The Supreme Court on Tuesday granted bail to former Union Finance Minister P Chidambaram in the case registered by CBI on corruption allegations in relation to INX Media FDI transaction.
The bench comprising Justices R Banumathi, A S Bopanna and Hrishikesh Roy had reserved judgment on October 18 in his petition challenging the September 30 judgment of the Delhi HC that had denied him bail.
"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", observed the judgment authored by Justice Banumathi.
Since Chidambaram is at present under the custody of Enforcement Directorate, he will not be able to walk free despite the bail granted by SC in this case.
The bail is conditional of Chidambaram furnishing a personal bond of Rupees one lakh and two sureties. He should make himself available for interrogation and should not leave the country, the Court said. The Court clarified that the grant of bail will have no bearing on other proceedings against him.
The bench also dismissed the cross appeal filed by the CBI against the finding of the Delhi High Court that Chidamabaram did not pose a 'flight risk' and that there was no apprehension that he would tamper evidence. The High Court however denied him bail observing that he had the potential to influence witnesses considering his stature as a Senior Advocate and former Union Cabinet Minister.
Rejecting the argument of Solicitor General Tushar Mehta that Chidambaram was capable of fleeing from the country, the Court observed :
At this stage itself, it is necessary for us to indicate that 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. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.
Setting aside the finding of the HC that Chidambaram might influence witnesses, the SC observed :
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. It appears that only at the time of opposing the bail and in the counter affidavit filed by the CBI before the High Court, the averments were made that "…..the appellant is trying to influence the witnesses and if enlarged on bail, would further pressurize the witnesses…..". CBI has no direct evidence against the appellant regarding the allegation of appellant directly or indirectly influencing the witnesses. As rightly contended by the learned Senior counsel for the appellant, no material particulars were produced before the High Court as to when and how those two material witnesses were approached.
"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", the SC observed.
Commenting on the allegations against Chidambaram, the Solicitor General argued that the probe has revealed that illegal investments of more than Rs 400 crores came into INX, and also went out without permission. There was downstream investment into other companies of INX without any application.
When Chidambaram, as Finance Minister, received complaints about the INX deal, he did not take any action. There are statements of Mukherjeas that they have paid money to Karti Chidambaram on Chidambaram's instructions. Karti's companies did not render any service to INX, SG Tushar Mehta said.
Senior Advocate Kapil Sibal, appearing for Chidambarm, submitted that the contents of chargesheet cannot be referred in a bail application.
Chidambaram should be granted bail applying the triple tests for bail - flight risk, tampering of evidence and influencing of witnesses.
Sibal also mentioned that the High Court has found in favour of Chidambaram with respect to first two tests.
He has been in custody for 58 days - 15 days CBI custody and 53 days judicial custody - and there is no possibility of influencing witnesses. Sibal also made mention of Chidambaram's advanced age and health problems.
On October 18, the CBI had submitted charge sheet against Chidambaram, his son Karti, former INX Media head Peter Mukherjee and eleven others for offences of cheating, forgery and criminal conspiracy under Sections 120B, 420, 468, 471 of Indian Penal Code and offences under Sections 9 and 13(1) (d) of Prevention of Corruption Act.
Peter Mukherjee's wife Indrani Mukherjee has been made an approver in the case.
Chidambaram was arrested from his Jor Bagh residence on August 21 by the CBI and has been custody since then. On September 5, he was sent to Tihar jail after 15 days of CBI custody.
The allegation is that as Union Finance Minister in 2007, Chidambaram took kickbacks for FIPB clearance for the FDI of INX media, and the money was routed through the companies linked with his son Karti Chidambaram.
The ED has registered a separate case under Prevention of Money Laundering Act in respect of the money laundering allegations. The CBI case is with respect to corruption allegations.
On October 17, the Enforcement Directorate took him into seven days custody after arresting him from Tihar jail.
The High Court took note of the 'sealed cover' notes submitted by the CBI, which stated that the accused Peter Mukherjee and Indrani Mukherjee -who controlled INX media - had met Chidambaram even before the filing of application for FIPB approval. The Court said in the judgment that it was on record that large sums of monies had come to the companies owned and controlled by Karti Chidambaram - Chidambaram's son- during the period of FIPB approval to INX Media, even though no services were rendered by those companies. Investigation has also revealed that contemporaneously large number of emails were exchanged between the representatives of INX Media and the company controlled by petitioner and Karti P. Chidambaram, the judgment said.
The High Court observed that economic offences constitute a class apart as it cuts at the root of probity and purity of public administration. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community.
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