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TMI Blog2019 (10) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... each case. The following factors are to be taken into consideration while considering an application for bail:- (i) 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; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) 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. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General 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, in our view, be put in a straight-jacket formula so as to deny bail to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 3. This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of ₹ 305 crores against approved inflow of ₹ 4.62 crores. Briefly stated case of the prosecution as per the FIR is as under:- In 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 per cent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of ₹ 4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. INX Media committed violation of the recommendation of FIPB and the conditions of the approval as:- (i) INX Media deliberately made a downstream investment to the extent of 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio-Video etc. Alleging that the above acts of omission and commission prima facie disclose commission of offence, on 15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram; (iv) Chess Management Services through its Director Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court held that the investigation was in an advance stage and the possibility of the appellant influencing the witnesses cannot be ruled out. 8. The appellant has challenged the impugned judgment denying bail to him on the court s apprehension that he is likely to influence the witnesses. So far as the findings of the High Court on two counts namely flight risk and tampering with evidence holding in favour of the appellant, CBI has filed SLP(Crl.) No.9445 of 2019. 9. Mr. Kapil Sibal, learned Senior counsel for the appellant has submitted that the High Court erred in dismissing the bail application on mere apprehension that the appellant is likely to influence the witnesses and there is no supporting material on the possibility of the appellant of influencing the witnesses. Learned Senior counsel further submitted that the reference to the two material witnesses (accused) having been approached not to disclose information regarding the appellant and his son, is not supported by any material and the same lacks material particulars and no credibility could be given to the allegations given in a sealed cover. It was further submitted that the learned Single Judge did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had consultation with his lawyers and was preparing the matter for filing SLP and there was no question of his abscondence. It is submitted that the appellant thereafter addressed a press conference and then proceeded to his own house from where he was arrested. It was submitted that the appellant had thus not even attempted to conceal himself or evade the process of law. It was contended that the FIR is of 2017 and the appellant has not left the country ever since, instead he had joined the investigation and co-operated with the investigating agency. It was further submitted that the appellant being a Member of Parliament and a Senior Member of the Bar, there is no question of flight risk and the High Court rightly held in favour of the appellant on two counts viz. flight risk and tampering with evidence . 12. Mr. Tushar Mehta, learned Solicitor General submitted that while considering the bail application, the court should look into the gravity of the offence and that the possibility of the accused apprehending his conviction fleeing the country and since many economic offenders have fled from the country and the nation is facing this problem of the economic offenders fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that in the High Court, the appellant made submission limited to the applicability of the certain Press Note and the correctness of the decision taken by FIPB and the Finance Ministry only to show prima facie for the purpose of grant of bail and to show that the allegations against the appellant are unfounded and incorrect. It was submitted that the learned Single Judge even before the charges being framed and trial being held, had gone into the merits and demerits of the allegations against the appellant and rendered conclusive findings on the merits merely based on the allegations itself causing serious prejudice to the appellant and his defence in the impending trial and the impugned judgment passed by the High Court is completely contrary to the law laid down by the Supreme Court. In support of this contention, the learned Senior counsel placed reliance upon Niranjan Singh and another v. Prabhakar Rajaram Kharote and others (1980) 2 SCC 559. 16. Refuting the said contentions, the learned Solicitor General submitted that though at the stage of grant or refusal to grant of bail, detailed examination of the merits of the matter is not required, but the court has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion only for the purpose of refusal to grant bail and the same shall not in any way influence the trial or other proceedings. 19. The learned Senior counsel for the appellant has taken us through the dates and events and submitted that in the Enforcement Directorate s case after the dismissal of the appeal by the Supreme Court refusing to grant anticipatory bail, immediately the appellant sought to surrender in the Enforcement Directorate s case; but the same was objected to by the Enforcement Directorate and the Department has sought to arrest the appellant subsequently only on 11.10.2019 and the investigating agencies are prejudicially acting against the appellant to ensure that the appellant is not released on bail and continues to languish in custody. 20. Refuting the said contention of the appellant that the investigating agencies-CBI and Enforcement Directorate are bent upon prolonging the custody of the appellant, the learned Solicitor General submitted that after the anticipatory bail was dismissed by the Supreme Court in Criminal Appeal No.1340 of 2019 on 05.09.2019, the appellant has filed the petition to surrender in the Enforcement Directorate s case on 05.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati v. NCT, Delhi and another (2001) 4 SCC 280). 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. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General 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, in our view, 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, in our view, 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. 23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528, it was held as under:- 11. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused .. . 25. In the light of the above well-settled principles, let us consider the present case. At the outset, it is to be pointed out that 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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The relevant portion of the impugned judgment of the High Court in para (72) reads as under:- 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 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 the witnesses directly or indirectly, cannot be ruled out in view of above facts. Moreover, the investigation is at advance stage, therefore, this Court is not inclined to grant bail. 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 learned 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. 32. 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 appe ..... 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