Plea by P Chidambaram for anticipatory bail in INX Media Case by ED: Live Updates from SC [Day 4]
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Plea by P Chidambaram for anticipatory bail in INX Media Case by ED: Live Updates from SC [Day 4]

Bar & Bench

The Supreme Court continues to hear the challenge to the Delhi High Court’s refusal to grant anticipatory bail in the Enforcement Directorate’s case filed against former Union Minister P Chidambaram.

The matter is being heard by a Bench of Justices R Banumathi and AS Bopanna,

Both the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) sought Chidambaram’s arrest in the INX Media case.

Chidambaram was sent to custody last week in the case filed by the CBI. Chidambaram, who was remanded to CBI custody by the Special CBI Judge, also challenged the order granting custody.

On August 26, the Supreme Court rejected the SLP challenging the order of the Delhi High Court denying him protection from arrest by the CBI, upon noting that the plea had become infructuous. However, the Bench granted him interim protection from arrest by the ED.

The same day, the Special CBI Court at Rouse Avenue Court Complex extended the CBI’s custody of P Chidambaram till August 30. An application was later filed challenging the extension of remand.

During the second round of hearing before the Supreme Court on Tuesday, the Bench extended the interim protection granted to Chidambaram from arrest by the ED. An account of the third round of hearing can be read here.

Senior Advocates Kapil Sibal and Abhishek Manu Singhvi are arguing for P Chidamabaram. Solicitor General Tushar Mehta is appearing for the Enforcement Directorate (ED).

Live Updates of today’s hearing follow:

  • Hearing in the petition filed by P Chidambaram seeking anticipatory bail in case registered by the ED begins. Solicitor General Tushar Mehta resumes his arguments.
  • The proposition made by Sibal that Court should examine whether an accused has been evasive after examining the questions and answers put to him based on evidence collected is absurd, would have devastating results and is preposterous, Mehta
  • Mehta lists various sensitive and high profile cases being probed under the PMLA. He says SC’s decision, in this case, may impact cases against Mallya, Nirav Modi, Mehul Choksi, Zakir Naik and also terror finding cases.
  • If an accused at large is confronted with the evidence collected, then the agency will have exposed its evidence and witnesses and it will give a chance to the accused to tamper with evidence and erase the money trail, Mehta
  • Investigation is an art where the agency brings the accused to divulge details. It’s not a mere question and answer format or an interview, Mehta
  • If the accused at large is confronted with all the material we have, he may go and erase the money trail or tamper with evidence. The art of investigation is that the agency decides what information in possession to reveal, what not to reveal, Mehta
  • An agency has the absolute discretion regarding what material to divulge and what to withhold. If an accused is confronted with evidence at pre anticipatory bail stage, it will destroy the full case, Mehta
  • The manner and method of investigation are left entirely to the investigating authority, Mehta says while citing SC judgments in cases of Khwaja Nazeer Ahmed and Abhinandan Jha.
  • Mehta, citing precedents says, Supreme Court cannot become a regular court of appeal for orders passed by High Courts or Magistrates. This Court ordinarily does not interfere in matters of bail and High Courts should be the final authority.
  • There are checks and balances under the scheme of every penal statute and that is why every accused is required to be produced before the Magistrate periodically so that he can tell in case of any ill-treatment, Mehta.
  • But the best way to elicit truth is when an accused is not under a protective umbrella, Mehta
  • They (Sibal and Singhvi) have argued that gravity of an offence is subjective. PMLA offences may not be grave for them but the Courts have consistently held that economic offences are grave in nature, Mehta
  • The gravity of an offence is an important factor to be considered while entertaining petitions filed for anticipatory bail, Mehta says while citing Judgements to buttress his case that economic offences are very grave as held by Courts in the past
  • Quantum of punishment is no judgment for the gravity of an offence. The prison term is not relevant but what is relevant is what is the impact of the offence on the society and on the nation, Mehta
  • It was argued that Sections of PMLA were applied retrospectively but Section 8 of the PMLA was there in the Act from the start, Mehta
  • The bribe was added to the schedule in 2009 but laundering of proceeds of crime is a separate, standalone and independent offence, Mehta
  • Bench rises for lunch. Hearing in the case to continue at 2 pm.

