2019 (12) TMI 186 - SC - Money Laundering

Money Laundering - Grant of Regular Bail - concealmant of investment received - in INX Media (P) Ltd., M/s INX News (P) Ltd. - permission for the downstream investment sought - whether the further consideration made by the learned Judge of the High Court, despite holding the triple test in appellant s favour was justified and if consideration is permissible, whether the learned Judge was justified in his conclusion? HELD THAT - The basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. The underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. Thus, even after concluding the triple test in favour of the appellant the learned Judge of the High Court was certainly justified in adverting to the issue relating to the gravity of the offence. However, we disapprove the manner in which the conclusions are recorded in paragraphs 57 to 62 wherein the observations are reflected to be in the nature of finding relating to the alleged offence. The appellant is ordered to be released on bail if he is not required in any other case, subject to executing bail bonds for a sum of ₹ 2 lakhs with two sureties of the like sum produced to the satisfaction of the learned Special Judge - appeal allowed.

Summary

Issues Involved:
1. Denial of regular bail by the High Court.
2. Allegations against the appellant in connection with INX Media and the FIPB approval.
3. Application of the triple test (flight risk, tampering with evidence, influencing witnesses).
4. Consideration of the gravity of the offense.
5. Procedural aspects regarding the sealed cover documents and findings based on them.

Issue-wise Detailed Analysis:

1. Denial of Regular Bail by the High Court:
The High Court of Delhi denied regular bail to the appellant in Bail Application No. 2718 of 2019. The High Court concluded that the allegations against the appellant were serious, and he played a key and active role in the case. Despite acknowledging that the appellant was not a flight risk and there was no chance of tampering with evidence or influencing witnesses, the High Court dismissed the bail application based on the gravity of the offense.

2. Allegations Against the Appellant in Connection with INX Media and the FIPB Approval:
The case originated from FIR No. RC2202017-E0011, registered by the CBI under sections 120-B r/w 420 IPC and sections 8 and 13 (2) r/w 13 (1) (d) of the PC Act. The allegations involved INX Media Pvt. Ltd. seeking FIPB approval for issuing shares and making downstream investments, which were not approved. Despite this, INX Media made unauthorized investments and received more FDI than approved. The appellant, then Finance Minister, was alleged to have conspired with his son to influence FIPB officials to favor INX Media. Payments were allegedly made to companies controlled by the appellant's son.

3. Application of the Triple Test:
The Supreme Court noted that the High Court had found in favor of the appellant on the triple test, which includes assessing flight risk, tampering with evidence, and influencing witnesses. The High Court observed that the appellant was not a flight risk, there was no material to suggest tampering with evidence, and the likelihood of influencing witnesses was minimal as their statements had already been recorded.

4. Consideration of the Gravity of the Offense:
The Supreme Court acknowledged that the gravity of the offense is an important factor in bail considerations, especially in economic offenses. However, it emphasized that the severity of the punishment and the nature of the allegations should be balanced against the right to a fair trial. The court noted that the appellant had been in custody for over 45 days and had cooperated with the investigation. The court also considered the appellant's age and health condition.

5. Procedural Aspects Regarding the Sealed Cover Documents and Findings Based on Them:
The Supreme Court criticized the High Court's reliance on sealed cover documents to make findings against the appellant. It held that while the court could peruse such documents to satisfy its conscience, it should not record findings based on them, as it could prejudice the accused's right to a fair trial. The Supreme Court refrained from making detailed observations on the sealed cover documents but noted that the allegations would need to be proven at trial.

Conclusion:
The Supreme Court set aside the High Court's order denying bail and granted bail to the appellant, subject to conditions. The court emphasized that the observations made should not be construed as opinions on the merits of the case and left all contentions open for trial. The appellant was ordered to be released on bail, with conditions to ensure his availability for further investigation and trial.