SHRI P. CHIDAMBARAM versus CENTRAL BUREAU OF INVESTIGATION

SHRI P. CHIDAMBARAM

CENTRAL BUREAU OF INVESTIGATION

(Criminal Appeal No. 1603 of 2019)

OCTOBER 22, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

Bail:

Grant or refusal of – Case registered by CBI againstappellant–member of parliament and Senior member, u/s. 120B rws. 420 IPC, ss. 8, 13(2) rw s. 13(1)(d) of the Prevention of CorruptionAct, 1988 – Arrest of the appellant and since then appellant incustody – Bail application – High Court declined regular bail toappellant – On appeal, held: Appellant is not “flight risk” and inview of the conditions imposed, there is no possibility of hisabscondence from the trial – Statement of the prosecution that theappellant has influenced the witnesses and there is likelihood ofhis further influencing the witnesses cannot be the ground to denybail to the appellant particularly, when there is no such indicationin the remand applications filed by the prosecution – Charge sheethas been filed against the appellant and other co-accused –Appellant is in custody for about two months whereas co-accusedwere already granted bail – Appellant is said to be aged 74 yearsand is also said to be suffering from age related health problems –In view thereof, the appellant entitled to be granted bail.

Grant or refusal of – Factors to be considered – Stated.

Judgment/order: Order granting or refusing bail – Reasonedorder – Necessity of – Held: Recording of reasons is necessarysince the accused/prosecution/victim has every right to know thereasons for grant or refusal to grant bail – It would help theappellate court to appreciate and consider the reasonings for grantor refusal of bail – At the stage of granting bail, an elaborateexamination of evidence and detailed reasons touching upon themerit of the case, should be avoided.

AAllowing the Criminal Appeal No. 1603/19 and dismissingCriminal Appeal No. 1605/19, the Court

HELD: 1.1 Expression of prima facie reasons for grantingor refusing to grant bail is requirement of law especially wheresuch bail orders are appealable so as to indicate application ofBmind to the matter under consideration and the reasons forconclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grantor refusal to grant bail. This will also help the appellate court toappreciate and consider the reasonings for grant or refusal togrant bail. But giving reasons for exercise of discretion in grantingCor refusing to grant bail is different from discussing the merits ordemerits of the case. At the stage of granting bail, an elaborateexamination of evidence and detailed reasons touching upon themerit of the case, which may prejudice the accused, should beavoided. Observing that at the stage of granting bail, detailedDexamination of evidence and elaborate documentation of themerits of the case should be avoided. [Para 17][997-G-H; 998-A-B]1.2 The jurisdiction to grant bail has to be exercised on thebasis of the well–settled principles having regard to the facts andEcircumstances of each case. The following factors are to be takeninto consideration while considering an application for bail:– thenature of accusation and the severity of the punishment in thecase of conviction and the nature of the materials relied upon bythe prosecution; reasonable apprehension of tampering with thewitnesses or apprehension of threat to the complainant or theFwitnesses; reasonable possibility of securing the presence of theaccused at the time of trial or the likelihood of his abscondence;character behaviour and standing of the accused and thecircumstances which are peculiar to the accused; larger interestof the public or the State and similar other considerations. ThereGis no hard and fast rule regarding grant or refusal to grant bail.Each case has to be considered on the facts and circumstances ofeach case and on its own merits. The discretion of the court hasto be exercised judiciously and not in an arbitrary manner. Itcannot be said that “flight risk” of economic offenders should be

looked at as national phenomenon and be dealt with in thatmanner merely because certain other offenders have flown outof the country. The same cannot be put in straight–jacket formulaso as to deny bail to the one who is before the Court, due to theconduct of other offenders, if the person under consideration isotherwise entitled to bail on the merits of his own case. Hence,such consideration including as to “flight risk” is to be made onindividual basis being uninfluenced by the unconnected cases,more so, when the personal liberty is involved. [Para 22][999-F-H; 1000-A-C]

Kalyan Chandra Sarkar v. Rajesh Ranjan and another(2004) 7 SCC 528; Jayendra Saraswathi Swamigal v.State of Tamil Nadu (2005) 2 SCC 13 : [2005] 1 SCR160; State of U.P. through CBI v. Amarmani Tripathi(2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454 – referredto.

