Shri P. Chidambaram vs Central Bureau of Investigation

HELD: 1.1 Expression of prima facie reasons for granting or refusing to grant bail is a requirement of law especially where such bail orders are appealable so as to indicate application of mind to the matter under consideration and the reasons for conclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grant or refusal to grant bail. This will also help the appellate court to appreciate and consider the reasonings for grant or refusal to grant bail. But 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. Observing that at the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided. [Para 17][997-G-H; 998-AB]

1.2 The jurisdiction to grant bail has to be exercised on the basis of the well–settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:– the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behaviour and standing of the accused and the circumstances which are peculiar to the accused; larger interest of the public or the State and similar other considerations. There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. It cannot be said 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 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, 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. [Para 22][999-FH; 1000-A-C]

Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528; Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13 : [2005] 1 SCR 160; State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454 – referred to.

2.1 In the instant case, in the impugned judgment, paras

(51) to (70) relate to the findings on the merits of the prosecution case. 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 the said paras 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. [Para 18][998-D-E]

2.2 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. [Para 25][1001-H; 1002-A][1001-H; 1002-A]

2.3 Insofar as the “flight risk” and “tampering with evidence” are concerned, the High Court held in favour of the appellant by holding that the appellant is not a “flight risk” i.e. “no possibility of his abscondence”. The High Court rightly held that by issuing certain directions like “surrender of passport”, “issuance of look out notice”, “flight risk” can be secured. So far as “tampering with evidence” is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence. [Para 26][1002-B-C]

2.4 In the FIR registered on 15.05.2017, the High Court has granted interim protection to the appellant on 31.05.2018 and the same was in force till 20.08.2019-the date on which the High Court dismissed the appellant’s petition for anticipatory bail. Between 31.05.2018 and 20.08.2019, when the appellant was having interim protection, the appellant did not file any application seeking permission to travel abroad nor prior to the same after registration of FIR any attempt is shown to have been made to flee. It is stated that the appellant being the Member of Parliament and a Senior Member of the Bar has strong roots in society and his passport having been surrendered and “look out notice” issued against him, there is no likelihood of his fleeing away from the country or his abscondence from the trial. It is accepted 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. [Para 27][1002-E-G]

2.5 So far as the allegation of possibility of influencing the witnesses, the High Court referred to the submissions of the Solicitor General which is said to have been a part of a “sealed cover” that two material witnesses are alleged to have been approached not to disclose any information regarding the appellant and his son and the High Court observed that the possibility of influencing the witnesses by the appellant cannot be ruled out. [Para 28][1002-H; 1003-A-B]

2.6 FIR was registered by the CBI on 15.05.2017. The appellant was granted interim protection on 31.05.2018 till 20.08.2019. 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. 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. [Para 29][1003-E-H]

2.7 Statement u/s. 164 CrPC of the witness ‘X’ is said to have been recorded. The said witness allegedly approached or the other witnesses in a case of the instant nature, cannot be said to be a rustic or vulnerable witness who could be so easily influenced; more so, when the allegations are said to be based on documents. More particularly, there is no material to show that the appellant or his men have been approaching the said witness so as to influence the witness not to depose against the appellant or his son. [Para 30][1004-A-C]

2.8 The respondent-CBI has filed remand applications seeking remand of the appellant on various dates. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of the Single Judge that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. 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. [Para 31][1004-D-F]

2.9 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. The charge sheet has been filed against the appellant and other co-accused. The appellant is in custody for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the said factors and the facts and circumstances of the case, the appellant is entitled to be granted bail. [Para 32][1004-G-H; 1005-A]

Mahender Chawla and others v. Union of India and others (2018) 15 SCALE 497; Niranjan Singh and another v. Prabhakar Rajaram Kharote and others (1980) 2 SCC 559 : [1980] 3 SCR 15; Puran v.

Rambilas and another (2001) 6 SCC 338 : [2001] 3 SCR 432; Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280 : [2001] 2 SCR 684–

referred to.