REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1603            2019 (Arising out of SLP(Crl.) No.9269 of 2019)

SHRI P. CHIDAMBARAM         ...Appellant

VERSUS

CENTRAL BUREAU OF INVESTIGATION               …Respondent

WITH

CRIMINAL APPEAL NO.   1605             2019 (Arising out of SLP(Crl.) No.9445 of 2019)

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. These  appeals  arise  out  of  the impugned judgment  dated

30.09.2019 passed by the High Court of Delhi in Bail  Application

No.2270 of 2019 in and by which the High Court refused to grant

bail  to  the  appellant  in  the  case  registered  by  the  respondent-

Central Bureau of Investigation (CBI) under Section 120B IPC read

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with Section 420 IPC, 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 Rs.305 crores

against approved inflow of Rs.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 Rs.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% in the capital of INX

News Ltd. without specific approval of FIPB which included indirect

foreign investment  by the same Foreign Investors;  (ii)  generated

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more than Rs.305 crores FDI in INX Media which is in clear violation

of the approved foreign flow of Rs.4.62 crores by issuing shares to

the foreign investors at a premium of more than Rs.800/- per share.

4. Upon receipt of a complaint on the basis of a cheque for an

amount  of  Rs.10,00,000/-  made  in  favour  of  M/s  Advantage

Strategic  Consulting Private  Limited (ASCPL)  by INX Media,  the

investigation  wing  of  the  Income  Tax  Department  proceeded  to

investigate the matter and the relevant information was sought from

the  FIPB,  which  in  turn,  vide  its  letter  dated  26.05.2008  sought

clarification from the INX Media which justified its action saying that

the downstream investment has been approved and that the same

was made in accordance with the approval of FIPB.  It is alleged by

the prosecution that in order to get out of the situation without any

penal provision, INX Media entered into a criminal conspiracy with

Sh.  Karti  Chidambaram,  Promoter  Director,  Chess  Management

Services Pvt.  Ltd. and the appellant-the then Finance Minister of

India.  INX Media through the letter dated 26.06.2008 tried to justify

their  action  stating  that  the  downstream  investment  has  been

approved and the same was made in accordance with approval.

5. It  is alleged that INX Media Group in its record has clearly

mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as

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towards  “management  consultancy  charges  towards  FIPB

notification and clarification”.  The FIR further alleges that for the

services rendered by Sh. Karti Chidambaram to INX Media through

Chess  Management  Services  in  getting  the  issues  scuttled  by

influencing  the  public  servants  of  FIPB  unit  of  the  Ministry  of

Finance,  consideration  in  the  form  of  payments  were  received

against  invoices  raised  on  INX  Media  by  ASCPL.   It  is  further

alleged that the very reason for getting the invoices raised in the

name of ASCPL for the services rendered by Chess Management

Services  was  with  a  view  to  conceal  the  identity  of  Sh.  Karti

Chidambaram.  It  is  stated that  Sh.  Karti  Chidambaram was the

Promoter, Director of Chess Management Services whereas ASCPL

was being controlled by him indirectly. It is alleged that the invoices

approximately  for  an  amount  of  Rs.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

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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

persons for the alleged irregularities in giving FIPB’s clearance to

INX  Media  to  receive  overseas  funds  of  Rs.305  crores  against

approved Foreign Direct Investment (FDI) of Rs.4.62 crores.

6. Apprehending arrest, the appellant filed petition under Section

438 Cr.P.C. before the High Court seeking anticipatory bail.  Vide

order dated 31.05.2018, the High Court granted interim protection to

the  appellant  and  the  said  interim  protection  continued  till

20.08.2019.   By  the  order  dated  20.08.2019,  the  High  Court

dismissed  the  application  for  anticipatory  bail  to  the  appellant.

Challenging the order  declining anticipatory bail  to  the appellant,

SLP(Crl.) No.7525 of 2019 was preferred by the appellant before

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the Supreme Court on 21.08.2019.  In the meanwhile, the appellant

was  arrested  by  the  CBI  on  the  night  of  21.08.2019  and  the

appellant has been in custody since then.  Since the appellant was

arrested in  connection with  CBI  case,  the appellant’s  SLP being

SLP(Crl.) No.7525 of 2019 was dismissed as infructuous.  Insofar

as  the  case  registered  by  Enforcement  Directorate,  SLP(Crl.)

No.7523  of  2019  was  dismissed  by  this  Court  refusing  to  grant

anticipatory  bail  to  the  appellant  by  a  detailed  order  dated

05.09.2019.  In the present case, we are concerned only with the

case registered by the respondent-CBI in RC No.220/2017-E-0011.