2.1 In the instant case, in the impugned judgment, paras(51) to (70) relate to the findings on the merits of the prosecutioncase. At the stage of considering the application for bail, detailedexamination of the merits of the prosecution case and the meritsor demerits of the materials relied upon by the prosecution, shouldbe avoided. It is therefore, made clear that the findings of theHigh Court in the said paras be construed as expression of opiniononly for the purpose of refusal to grant bail and the same shallnot in any way influence the trial or other proceedings. [Para18][998-D-E]

2.2 In the impugned judgment, the High Court mainlyfocussed on the nature of the allegations and the merits of thecase; but the High Court did not keep in view the well–settledprinciples for grant or refusal to grant bail. [Para 25][1001-H;1002-A][1001-H; 1002-A]

2.3 Insofar as the “flight risk” and “tampering withevidence” are concerned, the High Court held in favour of theappellant by holding that the appellant is not “flight risk” i.e.“no possibility of his abscondence”. The High Court rightly heldthat by issuing certain directions like “surrender of passport”,“issuance of look out notice”, “flight risk” can be secured. Sofar as “tampering with evidence” is concerned, the High Court

Arightly held that the documents relating to the case are in thecustody of the prosecuting agency, Government of India and theCourt and there is no chance of the appellant tampering withevidence. [Para 26][1002-B-C]

2.4 In the FIR registered on 15.05.2017, the High CourtBhas granted interim protection to the appellant on 31.05.2018and the same was in force till 20.08.2019-the date on which theHigh Court dismissed the appellant’s petition for anticipatory bail.Between 31.05.2018 and 20.08.2019, when the appellant washaving interim protection, the appellant did not file any applicationseeking permission to travel abroad nor prior to the same afterCregistration of FIR any attempt is shown to have been made toflee. It is stated that the appellant being the Member of Parliamentand Senior Member of the Bar has strong roots in society andhis passport having been surrendered and “look out notice”issued against him, there is no likelihood of his fleeing away fromDthe country or his abscondence from the trial. It is accepted thatthe appellant is not “flight risk”; more so, when the appellanthas surrendered his passport and when there is “lookout notice”issued against the appellant. [Para 27][1002-E-G]

2.5 So far as the allegation of possibility of influencing theEwitnesses, the High Court referred to the submissions of theSolicitor General which is said to have been part of “sealedcover” that two material witnesses are alleged to have beenapproached not to disclose any information regarding theappellant and his son and the High Court observed that thepossibility of influencing the witnesses by the appellant cannotFbe ruled out. [Para 28][1002-H; 1003-A-B]

2.6 FIR was registered by the CBI on 15.05.2017. Theappellant was granted interim protection on 31.05.2018 till20.08.2019. Till the date, there has been no allegation regardinginfluencing of any witness by the appellant or his men directly orGindirectly. In the number of remand applications, there was nowhisper that any material witness has been approached not todisclose information about the appellant and his son. It appearsthat only at the time of opposing the bail and in the counter affidavit

filed by the CBI before the High Court, the averments were madethat the appellant is trying to influence the witnesses and ifenlarged on bail, would further pressurize the witnesses. CBIhas no direct evidence against the appellant regarding theallegation of appellant directly or indirectly influencing thewitnesses. No material particulars were produced before the HighCourt as to when and how those two material witnesses wereapproached. There are no details as to the form of approach ofthose two witnesses either SMS, e–mail, letter or telephonic callsand the persons who have approached the material witnesses.Details are also not available as to when, where and how thosewitnesses were approached. [Para 29][1003-E-H]

2.7 Statement u/s. 164 CrPC of the witness ‘X’ is said tohave been recorded. The said witness allegedly approached orthe other witnesses in case of the instant nature, cannot be saidto be rustic or vulnerable witness who could be so easilyinfluenced; more so, when the allegations are said to be basedon documents. More particularly, there is no material to showthat the appellant or his men have been approaching the saidwitness so as to influence the witness not to depose against theappellant or his son. [Para 30][1004-A-C]2.8 The respondent-CBI has filed remand applicationsseeking remand of the appellant on various dates. In theseapplications, there were no allegations that the appellant wastrying to influence the witnesses and that any material witnesses(accused) have been approached not to disclose information aboutthe appellant and his son. In the absence of any contemporaneousmaterials, no weight could be attached to the allegation that theappellant has been influencing the witnesses by approaching thewitnesses. The conclusion of the Single Judge that it cannot beruled out that the petitioner will not influence the witnessesdirectly or indirectly is not substantiated by any materials and isonly generalised apprehension and appears to be speculative.Mere averments that the appellant approached the witnessesand the assertion that the appellant would further pressurize thewitnesses, without any material basis cannot be the reason to

Adeny regular bail to the appellant; more so, when the appellanthas been in custody for nearly two months, co–operated with theinvestigating agency and the charge sheet is also filed. [Para31][1004-D-F]

2.9 The appellant is not “flight risk” and in view of theBconditions imposed, there is no possibility of his abscondencefrom the trial. Statement of the prosecution that the appellanthas influenced the witnesses and there is likelihood of his furtherinfluencing the witnesses cannot be the ground to deny bail tothe appellant particularly, when there is no such whisper in thesix remand applications filed by the prosecution. The charge sheetChas been filed against the appellant and other co-accused. Theappellant is in custody for about two months. The co-accusedwere already granted bail. The appellant is said to be aged 74years and is also said to be suffering from age related healthproblems. Considering the said factors and the facts andDcircumstances of the case, the appellant is entitled to be grantedbail. [Para 32][1004-G-H; 1005-A]

Mahender Chawla and others v. Union of India andothers (2018) 15 SCALE 497; Niranjan Singh andanother v. Prabhakar Rajaram Kharote and othersE(1980) 2 SCC 559 : [1980] 3 SCR 15; Puran v.Rambilas and another (2001) 6 SCC 338 : [2001] 3SCR 432; Prahlad Singh Bhati v. NCT, Delhi andanother (2001) 4 SCC 280 : [2001] 2 SCR 684–referred to.

