Former Union Minister and senior Congress leader P Chidambaram, who spent 106 days in custody following his arrest in two separate cases
related to the INX Media probe, was granted bail Wednesday by the Supreme Court in an alleged money laundering case registered by the Enforcement Directorate. He had earlier been granted bail in an alleged corruption case filed by the CBI.
The bench of Justices R Banumathi, A S Bopanna and Hrishikesh Roy, while directing Chidambaram to furnish a bail bond of Rs 2 lakh and two sureties of like amount, said he “shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused” and “shall not tamper with the evidence or attempt to intimidate or influence the witnesses”. He was also told to deposit his passport with the trial court and not leave the country without permission from the trial court judge.
At 8 pm, when he walked out of Tihar Jail where Youth Congress workers were waiting in numbers, Chidambaram said: “I cannot comment on the case. I’m going to obey the SC order and I will not comment on the case. But the fact is that after 106 days’ pre-trial incarceration, there is not a single charge framed against me as we speak to you now. Not one charge has been framed against me. I will speak all about that tomorrow.”
Son Karti Chidambaram, who had been waiting outside the jail since 5.30 pm, said: “I am of course very happy about this. This is a non-case, and nothing but vendetta politics… it’s been a long 106 days, 106 days of unnecessary incarceration and unwarranted 106 days of pre-trial remand. But I’m very glad that the Supreme Court has given relief and that he’s coming back home tonight.” He also tweeted that his father will be in Parliament Thursday.
Writing the bail order for the bench, Justice Bopanna said the ED argument that its investigation was still on and there was likelihood of the accused tampering with evidence “cannot be accepted on its face value” as “in the present situation the appellant is not in political power nor is he holding any post in the Government of the day so as to be in a position to interfere”.
In its order, the bench disapproved the practice of probe agencies filing reports in sealed covers, saying “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”.
Noting that the Supreme Court had denied Chidambaram anticipatory bail earlier and that he was available for custodial interrogation for more than 45 days, the bench said “if further investigation is to be made, the appellant would be bound to participate in such investigation as is required by the respondent”.
“Further, it is noticed that one of the co-accused has been granted bail by the High Court while the other coaccused is enjoying interim protection from arrest. The appellant is aged about 74 years, and as noted by the High Court itself in its order, the appellant has already suffered two bouts of illness during incarceration and was put on antibiotics and has been advised to take steroids of maximum strength.”
“In that circumstance, 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 or influencing/intimidating the witnesses. Taking these and all other facts and circumstances including the duration of custody into consideration, the appellant, in our considered view, is entitled to be granted bail,” the bench said.
On the ED contention that a witness had written a letter saying he did not want to be confronted with Chidambaram as he was from the same state, the bench said “the appellant cannot be held responsible for the same when there is no material to indicate that the appellant or anyone on his behalf had restrained or threatened the concerned witness who refused to be confronted with the appellant in custody”.
The ED had said that “inasmuch as three (3) witnesses have stated in their statements under section 50, recorded by the investigating agency, that the petitioner and his family members have pressurised them and have asked them not to appear before the Enforcement Directorate”.
Setting aside the November 15 order of the Delhi High Court dismissing his bail plea, the bench, however, agreed with the High Court on the point that the gravity of crime had to be factored while granting bail and that economic offences too could be classified as grave.
“One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed… such consideration… is a factor which is in addition to the triple test or the tripod test that would be normally applied.”
The triple test refers to the question whether the accused is likely to flee, whether he or she is likely to tamper with evidence or influence witnesses and whether attendance of the accused can be secured for trial.
The bench said “even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately, the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial”.
The order said that such being the case “it would be clear that 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”. It, however, added “we disapprove the manner in which the conclusions are recorded in paragraphs 57 to 62 wherein the observations are reflected to be in the nature of finding relating to the alleged offence”.
Senior advocates Kapil Sibal and A M Singhvi, appearing for Chidambaram, had alleged that these paragraphs were a reproduction of the contents of the ED affidavit filed before the High Court. Solicitor General Tushar Mehta, appearing for ED, had contested their contention, saying the High Court had arrived at the conclusion after examining the materials furnished by it in a sealed cover.
On this, the Supreme Court said “while the learned Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned Judge ought not to have recorded finding based on the materials produced in a sealed cover”.
The bench recalled that while granting bail to Chidambaram in the INX Media case registered by CBI, it “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”.
It said “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 agency had asked the Supreme Court to peruse the materials and submitted the same in a sealed cover. This was opposed by Chidambaram’s lawyers.
In its order, the bench said that “in present circumstance, we were not very much inclined to open the sealed cover although the materials in sealed cover was received from the respondent. However, since the learned Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for us to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent”.
It said “on perusal we have taken note that the statements of persons concerned have been recorded and the details collected have been collated. The recording of statements and the collation of material is 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. Except for recording the same, we do not wish to advert to the documents any further since ultimately, these are allegations which would have to be established in the trial wherein the accused/co-accused would have the opportunity of putting forth their case, if any, and an ultimate conclusion would be reached. Hence in our opinion, the finding recorded by the learned Judge of the High Court based on the material in sealed cover is not justified”.
The bench “made clear that the observations contained touching upon the merits either in the order of the High Court or in this order shall not be construed as an opinion expressed on merits and all contentions are left open to be considered during the course of trial”.