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Chidambaram-SLP.Pdf Ba:r & Bench (www.barandb,ench.com) SYNOPSIS 1. Petitioner is aggrieved by the impugned final judgment and order dated 30.09.2019 passed by the Ld. Single Judge of the Hon’ble High Court of Delhi at New Delhi in Bail Application No. 2270 of 2019 titled as P. Chidambaram vs Central Bureau of Investigation (hereinafter referred to as the ‘impugned judgement’). Vide the impugned judgment, the Ld. Single has refused to exercise the discretion of granting bail under Section 439 of the Code of Criminal Procedure, 1973 and has dismissed the regular bail application of the Petitioner. 2. The Petitioner is a Senior Advocate practicing in this Hon’ble Court with 49 years of standing at the Bar, out of which, he has 35 years standing as a Senior Advocate. Currently, he is a Member of Parliament (Rajya Sabha). He was formerly Union Minister of Finance (1996-1998, 2004-2008 and 2012-2014) and Union Minister of Home Affairs (2008-2012). He is a member of the Indian National Congress, which is the principal Opposition party in Parliament, and has been in public life for over 40 years. The Petitioner is also a senior spokesperson of the Congress party as well as a prominent and widely-read columnist. 3. The Petitioner, who is currently in judicial custody, has been incarcerated for 42 days including maximum permissible period of 15 days of CBI custody remand, and therefore, his continuing incarceration is in the form of punishment as his custody can neither be taken nor is required for the purpose of investigation. 4. The Ld. Single Judge declined bail despite categorically holding that: (a) The Petitioner is not a flight risk, and would be available for facing trial; 1 Ba:r & Bench (www.barandb,ench.com) (b) No evidence has been placed on record that the Petitioner has ever attempted or has in fact tampered with any evidence or even capable of tampering evidence. 5. The only reason given by the Ld. Single Judge while rejecting the regular bail is:- “72. As argued by learned Solicitor General, (which is part of ‘sealed cover’, two material witnesses (accused) have been approached for not to disclose any information regarding the petitioner and his son (co-accused). This Court cannot dispute the fact that the petitioner has been a strong Finance Minister and Home Minister and presently, Member of Indian Parliament. He is respectable member of the Bar Association of Supreme Court of India. He has long standing in BAR as a Senior Advocate. He has deep root in the Indian Society and may be some connection in abroad. But, the fact that he will not influence witnesses directly or indirectly, cannot be ruled out in view of the facts. Moreover, the investigation is at advance stage, therefore, this Court is not inclined to grant bail”. 6. At the outset, Firstly, the Petitioner categorically states that at no point in time, whether prior to the lodging of the FIR dated 15.05.2017 or thereafter, has the Petitioner approached or influenced any of the alleged material witnesses (accused) or even attempted to do so, directly or indirectly. The Ld. Single Judge has not even found that the Petitioner has approached or influenced, or attempted to approach or influence, the two material witnesses or accused, as set out in the impugned order. Given that such an allegation was made in a sealed cover, the Petitioner had no opportunity to show the allegation to be demonstrably false. The liberty of the Petitioner has thus been denied on the basis of the above baseless, anonymous and 2 Ba:r & Bench (www.barandb,ench.com) unverified allegation made behind the Petitioner’s back. This is violative of the ‘procedure established by law’ and the Petitioner’s right under Article 14 and 21 of the Constitution because 7. Secondly, without prejudice to the above, even the alleged statements of alleged material witnesses (accused) has no evidentiary value since a co- accused can never be a witness in the proceedings. Consequently, the conclusion of the Ld. Single Judge is based on no material other than a false allegation made in a sealed cover behind the back of the Petitioner. No jurisprudential principle can be invoked in such circumstances to deny the Petitioner bail on this ground alone. 