SHRI P. CHIDAMBARAM v. CENTRAL BUREAUOF INVESTIGATION

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1603 of 2019.

From the Judgment and Order dated 30.09.2019 of the High Courtof Delhi at New Delhi in Bail Application No. 2270 of 2019.

With

Criminal Appeal No. 1605 of 2019.

Tushar Mehta, SG, K. M. Nataraj, ASG, Kapil Sibal, Dr. AbhishekManu Singhvi, Ms. Sonia Mathur, Sr. Advs., Arshdeep Singh Khurana,Kunal Vajani, Amit Bhandari, Hitesh Rai, Akshat Gupta, Ayush Agarwal,Karan Gogna, Aamir Khan, Aman Singh Brar, Akshay Sahni, Ms. PallaviLangar Amit Mahajan, Rajat Nair, Kanu Agrawal, Shantnu Sharma,Varun Chugh, Rajiv Ranjan, Bhuvan Kapoor, A. K. Sharma, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. These appeals arise out of the impugned judgment dated30.09.2019 passed by the High Court of Delhi in Bail Application No.2270of 2019 in and by which the High Court refused to grant bail to theappellant in the case registered by the respondent-Central Bureau ofInvestigation (CBI) under Section 120B IPC read with Section 420 IPC,Section 8 and Section 13(2) read with Section 13(1)(d) of the Preventionof Corruption Act, 1988.

3. This appeal relates to the alleged irregularities in ForeignInvestment Promotion Board (FIPB) clearance given to the INX Mediafor receiving foreign investment to the tune of Rs.305 crores againstapproved inflow of Rs.4.62 crores. Briefly stated case of the prosecutionas per the FIR is as under:- In 2007, INX Media Pvt. Ltd. approachedForeign Investment Promotion Board (FIPB) seeking approval forFDI upto 46.216 per cent of the issued equity capital. While sending theproposal by INX Media to be placed before the FIPB, INX Media hadclearly 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 meetingheld on 18.05.2007 recommended the proposal of INX Media subject tothe approval of the Finance Minister-the appellant. In the meeting, the

ABoard did not approve the downstream investment by INX Media inINX News. INX Media committed violation of the recommendation ofFIPB and the conditions of the approval as:- (i) INX Media deliberatelymade downstream investment to the extent of 26% in the capital ofINX News Ltd. without specific approval of FIPB which included indirectBforeign investment by the same Foreign Investors; (ii) generated morethan Rs.305 crores FDI in INX Media which is in clear violation of theapproved foreign flow of Rs.4.62 crores by issuing shares to the foreigninvestors at premium of more than Rs.800/- per share.

4. Upon receipt of complaint on the basis of cheque for anCamount of Rs.10,00,000/- made in favour of M/s Advantage StrategicConsulting Private Limited (ASCPL) by INX Media, the investigationwing of the Income Tax Department proceeded to investigate the matterand 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 hasDbeen approved and that the same was made in accordance with theapproval of FIPB. It is alleged by the prosecution that in order to get outof the situation without any penal provision, INX Media entered into acriminal conspiracy with Sh. Karti Chidambaram, Promoter Director,Chess Management Services Pvt. Ltd. and the appellant-the then FinanceEMinister of India. INX Media through the letter dated 26.06.2008 triedto justify their action stating that the downstream investment has beenapproved and the same was made in accordance with approval.

5. It is alleged that INX Media Group in its record has clearlymentioned the purpose of payment of Rs.10,00,000/- to ASCPL asFtowards “management consultancy charges towards FIPB notificationand clarification”. The FIR further alleges that for the services renderedby Sh. Karti Chidambaram to INX Media through Chess ManagementServices in getting the issues scuttled by influencing the public servantsof FIPB unit of the Ministry of Finance, consideration in the form of

payments were received against invoices raised on INX Media byGASCPL. It is further alleged that the very reason for getting the invoicesraised in the name of ASCPL for the services rendered by ChessManagement Services was with view to conceal the identity of Sh.Karti Chidambaram. It is stated that Sh. Karti Chidambaram was thePromoter, Director of Chess Management Services whereas ASCPLHwas being controlled by him indirectly. It is alleged that the invoices

