The Supreme Court on Tuesday extended the interim protection granted to former Union Finance Minister P Chidambaram from arrest by the Enforcement Directorate in the INX Media case till tomorrow.
The bench of Justice R Bhanumati and A S Bopanna today heard the arguments of lawyers of Chidambaram. The Solicitor General will make submissions tomorrow.
Senior Advocate Kapil Sibal, who had argued on Monday as well, submitted that an application for summoning the transcript of the interrogation has been filed.
Taking over from Sibal, Senior Advocate Dr Abhishek Manu Singhvi submitted that the ED can term Chidambaram 'non cooperative' only if the transcript shows that he has not responded to the important questions that have been put to him.
He said that the case was worse than the infamous ADM Jabalpur case, as even that judgment had held that detenu must be given copy of the charges. In this case, bail has been denied to Chidambaram based on the allegations in a sealed cover note submitted by ED, which was never shared with him.
Singhvi then raised the point of retrospective application of criminal law, which is barred under Article 20(2) of the Constitution of India. The case is based on sections included in Prevention of Money Laundering Act in 2009, whereas the alleged crime took place in 2007.
"You try and paint a person as a kingpin when those offences did not exist at the time?", asked Singhvi.
The twin factors of gravity of offence and evasive replies by Chidambaram which weighed with the HC to deny him pre-arrest bail are not at all present in the case. Merely because Chidambaram is not giving the answers which the ED wants, he cannot be termed as 'evasive', so long as he is responding to their summons.
"The impugned judgment is based on a distorted perception of evasion", Singhvi said.
The HC also adopted a subjective understanding of the gravity of the offence to deny bail to Chidambaram. The best test for gravity of offence is the punishment prescribed by the statute. The Code of Criminal Procedure regards offences which are punishable with a term of imprisonment of seven years and above, life imprisonment and death as grave offences. The punishment in these cases is less than 7 years. So, it was wrong to characterize the case as having grave offences, Singhvi said.
"By repeatedly using the word grave or gravity in its judgment, the HC is only adding a subjective adjective", he added.
Singhvi then invited the attention of the bench to the order granting bail to Karti Chidambaram, where another judge of the Delhi HC had observed that there was nothing on record to show that he had approached the officials of FIPB in relation to clearance for INX FDI.
Citing three tests for denying bail - 1) Non cooperation 2) Tampering of evidence 3) Risk of fleeing - Singhvi said that none of them were present in the case.
As a man in power till 2014, he could have easily tampered the documents relating to INX transaction if he had wanted do.
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 CBI has registered a separate case under Prevention of Corruption Act in respect of the corruption allegations. He was arrested from his Jor Bagh residence on August 21 by the CBI and is at present under custody till August 30.
A petition challenging the remand order has also been filed in SC.