Flight risk of economic offenders cannot be viewed as national phenomenon: SC while allowing P Chidambaram Bail

Flight risk of economic offenders cannot be viewed as national phenomenon: SC while allowing P Chidambaram Bail

Meera Emmanuel

Two months after his arrest by the Central Bureau of Investigation (CBI), former Union Minister P Chidambaram was granted bail today in the INX Media case by a three judge Bench of the Supreme Court.

The CBI and the Enforcement Directorate (ED) had sought Chidambaram’s arrest in the case. Between May 2018 and August 2019, Chidambaram had been enjoying interim protection from arrest given by the Delhi High Court. However, on the night of August 21, Chidambaram was arrested after his plea for anticipatory bail was rejected by the Delhi High Court.

The CBI had justified Chidambaram’s arrest in the case on three primary grounds, i.e.

  • That Chidambaram was a “flight risk” and that he is likely to flee the country;
  • Possibility of his tampering with evidence
  • Likelihood of influencing witnesses

The Bench of Justices R Banumathi, AS Bopanna and Hrishikesh Roy, however, rejected all three grounds on Tuesday, eventually ruling that,

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.”

Unable to accept contention that economic offenders being a “flight risk” must be viewed as national phenomenon

Notably, the Bench expressly rejected the contention raised by Solicitor General Tushar Mehta for the CBI that viewing Chidambaram as a flight risk is justified given the nature of the offence he is accused of (economic offence). Mehta had also pointed out past instances of economic offenders fleeing the country and the resources available with Chidambaram to flee the country.

Rather, the Bench opined,

“…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.

Further, the Bench also found merit in the submissions made by Senior Counsel AM Singhvi and Kapil Sibal as regards why Chidambaram is unlikely to leave the country, being a Senior member of the Bar and a former Member of Parliament with “strong roots in society.” The Court observed,

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…The appellant is not a “flight risk” and in view of the conditions imposed, there is no possibility of his abscondence from the trial.

No material to support apprehensions of evidence tampering/pressurising witnesses

It may be noted that the Delhi High Court had already rejected the CBI’s argument that Chidambaram is likely to tamper with evidence, given that the relevant documents were in government custody.

However, the sole ground on which the High Court had rejected the bail plea was the likelihood of Chidambaram influencing witnesses in the case. The High Court had relied on certain material submitted by the CBI in a sealed cover to come to this conclusion. The sealed cover is said to have contained submissions concerning the allegations of two witnesses that they were being pressurised to refrain from deposing against the Chidambarams in the INX Media case.

The Supreme Court, however, found that there was no material evidence to support these apprehensions. It was noted that this apprehension was raised for the first time by the CBI only while opposing the bail plea before the High Court by way of a counter-affidavit. As noted in the Supreme Court judgment,

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….

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 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.

The Bench proceeded to conclude that the Delhi High Court’s conclusions regarding the same were unsubstantiated and speculative. Rather, the Supreme Court observed,

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.

High Court disregarded settled principles underlying the grant/refusal of bail

In view of the above findings, and after a detailed examination of the law regarding the grant or refusal of bail, the Supreme Court eventually found 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.”

The Bench reiterated that while considering bail applications, the Court must only express prima facie reasons to justify its verdict. However, the Court further clarified,

… 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.

On this ground as well, the Court proceeded to set aside the Delhi High Court’s refusal to grant Chidambaram bail. It also clarified that the High Court’s findings on the merits of the case should not influence the trial or other proceedings in the INX Media case. As noted in the judgment,

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 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.”

[Read the Judgment]

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