approximately for an amount of Rs.3.50 crores were falsely got raisedin favour of INX Media in the name of other companies in which Sh.Karti Chidambaram was having sustainable interest either directly orindirectly. It is alleged that such invoices were falsely got raised forcreation of acquisition of media content, consultancy in respect of marketresearch, acquisition of content of various genre of Audio-Video etc.Alleging that the above acts of omission and commission prima faciedisclose commission of offence, on 15.05.2017, CBI registered FIR inRC No.220/2017-E-0011 under Section 120B IPC read with Section420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of thePrevention of Corruption Act, 1988 against the accused viz. (i) INXMedia through its Director Indrani Mukherjea; (ii) INX News throughits Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii)Sh. Karti P. Chidambaram; (iv) Chess Management Services throughits Director Sh. Karti P. Chidambaram and others; (v) Advantage StrategicConsulting through its Director Ms. Padma Vishwanathan @ PadmaBhaskararaman and others; (vi) unknown officers/officials of Ministryof Finance, Govt. of India; and (vii) other unknown persons for the allegedirregularities in giving FIPB’s clearance to INX Media to receive overseasfunds of Rs.305 crores against approved Foreign Direct Investment (FDI)of Rs.4.62 crores.

6. Apprehending arrest, the appellant filed petition under Section438 Cr.P.C. before the High Court seeking anticipatory bail. Vide orderdated 31.05.2018, the High Court granted interim protection to theappellant and the said interim protection continued till 20.08.2019. Bythe order dated 20.08.2019, the High Court dismissed the application foranticipatory bail to the appellant. Challenging the order declininganticipatory bail to the appellant, SLP(Crl.) No.7525 of 2019 waspreferred by the appellant before the Supreme Court on 21.08.2019. Inthe meanwhile, the appellant was arrested by the CBI on the night of21.08.2019 and the appellant has been in custody since then. Since theappellant was arrested in connection with CBI case, the appellant’s SLPbeing SLP(Crl.) No.7525 of 2019 was dismissed as infructuous. Insofaras the case registered by Enforcement Directorate, SLP(Crl.) No.7523of 2019 was dismissed by this Court refusing to grant anticipatory bail tothe appellant by detailed order dated 05.09.2019. In the present case,we are concerned only with the case registered by the respondent-CBIin RC No.220/2017-E-0011.

A7. The High Court by its impugned judgment dated 30.09.2019refused to grant regular bail to the appellant and dismissed the bailapplication. Before the High Court, three contentions were raised by therespondent-CBI:- (i) flight risk; (ii) tampering with evidence; and (iii)influencing witnesses. The learned Single Judge did not accept theobjection relating to “flight risk” and “tampering with evidence”. InsofarBas the objection of “flight risk” is concerned, the High Court held thatthe appellant was not “flight risk” and it was observed that by issuingcertain directions like “surrender of passport”, “issuance of look-outnotice” and such other directions, “flight risk” can be secured. So far asthe objection of “tampering with evidence”, the High Court held that theCdocuments relating to the present case are in the custody of theprosecuting agency, Government of India and the Court and therefore,there is no possibility of the appellant tampering with the evidence. Buton the third count i.e. “influencing the witnesses”, the High Court heldthat the investigation was in an advance stage and the possibility of theappellant influencing the witnesses cannot be ruled out.D

8. The appellant has challenged the impugned judgment denyingbail to him on the court’s apprehension that he is likely to influence thewitnesses. So far as the findings of the High Court on two counts namely“flight risk” and “tampering with evidence” holding in favour of theappellant, CBI has filed SLP(Crl.) No.9445 of 2019.E

9. Mr. Kapil Sibal, learned Senior counsel for the appellant hassubmitted that the High Court erred in dismissing the bail application onmere apprehension that the appellant is likely to influence the witnessesand there is no supporting material on the possibility of the appellant ofinfluencing the witnesses. Learned Senior counsel further submitted thatFthe reference to the two material witnesses (accused) having beenapproached not to disclose information regarding the appellant and hisson, is not supported by any material and the same lacks materialparticulars and no credibility could be given to the allegations given in asealed cover. It was further submitted that the learned Single Judge didGnot appreciate that in various remand applications filed by the respondent,there was no allegation that any material witnesses (accused) havingbeen approached not to disclose information about the appellant and hisson and the above allegation has been made as an afterthought in asealed cover only to prejudice the grant of bail to the appellant. Thelearned Senior counsel submitted that the appellant was interrogated by

the CBI only once though the CBI had taken appellant’s custody fornumber of days.

