In a setback to former finance minister P Chidambaram, the Supreme Court on Thursday denied him anticipatory bail in the INX Media money laundering case saying granting him relief would “hamper the investigation” and the ED has to be given “sufficient freedom” in conducting the probe.
The apex court, which held that this is “not a fit case” to grant relief to Chidambaram, said economic offences stand as a different class as they affect “economic fabric of the society” and “extraordinary power” of granting anticipatory bail has to be exercised sparingly in such cases.
The top court said granting anticipatory bail at the stage of investigation might frustrate the probe agency in interrogating the accused, collecting useful information as also material which might have been concealed.
The apex court dismissed Chidambaram’s appeal challenging the August 20 verdict of the Delhi High Court denying him anticipatory bail in the case lodged by Enforcement Directorate (ED) saying there were no grounds warranting interference with the order.
The high court had also rejected his pre-arrest bail in the corruption case lodged by CBI in which he was arrested on August 21 night and has been subjected to custodial interrogation for 15 days, which comes to an end today.
On Thursday, a bench of Justices R Banumathi and A S Bopanna, while dealing with the ED case, said that “Success in such interrogation would elude if the accused knows that he is protected by the order of the court.”
“Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail,” the bench said.
“Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation,” the bench said in its 57-page judgement.
The bench further said, “Considering the facts and circumstances of the case, in our view, a grant of anticipatory bail to the appellant (Chidambaram) will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.”
However, the top court was critical of the high court judge, who had delivered the August 20 verdict, for “verbatim” quoting the note produced before him by ED and said it was “not a correct approach for consideration of grant/refusal of anticipatory bail.”
“But such incorrect approach of the single judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein,” it said.
Dealing with contentions of Chidambaram’s lawyers that anticipatory bail is a facet of Article 21 of Constitution, the bench said the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake.
“Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India,” it said.
The bench did not accept the contention of Chidambaram’s lawyers that ED be directed to produce transcripts of his interrogation on three dates — December 12 last year and January 1 and 21 this year — so that it could be seen whether his answers to the questions put to him were evasive or not.
“Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are ‘satisfactory’ or ‘evasive’, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini-trial at various stages of the investigation,” the bench said.
“Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation,” it said.
The bench dealt with the issue whether courts can look into material collected by probe agency during an investigation without the accused being first confronted with them.
“Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation,” the bench said, adding, “Needless to point out that when the court has received and perused the documents/materials, it is only for the purpose of satisfaction of court’s conscience.”
It said though ED had placed documents before it in a sealed cover, the court has “consciously refrained” from perusing them as it might cause prejudice to the accused.
It said Chidambaram can approach the concerned court in accordance with the law and as and when an application for regular bail is filed, it should be considered by the trial court on its own merits without being influenced by the observations made by the apex court and the high court.
CBI had lodged an FIR on May 15, 2017, alleging irregularities in Foreign Investment Promotion Board clearance granted to INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram’s tenure as finance minister. Thereafter, the ED lodged a money laundering case in 2017.