recorded on 15.03.2018. The said witness allegedly approached or
the other witnesses in a case of the present nature, cannot be said
to be a rustic or vulnerable witness who could be so easily
influenced; more so, when the allegations are said to be based on
documents. More particularly, there is no material to show that
the appellant or his men have been approaching the said witness so
as to influence the witness not to depose against the appellant or
his son.
31. It is to be pointed out that the respondent - CBI has filed
remand applications seeking remand of the appellant on various
dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019,
24
05.09.2019 and 19.09.2019 etc. In these applications, there were
no allegations that the appellant was trying to influence the
witnesses and that any material witnesses (accused) have been
approached not to disclose information about the appellant and his
son. In the absence of any contemporaneous materials, no weight
could be attached to the allegation that the appellant has been
influencing the witnesses by approaching the witnesses. The
conclusion of the learned Single Judge “…that it cannot be ruled out
that the petitioner will not influence the witnesses directly or
indirectly……” is not substantiated by any materials and is only a
generalised apprehension and appears to be speculative. Mere
averments that the appellant approached the witnesses and the
assertion that the appellant would further pressurize the witnesses,
without any material basis cannot be the reason to deny regular bail
to the appellant; more so, when the appellant has been in custody
for nearly two months, co-operated with the investigating agency
and the charge sheet is also filed.
32. The appellant is not a “flight risk” and in view of the conditions
imposed, there is no possibility of his abscondence from the trial.
Statement of the prosecution that the appellant has influenced the
witnesses and there is likelihood of his further influencing the
25
witnesses cannot be the ground to deny bail to the appellant
particularly, when there is no such whisper in the six remand
applications filed by the prosecution. The charge sheet has been
filed against the appellant and other co-accused on 18.10.2019.
The appellant is in custody from 21.08.2019 for about two months.
The co-accused were already granted bail. The appellant is said to
be aged 74 years and is also said to be suffering from age related
health problems. Considering the above factors and the facts and
circumstances of the case, we are of the view that the appellant is
entitled to be granted bail.
33. In the result, the impugned judgment dated 30.09.2019
passed by the High Court of Delhi in Bail Application No.2270 of
2019 is set aside and the appeal arising out of SLP(Crl.) No.9269 of
2019 is allowed. The appellant is ordered to be released on bail if
not required in any other case, subject to the condition of his
executing bail bonds for a sum of Rs.1,00,000/- with two sureties of
like sum to the satisfaction of the Special Judge (PC Act), CBI-06,
Patiala House Courts, New Delhi. The passport if already not
deposited, shall be deposited with the Special Court and the
appellant shall not leave the country without leave of the Special
Court and subject to the order that may be passed by the Special
26
Judge from time to time. The appellant shall make himself available
for interrogation as and when required. Consequently, the appeal
arising out of SLP(Crl.) No.9445 of 2019 preferred by the CBI
stands dismissed. Since the High Court, in the impugned judgment,
has expressed its views on the merits of the matter, the findings of
the High Court in the impugned judgment shall not have any
bearing either in the trial or in any other proceedings. It is made
clear that the findings in this judgment be construed as expression
of opinion only for the limited purpose of considering the regular bail
in CBI case and shall not have any bearing in any other
proceedings.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
………………………..J.
[HRISHIKESH ROY]
New Delhi;
October 22, 2019
27