10. Dr. A.M. Singhvi, learned Senior counsel submitted that “bailis rule and jail is an exception” and this well-settled position has notbeen kept in view by the High Court. The learned Senior counsel submittedthat bail was denied to the appellant based on what was given in sealedcover and submitted “that the apprehension of CBI-possibility ofinfluencing the witnesses” is an afterthought. Placing reliance uponMahender Chawla and others v. Union of India and others 2018(15) SCALE 497, the learned Senior counsel submitted that if reallythe appellant approached the witnesses so as to influence them, theprosecution could have taken steps and sought for protection of thewitnesses as per the “witnesses protection scheme” laid down inMahender Chawla’s case. The learned Senior counsel further submittedthat all other accused are on bail and there is no justifiable reason todeny bail to the appellant. It is also contended that now the charge sheethas been filed and it does not indicate that tampering with evidence orintimidating witness is charge but the allegation is continued to bemade based on something unilaterally recorded and produced in sealedcover before the High Court which was only to prejudice the mind of theCourt.11. So far as the cross appeal filed by the CBI, the learned Seniorcounsel for the appellant submitted that after the anticipatory bail wasrefused to the appellant by the High Court on 20.08.2019, the appellantapproached the Supreme Court for urgent hearing on the very same dayi.e. on 20.08.2019 and made mention before the Senior Judge on21.08.2019 who had directed the matter be listed for urgent hearingafter placing the matter before Hon’ble the Chief Justice of India andthereafter, the matter was listed on 23.08.2019. The learned Seniorcounsel submitted that on 20.08.2019 and 21.08.2019, the appellant hadconsultation with his lawyers and was preparing the matter for filingSLP and there was no question of his abscondence. It is submitted thatthe appellant thereafter addressed press conference and then proceededto his own house from where he was arrested. It was submitted that theappellant had thus not even attempted to conceal himself or evade theprocess of law. It was contended that the FIR is of 2017 and the appellanthas not left the country ever since, instead he had joined the investigationand co-operated with the investigating agency. It was further submitted

Athat the appellant being Member of Parliament and Senior Memberof the Bar, there is no question of “flight risk” and the High Court rightlyheld in favour of the appellant on two counts viz. “flight risk” and“tampering with evidence”.

12. Mr. Tushar Mehta, learned Solicitor General submitted thatBwhile considering the bail application, the court should look into the gravityof the offence and that the possibility of the accused apprehending hisconviction fleeing the country and since many economic offenders havefled from the country and the nation is facing this problem of the“economic offenders fleeing the country”. It was submitted that thesecond test is to find out whether the accused has wherewithal to fleeCthe country and possessing resources and capacity to settle abroad. Itwas contended that the respondent-CBI has definite material to showthat the “witness was influenced” and in order to prevent furtherpossibility of influence and the vulnerability of the witness, the identityand the statement of the said witness cannot be shared with the accused.DIt was submitted that the statement of the said witness that he wasbeing approached not to disclose any information regarding the appellantand his son, was produced before the High Court in sealed cover andbased upon the same, the High Court rightly refused to grant bail on theground of “likelihood of influencing the witnesses”. The learned SolicitorEGeneral submitted that “likelihood of influencing the witness” is not amere apprehension but based upon material and there is serious dangerof 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 chargeFsheet has been filed on 18.10.2019 against the appellant and his son Sh.Karti Chidambaram and others including the officials under Section 120BIPC read with Section 420 IPC, Sections 468 and 471 IPC and underSection 9 and 13(2) read with Section 13(1)(d) of the Prevention ofCorruption Act. It was submitted that the investigation qua INX is largelyover and the investigation reveals that more companies are involved andGthe investigation qua other companies are going on and if the appellant isgranted bail at this stage, it would prejudicially affect the further courseof investigation. The learned Solicitor General therefore prayed fordismissal of the appeal filed by the appellant accused and allow theappeal filed by the CBI.

14. We have carefully considered the contentions and perusedthe impugned judgment and materials on record. The question falling forconsideration is when other factors i.e. “flight risk” and “tampering withevidence” are held in favour of the appellant, whether the High Courtwas justified in declining regular bail to the appellant on the apprehensionthat there is possibility that the appellant might influence the witnesses.

15. The learned Senior counsel for the appellant submitted that inthe High Court, the appellant made submission limited to the applicabilityof the certain “Press Note” and the correctness of the decision taken byFIPB and the Finance Ministry only to show prima facie for the purposeof grant of bail and to show that the allegations against the appellant areunfounded and incorrect. It was submitted that the learned Single Judgeeven before the charges being framed and trial being held, had gone intothe merits and demerits of the allegations against the appellant andrendered conclusive findings on the merits merely based on the allegationsitself causing serious prejudice to the appellant and his defence in theimpending trial and the impugned judgment passed by the High Court iscompletely contrary to the law laid down by the Supreme Court. Insupport of this contention, the learned Senior counsel placed relianceupon Niranjan Singh and another v. Prabhakar Rajaram Kharoteand others (1980) 2 SCC 559.

16. Refuting the said contentions, the learned Solicitor Generalsubmitted 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 thecourt has to indicate reasons for prima facie concluding as to why bailwas granted or refused. In support of his contention, the learned SolicitorGeneral placed reliance upon Kalyan Chandra Sarkar v. RajeshRanjan and another (2004) 7 SCC 528 and Puran v. Rambilas andanother (2001) 6 SCC 338. It was contended that the findings recordedby the learned Single Judge is only to record prima facie finding indicatingas to why bail was not granted and the reasonings cannot be said to betouching upon the merits of the case.