Post Lunch Session

  • Bench assembles, SG Tushar Mehta resumes his arguments.
  • SG Tushar Mehta arguing on Section 45 of the PMLA concerning the twin condition for release of an accused on bail and its position in law prior to and after the Nikesh Tarachand Shah judgement.
  • During the course of the proceedings in the High Court, a note was filed and it was examined. In the judgment it is said twice that the records have been examined to arrive at the conclusion, Mehta
  • I insist that the Court looks at the material in my possession including the statement of the accused so that there is no iota of doubt about the material is cogent or not, Mehta
  • Mehta says that the material is ready in a sealed cover should the Court agree to examine it.
  • SG Tushar Mehta concludes his arguments.
  • Senior Counsel Kapil Sibal begins making his rejoinder arguments.
  • Sibal raises questions about the counter affidavit filed by the ED which asserts that the material was put to Chidambaram for confrontation and he was evasive. All that the Court has to see was if the material was put, Sibal.
  • It is not my case that they (agencies) can’t arrest me. All we’re saying is if you have put the material to confront Chidambaram like you have claimed in your counter affidavit, show it to the Court, Sibal
  • This is travesty of justice when a note is placed before the Court after proceedings are over and the same note is reproduced in the judgement as the opinion of the Court and later extracted as the findings of the Court, Sibal on Delhi HC’s judgment
  • The note is not even material evidence. Material in the eyes of the law are documents. Then they say all that that Judge has done is appreciate the material, Sibal
  • Opinion of Investigating Officer and finding of the Investigating Officer can never be part of the case diary, Sibal
  • Law is, anything in the case diary can be used for the purpose of confrontation or corroboration. If a document is recovered, it will have to be proved in the Court of law and cannot be the basis of an IO’s opinion which later forms the basis for the Judgment, Sibal
  • Petitioner never denied the right of the agencies to arrest him, Sibal
  • My right to get anticipatory bail is my right under Article 21 and they can arrest me as long as they are fair and reasonable. What is not fair or reasonable is handing over notes like this, Sibal
  • This is a serious issue concerning my liberty and yet the ED says that they have found me guilty and instead of putting it in an affidavit, they hand over a note to the High Court Judge, Sibal
  • The scheme says that the agency has to find me guilty before he arrests me..I’m not fettering ED’s right to arrest, Sibal
  • FIR and ECIR were registered in 2017 and the agency never chose to arrest Chidambaram. If the ED had found him guilty, they should have arrested him, not given a chance to go for anticipatory bail, Sibal
  • If the facts were so strong, they could have him arrested but they chose to summon him to elicit response and they got response but then they said he’s being evasive and non cooperative, Sibal
  • We’re in virgin territory right now. There has to be a balance struck between interest of the State as well as the liberty of individuals, Sibal
  • On sending of material to adjudicating authority in a sealed cover under PMLA, Sibal says it is a post arrest exercise and meant for the protection of the accused so that the material cannot be tampered with against the interest of the accused
  • Arrest him, there is no issue but if he moves for anticipatory bail or regular bail as is his right, then it shall be examined as under due procedure, Sibal
  • Liberty is not a one way street, denial of liberty is not a one way street, Sibal
  • Look at the enormity and drastic nature of this power to arrest. Can the liberty of a person be destroyed by the sealed cover nature of the process? Can a sealed cover seal the fate of a man? – Sibal
  • It is an unthinkable proposition of law that a document can ever be a part of the case diary… a document is a piece of evidence which needs to be proved before a Court of Law, Sibal
  • Sibal concludes his rejoinder arguments. Senior Counsel Abhishek Manu Singhvi begins his rejoinder arguments on behalf of P Chidambaram.
  • On disclosure of material, Singhvi says it’s not his case that evidence in sealed cover ought to be disclosed to the accused. The objection is to the submission of a sealed cover to the Judge after proceedings have concluded.
  • Justice Banumathi asks the Counsel to summarise the submissions in three sentences.
  • On restrospectivity, Singhvi says 3 out of the 4 provisions did not exist at the time.
  • P Chidambaram was not arrested since 2014, then what was the sudden new thing found that he had to be arrested like this? – Singhvi
  • Supreme Court reserves its order on P Chidambaram’s plea for anticipatory bail in case of INX Media case registered by the ED. The order will be delivered on Wednesday, Sept 4. Interim protection to be extended till the order is passed.
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