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TMI Blog2019 (12) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... omic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval of the Finance Minister. However, the Board did not approve the downstream investment by INX Media (P) Ltd. in INX News (P) Ltd. Further, in the press release dated 30.5.2007 issued by the FIPB Unit indicating details of proposals approved in the FIPB meeting, quantum of FDI/NRI inflow against M/s INX media was shown as ₹ 4.62 crores. Contrary to the approval of FIPB, M/s INX Media Pvt. Ltd. deliberately and in violation of conditions of approval, made a downstream investment to the extent of 26% capital of INX News and also generated more than ₹ 305 crores FDI in INX Media (P) Ltd. against the approved foreign inflow of ₹ 4.62 crores is the allegation. A complaint is stated to have been received by the investigation wing of the Income Tax department which sought clarifications from the FIPB Unit of Ministry of Finance. The FIPB Unit vide letter dated 26.5.2008, sought clarifications from M/s INX Media Limited. It was further alleged in the FIR that upon receipt of this letter, M/s INX Media in order to avoid punitive action entered into criminal conspiracy with Mr. Karti Chidambaram (accused no. 3 in the FIR who is the son of the appellant). Mr. Karti Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipatory bail is not to be done as a matter of rule, especially in matters of economic offences which constitute a class apart. Regard must be had to the fact that grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information and also materials which might have been concealed. 7. In the meanwhile, on 21.8.2019, the appellant was arrested in the CBI case (arising out of the above-mentioned FIR). Since then he has been in custody. In the ECIR case, he was arrested on 16.10.2019 on the grounds that payment of approx. ₹ 3 crores was made at the appellant s instance to the companies controlled by his son on account of FIPB work done for INX Group. Further it was stated in the grounds of arrest that the investigation is not fruitful due to the appellant s non-cooperation; the appellant has withheld relevant information which is within his exclusive knowledge and thus his custodial interrogation is necessary. 8. After dismissal of his application seeking anticipatory bail by this court, the appellant moved an application dated 5.9.2019 praying to surrender before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the custody of the Respondent for a period of 7 days. 9. After his arrest, on 23.10.2019, the appellant moved a regular bail application (Bail Application No. 2718 of 2019) before the High Court u/s 439 of CrPC averring that he is a law abiding citizen having deep roots in the society; he is not a flight risk and is willing to abide by all conditions as may be imposed by the court while granting bail. It was also submitted that the instant case is a documentary case and being a respectable citizen and former Union Minister, he cannot and will not tamper with the documentary record of the instant case which is currently in the safe and secure possession of the incumbent government or the Trial Court. On merits, it was stated by the Appellant that he merely accorded approval to the unanimous recommendation made by the FIPB which was chaired by the Secretary, Economic Affairs and included 5 other secretaries who were all among the senior most IAS officers (one among them was a senior IFS officer) and had a long and distinguished record of service. Anyone familiar with the working of the FIPB would know that no single officer can take a decision on any proposal. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far that these shell companies are incorporated by persons who can be shown to be close and connected with the appellant. Next, the Court held that the material in the present case is completely distinct, different and independent from the material which was collected by the CBI in the predicate offence. Even the witnesses in the PMLA investigation are different from the investigation conducted by the CBI. The High Court concluded that prima facie, allegations are serious in nature and the appellant has played key and active role in the present case. On the basis of all these observations, the High Court dismissed the bail application. 11. It is the contention of the learned senior counsel Shri Kapil Sibal and Dr. Abhishek Manu Singhvi on behalf of the appellant before us that the High Court ought to have granted regular bail to the appellant after holding the triple test of flight risk, tampering with evidence and influencing of witnesses in favour of the appellant. The Impugned Order deserves to be set aside only on the ground that the allegations of a completely unrelated case (Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46) have been considered by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hable by imprisonment for a term which shall not exceed 7 years. Thus, the offence is not grave or serious in terms of the judgment of this Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40. The High Court should also have considered that the appellant is a 74 year old person whose health is fragile and while being lodged in judicial custody of the Respondent Enforcement Directorate between 16.10.2019 and 30.10.2019 and thereafter being lodged in judicial custody between 30.10.2019 till date, the appellant has suffered multiple bouts of chronic and persistent pain in his abdomen, for which he was taken to AIIMS and Dr. Ram Manohar Lohia Hospital on various occasions (viz. On 23.10.2019, 26.10.2019, 28.10.2019, 30.10.2019 and 1.11.2019) for consultation, diagnosis and tests. The appellant s health continues to deteriorate and with the onset of the cold weather, the appellant will become more vulnerable. 