17. Expression of prima facie reasons for granting or refusing togrant bail is requirement of law especially where such bail orders areappealable so as to indicate application of mind to the matter underconsideration and the reasons for conclusion. Recording of reasons isnecessary since the accused/prosecution/victim has every right to knowthe reasons for grant or refusal to grant bail. This will also help the

Aappellate court to appreciate and consider the reasonings for grant orrefusal to grant bail. But giving reasons for exercise of discretion ingranting or refusing to grant bail is different from discussing the meritsor demerits of the case. At the stage of granting bail, an elaborateexamination of evidence and detailed reasons touching upon the merit ofthe case, which may prejudice the accused, should be avoided. ObservingBthat “at the stage of granting bail, detailed examination of evidence andelaborate documentation of the merits of the case should be avoided”, inNiranjan Singh, it was held as under:-

“3. ..…Detailed examination of the evidence and elaboratedocumentation of the merits should be avoided while passing ordersCon bail applications. No party should have the impression that hiscase has been prejudiced. To be satisfied about prima faciecase is needed but it is not the same as an exhaustive explorationof the merits in the order itself.”

18. In the present case, in the impugned judgment, paras (51) toD(70) relate to the findings on the merits of the prosecution case. Asdiscussed earlier, at the stage of considering the application for bail,detailed examination of the merits of the prosecution case and the meritsor demerits of the materials relied upon by the prosecution, should beavoided. It is therefore, made clear that the findings of the High Court inEparas (51) to (70) be construed as expression of opinion only for thepurpose of refusal to grant bail and the same shall not in any way influencethe trial or other proceedings.

19. The learned Senior counsel for the appellant has taken usthrough the dates and events and submitted that in the EnforcementFDirectorate’s case after the dismissal of the appeal by the SupremeCourt refusing to grant anticipatory bail, immediately the appellant soughtto surrender in the Enforcement Directorate’s case; but the same wasobjected to by the Enforcement Directorate and the Department hassought to arrest the appellant subsequently only on 11.10.2019 and theinvestigating agencies are prejudicially acting against the appellant toGensure that the appellant is not released on bail and continues to languishin custody.

20. Refuting the said contention of the appellant that theinvestigating agencies-CBI and Enforcement Directorate are bent uponprolonging the custody of the appellant, the learned Solicitor GeneralH

submitted that after the anticipatory bail was dismissed by the SupremeCourt in Criminal Appeal No.1340 of 2019 on 5.09.2019, the appellanthas filed the petition to surrender in the Enforcement Directorate’s caseon 05.09.2019 itself and the Enforcement Directorate objected to thesurrender of the appellant. The learned Solicitor General submitted thatthe Enforcement Directorate wanted to take custody of the appellant inthe Enforcement Directorate’s case only after examination of witnessesand collecting relevant materials. It was submitted that between06.09.2019 and 09.10.2019, twelve witnesses were examined andthereafter, the Enforcement Directorate filed an application on 11.10.2019seeking permission to arrest the appellant in connection with EnforcementDirectorate’s case and thereafter, application for custodial interrogationof the appellant was filed and the Enforcement Directorate has takenthe appellant to custody for interrogation for seven days (vide orderdated 17.10.2019). It was therefore contended that no motive could beattributed to the investigating agency be it CBI or Enforcement Directorateon the timing of their action in the case against the appellant.

21. In this appeal, we are only concerned with the question ofgrant of bail or otherwise to the appellant in the CBI case. We havereferred to the submission of learned Senior counsel for the appellantand learned Solicitor General only for the sake of completion of thesequence of the contentions raised. Since the matter pertaining toEnforcement Directorate is pending before the concerned court, we arenot expressing any opinion on the merits of the rival contention; lest itmight prejudice the parties in the appropriate proceedings.22. The jurisdiction to grant bail has to be exercised on the basisof the well-settled principles having regard to the facts and circumstancesof each case. The following factors are to be taken into considerationwhile considering an application for bail:- (i) the nature of accusationand the severity of the punishment in the case of conviction and thenature of the materials relied upon by the prosecution; (ii) reasonableapprehension of tampering with the witnesses or apprehension of threatto the complainant or the witnesses; (iii) reasonable possibility of securingthe presence of the accused at the time of trial or the likelihood of hisabscondence; (iv) character behaviour and standing of the accused andthe circumstances which are peculiar to the accused; (v) larger interestof the public or the State and similar other considerations (vide PrahladSingh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is

Ano hard and fast rule regarding grant or refusal to grant bail. Each casehas to be considered on the facts and circumstances of each case andon its own merits. The discretion of the court has to be exercisedjudiciously and not in an arbitrary manner. At this stage itself, it isnecessary for us to indicate that we are unable to accept the contentionof the learned Solicitor General that “flight risk” of economic offendersBshould be looked at as national phenomenon and be dealt with in thatmanner merely because certain other offenders have flown out of thecountry. The same cannot, in our view, be put in straight-jacket formulaso as to deny bail to the one who is before the Court, due to the conductof other offenders, if the person under consideration is otherwise entitledCto bail on the merits of his own case. Hence, in our view, suchconsideration including as to “flight risk” is to be made on individualbasis being uninfluenced by the unconnected cases, more so, when thepersonal liberty is involved.