8. Thirdly, A) The reference to the two material witnesses (accused) having being approached to not disclose information is not supported by any material to show any personal meeting at any given place or any other form of communication (such as SMS, Email, Letter, Telephone calls etc.), which could lend any credibility to the allegation made in the sealed cover. B) In the absence of any contemporaneous credible material, the Ld. Single Judge could not have relied upon any such alleged statement given by the Respondent in a sealed cover. C) It is not even the case of the Respondent that the Petitioner himself or any person at his instance approached the alleged material witnesses (accused). It is thus a travesty of justice that on such a cooked-up allegation the Petitioner has been denied his liberty. D) Indeed, the handing over of material in the sealed cover and getting the Investigating Officer to assist (as recorded in para 46 of the impugned judgement) is highly objectionable and 3 Ba:r & Bench (www.barandb,ench.com) operated as serious irreversible prejudice to the Petitioner and is against all cannons of fair play and justice. E) It is note-worthy to mention that this Hon’ble Court while rendering judgment in Criminal Appeal No. 1340 of 2019, titled P. Chidambaram Vs CBI @ Para 54, has deliberately and consciously refrained from opening the sealed cover and perusing the documents therein to avoid any prejudice to the Petitioner herein. 9. Fourthly, in all the remand applications filed by the Respondent dated 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019, there is no allegation that any material witnesses (accused) have been approached to not disclose information about the Petitioner and his son. Therefore, it is evident that the above allegation was made as an afterthought in sealed cover only to prejudice the Petitioner’s bail. In these circumstances, for the Ld. Single Judge to have concluded that it cannot be ruled out that the Petitioner will not influence witnesses directly or indirectly is ex-facie untenable, particularly, since the CBI has not alleged that the Petitioner himself approached the alleged two material witnesses (accused). The basis on which the Ld. Single Judge came to the above conclusion is not reflected in the impugned judgement. Thus, the whole basis of denying the Petitioner bail is ex-facie erroneous and violative of Article 14 and 21 of the Constitution. 10. Fifthly, it is settled proposition of law that a mere apprehension without their being substantial evidence and particulars of an accused approaching any witness, is not enough to deny bail to an accused. However, Ld. Single Judge despite holding that the Petitioner is not a flight risk and is not in a position to tamper evidence has refused to grant bail on a mere apprehension of the likelihood of petitioner influencing 4 Ba:r & Bench (www.barandb,ench.com) witness based on alleged statements of two alleged accused, details of which are not even known to the Petitioner. 11. Sixthly, can the prosecution use the sealed cover procedure to make an allegation, the substance of which (but not the details) is not set out in the affidavit filed in response to the bail petition, thus denying the Petitioner the opportunity to respond to such allegations and to convince the Court that taken at its face value, such an allegation has been manufactured to prejudice the bail application of the Petitioner. 12. Further, the Ld. Single Judge has not appreciated the other overwhelming considerations/ factors in favour of the Petitioner for grant of bail, which are as under:- a. The First Information Report being RC No RC2202017-E- 0011 is itself registered on 15.05.2017 and itself notes that the period of offence is 2007-08, more than 11 years old. b. The Petitioner is not named in the FIR. There is no reference or allegation against the Petitioner in the FIR. c. The Petitioner was always ready and willing to cooperate with investigation and in fact joined the investigation on the sole occasion when he was summoned by the Respondent on 06.06.2018. The Petitioner was never summoned again until 20.08.2019, for a period of about one and a half years, despite being available for investigation. d. All other accused persons are on bail, regular, anticipatory or statutory. The Respondent has rightly not arrested any other public servant as decisions have been taken by them as per the prevailing policy. 5 Ba:r & Bench (www.barandb,ench.com) e. There is no allegation of any financial loss to the public exchequer. f. There is also no allegation of siphoning of any funds, and on the contrary, the instant case is a case where a huge sum of money in form of Foreign Direct Investment has come into the Country as per the prevailing policies of the Government of India. g. As per normal procedure, the FDI proposal of INX Media was processed by several officers in the FIPB Unit. Thereafter, it was put up to the FIPB (comprising of 6 Secretaries), which after due consideration, made its recommendations to the Ministry of Finance. In the Ministry, the case was once again examined by several officers (from the Under Secretary all the way up to the Additional Secretary) of the Department of Economic Affairs (DEA).
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