The Supreme Court on Wednesday granted regular bail to former Union Finance Minister P. Chidambaram, who is facing money laundering charges levelled against him by the Enforcement Directorate (ED) in the INX Media case, paving the way for his release from jail after a period of 106 days.
A Bench of Justices R. Banumathi, A.S. Bopanna and Hrishikesh Roy reminded the ED that though economic offences were grave, bail was still the rule and jail an exception.
“Basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial,” Justice Bopanna, for the Bench, observed in his judgment.
Justice Bopanna agreed with the ED that economic offences affected entire societies. The apex court had always held that economic offences were of grave nature, being a class apart, which arise out of deep-rooted conspiracies. The effect of such offences on society had to be indeed kept in view while granting bail.
However, on the other hand, there could not be a blanket ban against granting bail to the accused in economic offence cases.
“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,” Justice Bopanna held.
Each case for bail has to be weighed according to its individual circumstances, the court said. Courts could not blindly follow any uniform precedent while dealing with bail applications in economic offence cases.
Justice Bopanna pointed out that Mr. Chidambaram was in custody of the ED for over 45 days and was available for questioning. The ED had objected to the bail, arguing that they still wanted him for extensive questioning in connection with money laundering.
The court rejected the ED claim that Mr. Chidamabram would tamper with evidence and intimidate witnesses. The judgment reasoned that he was neither in power nor held any government post. It said he could not be blamed if a witness had refused to cooperate as there was no evidence of coercion.
“The appellant (Chidambaram) is aged about 74 years… has suffered two bouts of illness during incarceration and was put on antibiotics… In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardised. 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 Supreme Court ordered.
The apex court came down heavily on the tendency of the government side to present documents in sealed covers in courts to buttress their case. Both the CBI and ED had passed on sealed covers in the Delhi High Court.
“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,” Justice Bopanna said in the judgment.
The Supreme Court further observed that it was not initially inclined to peruse the sealed covers handed over to it by Mr. Mehta, but was compelled to since the Delhi HC judge had done so earlier.
The apex court also disapproved several observations made by the Delhi High Court in its November 15 judgment denying Mr. Chidambaram bail. The High Court judgment had termed him a “kingpin” and presumed his involvement in the case. Mr. Chidambaram’s lawyers and senior advocates Kapil Sibal and A.M. Singhvi had highlighted how the court had simply reproduced entire portions of the ED affidavit and made it out to look as it was its own judicial findings.
The Supreme Court specifically mentioned observations found in paragraphs 57 to 62 of the High Court judgment, which pass off as its “findings” in the case. Justice Bopanna emphasised that the merits of a case were usually gone into during trial and not while deciding bail. The apex court said how bail was denied to Mr. Chidambaram despite the High Court itself noting that he passed the triple test for bail.
The Supreme Court’s bail conditions include the furnishing of bail bonds of ₹2 lakh with two sureties, subject to satisfaction of Special Judge hearing the INX Media case. Mr. Chidambaram’s passport will remain confiscated and he will not be able to leave the country without permission.
Mr. Chidambaram would make himself available for interrogation. He would not give any press interviews or make public statements in connection with the case. Further, he would not intimidate any case witness.
The court, on the insistence of Mr. Mehta, added a line that the bail order would have no effect on action against other accused. Mr. Mehta indicated in court that there may be action against other accused, including arrest.
The Bench directed the Supreme Court Registry to return the sealed covers containing the case evidence.
The court allowed Mr. Sibal’s request for dasti (certified copy of the order) in order to produce before the Special Judge trying the INX Media case in the next few hours.
The INX Media case concerns the grant of FIPB approval in 2007-08 during Mr. Chidambaram’s tenure as Union Finance Minister. The FIR was registered in the case after almost a decade.