23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and anotherD(2004) 7 SCC 528, it was held as under:-

“11. The law in regard to grant or refusal of bail is very wellsettled. The court granting bail should exercise its discretion in ajudicious manner and not as matter of course. Though at thestage of granting bail detailed examination of evidence andEelaborate documentation of the merit of the case need not beundertaken, there is need to indicate in such orders reasons forprima facie concluding why bail was being granted particularlywhere the accused is charged of having committed seriousoffence. Any order devoid of such reasons would suffer fromnon-application of mind. It is also necessary for the court grantingFbail to consider among other circumstances, the following factorsalso before granting bail; they are:

(a) The nature of accusation and the severity of punishment incase of conviction and the nature of supporting evidence.

G(b) Reasonable apprehension of tampering with the witness orapprehension 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) 3SCC 598 and Puran v. Rambilas (2001) 6 SCC 338.)

Referring to the factors to be taken into consideration for grant ofbail, 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 courtin granting bail in non-bailable offences have been explained bythis Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 andGurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 andbasically they are — the nature and seriousness of the offence;the character of the evidence; circumstances which are peculiarto the accused; reasonable possibility of the presence of theaccused not being secured at the trial; reasonable apprehensionof witnesses being tampered with; the larger interest of the publicor the State and other similar factors which may be relevant inthe facts and circumstances of the case……”24. After referring para (11) of Kalyan Chandra Sarkar, in Stateof U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it washeld as under:-

“18. It is well settled that the matters to be considered in anapplication for bail are (i) whether there is any prima facie orreasonable ground to believe that the accused had committed theoffence; (ii) nature and gravity of the charge; (iii) severity of thepunishment in the event of conviction; (iv) danger of the accusedabsconding or fleeing, if released on bail; (v) character, behaviour,means, position and standing of the accused; (vi) likelihood ofthe offence being repeated; (vii) reasonable apprehension ofthe witnesses being tampered with; and (viii) danger, of course,of justice being thwarted by grant of bail [see Prahlad SinghBhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v.State (Delhi Admn.) (1978) 1 SCC 118]. While vague allegationthat the accused may tamper with the evidence or witnesses maynot be ground to refuse bail, if the accused is of such characterthat his mere presence at large would intimidate the witnesses orif there is material to show that he will use his liberty to subvertjustice or tamper with the evidence, then bail will berefused……..”.

25. In the light of the above well-settled principles, let us considerthe present case. At the outset, it is to be pointed out that in the impugned

Ajudgment, the High Court mainly focussed on the nature of the allegationsand the merits of the case; but the High Court did not keep in view thewell-settled principles for grant or refusal to grant bail.

26. As discussed earlier, insofar as the “flight risk” and “tamperingwith evidence” are concerned, the High Court held in favour of theBappellant by holding that the appellant is not “flight risk” i.e. “nopossibility of his abscondence”. The High Court rightly held that by issuingcertain directions like “surrender of passport”, “issuance of look outnotice”, “flight risk” can be secured. So far as “tampering with evidence”is concerned, the High Court rightly held that the documents relating toCthe case are in the custody of the prosecuting agency, Government ofIndia and the Court and there is no chance of the appellant tamperingwith evidence.

27. The learned Solicitor General submitted that when the accusedis facing grave charges and when he entertains doubts of possibility ofDhis being conviction, there is “flight risk”. It was submitted that theappellant has wherewithal to flee away from the country and prayed torefuse bail to the appellant on the ground of “flight risk” also. We find nomerit in the submission that the appellant is “flight risk” and there ispossibility of his abscondence. In the FIR registered on 15.05.2017, theHigh Court has granted interim protection to the appellant on 31.05.2018Eand the same was in force till 20.08.2019 – the date on which the HighCourt dismissed the appellant’s petition for anticipatory bail. Between31.05.2018 and 20.08.2019, when the appellant was having interimprotection, the appellant did not file any application seeking permissionto travel abroad nor prior to the same after registration of FIR any attemptFis shown to have been made to flee. On behalf of the appellant, it isstated that the appellant being the Member of Parliament and SeniorMember of the Bar has strong roots in society and his passport havingbeen surrendered and “look out notice” issued against him, there is nolikelihood of his fleeing away from the country or his abscondence fromthe trial. We find merit in the submission of the learned Senior counselGfor the appellant that the appellant is not “flight risk”; more so, whenthe appellant has surrendered his passport and when there is “lookoutnotice” 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 GeneralH

which is said to have been part of “sealed cover” that two materialwitnesses are alleged to have been approached not to disclose anyinformation regarding the appellant and his son and the High Courtobserved that the possibility of influencing the witnesses by the appellantcannot be ruled out. The relevant portion of the impugned judgment ofthe 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 beenapproached for not to disclose any information regarding thepetitioner and his son (co-accused). This court cannot dispute thefact that petitioner has been strong Finance Minister and HomeMinister and presently, Member of Indian Parliament. He isrespectable member of the Bar Association of Supreme Court ofIndia. He has long standing in BAR as Senior Advocate. Hehas deep root in the Indian Society and may be some connectionin abroad. But, the fact that he will not influence the witnessesdirectly or indirectly, cannot be ruled out in view of above facts.Moreover, the investigation is at advance stage, therefore, thisCourt is not inclined to grant bail.”