12. Between 05.09.2019 and 16.10.2019 though the appellant was available in custody the respondent did not choose to interrogate but remand period was sought on 17.10.2019 and 24.10.2019, while the third remand sought was rejected and accordingly the remand period expire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon man loses confidence in the establishment. It is contended that the Investigating Agency has collected documentary evidence such as emails exchanged between the co-conspirators on behalf of the appellant and documents to indicate investment of laundered money in benami properties whose beneficial owners can be traced to the appellant and his family members. The respondent has also recorded the statement of material witnesses who are the part of process of money laundering. It is his contention that the appellant has knowledge of all these aspects and the material will show the share holding pattern of the 16 companies. It is further contended that the learned Judge of the High Court has referred to the documents produced in a sealed cover and in that light has arrived at the conclusion to deny bail. The High Court has, however, not properly considered while recording that a complaint is ready to be filed and therefore, he would not influence the witnesses. Even if the complaint/charge sheet is filed in 60 days it is only to avoid default and the investigation which is not complete would continue. In that light it is contended that when economic offences are premeditated it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the severity of the punishment in the case of conviction and the nature of 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 (vide Prahlad Singh Bhati 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. 16. In the above background, perusal of the order dated 15.11.2019 impugned herein indicates that the learned Single Judge having taken note of the rival contentions in so far as the triple test or the tripod test to be applied while considering an application for grant of regular bail under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognised, the decisions in the case of State of Bihar Anr. vs. Amit Kumar, (2017) 13 SCC 751; Nimmagadda Prasad vs. CBI, (2013) 7 SCC 466; CBI vs. Ramendu Chattopadhyay, Crl Appeal.No.1711 of 2019; Seniors Fraud Investigation Office vs. Nittin Johari Anr.; (2019) 9 SCC 165; Y.S. Jagan Mohan Reddy vs. CBI, (2013) 7 SCC 439; State of Gujarat vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 are relied upon. Perusal of the cited decisions would indicate that this Court has held that economic offences are also of grave nature, being a class apart which arises out of deep-rooted conspiracies and effect on the community as a whole is also to be kept in view, while consideration for bail is made. 19. On the consideration as made in the above noted cases and the enunciation in that regard having been noted, the decisions relied upon by the learned senior counsel for the appellant and the principles laid down for consideration of application for bail will require our consideration. The learned senior counsel for the appellant has relied upon the decision of the Constitution Bench of this Court in the case of Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. We have taken note of the said decision since even though the consideration therein was made in the situation where an application for anticipatory bail under Section 438 was considered, the entire conspectus of the matter relating to bail has been noted by the Constitution Bench. 20. The learned senior counsel for the appellant has also placed reliance on the decision on the decision in the case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 with specific reference to paragraph 39 which reads as hereunder: Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, 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. 22. In the above circumstance it would be clear that 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. 24. Having said so, in present circumstance we were not very much inclined to open the sealed cover although the materials in sealed cover was received from the respondent. However, since the learned Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for us to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent. On perusal we have taken note that the statements of persons concerned have been recorded and the details collected have been collated. The recording of statements and the collation of material is in the nature of allegation against one of the co-accused Karti Chidambaram- son of appellant of opening shell companies and also purchasing benami properties in the name of relatives at various places in different countries. Except for recording the same, we do not wish to advert to the documents any further since ultimately, these are allegations which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on antibiotics and has been advised to take steroids of maximum strength. In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a flight risk and there is no possibility of tampering the evidence or influencing\intimidating the witnesses. Taking these and all other facts and circumstances including the duration of custody into consideration the appellant in our considered view is entitled to be granted bail. It is made clear that the observations contained touching upon the merits either in the order of the High Court or in this order shall not be construed as an opinion expressed on merits and all contentions are left open to be considered during the course of trial. 26. For the reasons stated above, we pass the following order: i) The instant appeal is allowed and the judgment dated 15.11.2019 passed by the High Court of Delhi in Bail Application No.2718 of 2019 impugned herein is set aside; ii) 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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