29. FIR was registered by the CBI on 15.05.2017. The appellantwas granted interim protection on 31.05.2018 till 20.08.2019. Till thedate, there has been no allegation regarding influencing of any witnessby the appellant or his men directly or indirectly. In the number of remandapplications, there was no whisper that any material witness has beenapproached not to disclose information about the appellant and his son.It appears that only at the time of opposing the bail and in the counteraffidavit filed by the CBI before the High Court, the averments weremade that “…..the appellant is trying to influence the witnesses and ifenlarged on bail, would further pressurize the witnesses…..”. CBI hasno direct evidence against the appellant regarding the allegation ofappellant directly or indirectly influencing the witnesses. As rightlycontended by the learned Senior counsel for the appellant, no materialparticulars were produced before the High Court as to when and howthose two material witnesses were approached. There are no details asto the form of approach of those two witnesses either SMS, e-mail,letter or telephonic calls and the persons who have approached thematerial witnesses. Details are also not available as to when, where andhow those witnesses were approached.

A30. The learned Solicitor General submitted that the statement ofwitness ‘X’ who is said to have been approached not to disclose anyinformation regarding the appellant and his son, has been recorded underSection 164 Cr.P.C. in which the said witness ‘X’ has made the statementthat he has been approached. Statement under Section 164 Cr.P.C. ofthe said witness ‘X’ is said to have been recorded on 15.03.2018. TheBsaid witness allegedly approached or the other witnesses in case ofthe present nature, cannot be said to be rustic or vulnerable witnesswho could be so easily influenced; more so, when the allegations aresaid to be based on documents. More particularly, there is no materialto show that the appellant or his men have been approaching the saidCwitness so as to influence the witness not to depose against the appellantor his son.31. It is to be pointed out that the respondent - CBI has filedremand applications seeking remand of the appellant on various datesviz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 andD19.09.2019 etc. In these applications, there were no allegations that theappellant was trying to influence the witnesses and that any materialwitnesses (accused) have been approached not to disclose informationabout the appellant and his son. In the absence of any contemporaneousmaterials, no weight could be attached to the allegation that the appellanthas been influencing the witnesses by approaching the witnesses. TheEconclusion of the learned Single Judge “…that it cannot be ruled outthat the petitioner will not influence the witnesses directly orindirectly……” is not substantiated by any materials and is only ageneralised apprehension and appears to be speculative. Mere avermentsthat the appellant approached the witnesses and the assertion that theFappellant would further pressurize the witnesses, without any materialbasis 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-operatedwith the investigating agency and the charge sheet is also filed.

32. The appellant is not “flight risk” and in view of the conditionsGimposed, there is no possibility of his abscondence from the trial.Statement of the prosecution that the appellant has influenced thewitnesses and there is likelihood of his further influencing the witnessescannot be the ground to deny bail to the appellant particularly, whenthere is no such whisper in the six remand applications filed by theprosecution. The charge sheet has been filed against the appellant andH

other co-accused on 18.10.2019. The appellant is in custody from21.08.2019 for about two months. The co-accused were already grantedbail. The appellant is said to be aged 74 years and is also said to besuffering from age related health problems. Considering the above factorsand the facts and circumstances of the case, we are of the view that theappellant is entitled to be granted bail.

33. In the result, the impugned judgment dated 30.09.2019 passedby the High Court of Delhi in Bail Application No.2270 of 2019 is setaside 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 anyother case, subject to the condition of his executing bail bonds for sumof Rs.1,00,000/- with two sureties of like sum to the satisfaction of theSpecial Judge (PC Act), CBI-06, Patiala House Courts, New Delhi.The passport if already not deposited, shall be deposited with the SpecialCourt and the appellant shall not leave the country without leave of theSpecial Court and subject to the order that may be passed by the SpecialJudge from time to time. The appellant shall make himself available forinterrogation as and when required. Consequently, the appeal arising outof SLP(Crl.) No.9445 of 2019 preferred by the CBI stands dismissed.Since the High Court, in the impugned judgment, has expressed its viewson the merits of the matter, the findings of the High Court in the impugnedjudgment shall not have any bearing either in the trial or in any otherproceedings. It is made clear that the findings in this judgment beconstrued as expression of opinion only for the limited purpose ofconsidering the regular bail in CBI case and shall not have any bearingin any other proceedings.

Nidhi Jain

Appeals disposed of.