7. The High Court by its impugned judgment dated 30.09.2019

refused to grant regular bail to the appellant and dismissed the bail

application. Before the High Court, three contentions were raised by

the respondent-CBI:- (i) flight risk;   (ii) tampering with evidence; and

(iii) influencing witnesses.  The learned Single Judge did not accept

the objection relating to “flight risk” and “tampering with evidence”.

Insofar as the objection of “flight risk” is concerned, the High Court

held that the appellant was not a “flight risk” and it was observed

that  by  issuing  certain  directions  like  “surrender  of  passport”,

“issuance of look-out notice” and such other directions, “flight risk”

can  be  secured.  So  far  as  the  objection  of  “tampering  with

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evidence”, the High Court held that the documents relating to the

present  case  are  in  the  custody  of  the  prosecuting  agency,

Government  of  India  and  the  Court  and  therefore,  there  is  no

possibility of the appellant tampering with the evidence. But on the

third count i.e. “influencing the witnesses”, 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

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could be given to the allegations given in a sealed cover. It  was

further submitted that the learned Single Judge did not appreciate

that in various remand applications filed by the respondent, there

was  no  allegation  that  any  material  witnesses  (accused)  having

been approached not  to  disclose information about  the appellant

and  his  son  and  the  above  allegation  has  been  made  as  an

afterthought in a sealed cover only to prejudice the grant of bail to

the  appellant.   The  learned  Senior  counsel  submitted  that  the

appellant was interrogated by the CBI only once though the CBI had

taken appellant’s custody for number of days.

10. Dr. A.M. Singhvi, learned Senior counsel submitted that “bail

is a rule and jail is an exception” and this well-settled position has

not  been  kept  in  view  by  the  High  Court.   The  learned  Senior

counsel submitted that bail was denied to the appellant based on

what  was  given  in  a  sealed  cover  and  submitted  “that  the

apprehension of CBI-possibility of influencing the witnesses” is an

afterthought.  Placing reliance upon Mahender Chawla and others

v.  Union of  India and others 2018 (15) SCALE 497,  the learned

Senior counsel submitted that if really the appellant approached the

witnesses  so  as  to  influence  them,  the  prosecution  could  have

taken steps and sought for protection of the witnesses as per the

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“witnesses  protection  scheme”  laid  down  in  Mahender  Chawla’s

case.  The learned Senior counsel further submitted that all other

accused are on bail and there is no justifiable reason to deny bail to

the appellant. It is also contended that now the charge sheet has

been filed and it does not indicate that tampering with evidence or

intimidating witness is a charge but the allegation is continued to be

made based on something unilaterally recorded and produced in a

sealed cover before the High Court which was only to prejudice the

mind of the Court.

11. So far as the cross appeal filed by the CBI, the learned Senior

counsel for the appellant submitted that after the anticipatory bail

was refused to the appellant by the High Court on 20.08.2019, the

appellant approached the Supreme Court for urgent hearing on the

very same day i.e. on 20.08.2019 and made a mention before the

Senior Judge on 21.08.2019 who had directed the matter be listed

for urgent hearing after placing the matter before Hon’ble the Chief

Justice of India and thereafter, the matter was listed on 23.08.2019.

The  learned  Senior  counsel  submitted  that  on  20.08.2019  and

21.08.2019, the appellant 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

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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 fleeing the country”.

It  was submitted that  the second test  is  to  find out  whether  the

accused  has  wherewithal  to  flee  the  country  and  possessing

resources and capacity to settle abroad. It was contended that the

respondent-CBI has definite material to show that the “witness was

influenced” and in order to prevent further possibility of influence

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and the vulnerability of the witness, the identity and the statement of

the  said  witness  cannot  be  shared  with  the  accused.  It  was

submitted that the statement of the said witness that he was being

approached not to disclose any information regarding the appellant

and his son, was produced before the High Court in a sealed cover

and based upon the same, the High Court rightly refused to grant

bail on the ground of “likelihood of influencing the witnesses”.  The

learned Solicitor General submitted that “likelihood of influencing the

witness” is not a mere apprehension but based upon material and

there is serious danger of the witnesses being influenced and the

mere  presence  of  the  accused-appellant  would  be  sufficient  to

intimidate the witnesses.   

13. The  learned  Solicitor  General  further  submitted  that  the

charge sheet has been filed on 18.10.2019 against the appellant

and  his  son  Sh.  Karti  Chidambaram  and  others  including  the

officials  under  Section  120B  IPC  read  with  Section  420  IPC,

Sections 468 and 471 IPC and under Section 9 and 13(2) read with

Section  13(1)(d)  of  the  Prevention  of  Corruption  Act.   It  was

submitted  that  the  investigation  qua  INX is  largely  over  and  the

investigation  reveals  that  more  companies  are  involved  and  the

investigation qua other companies are going on and if the appellant

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is granted bail at this stage, it would prejudicially affect the further

course  of  investigation.  The  learned  Solicitor  General  therefore

prayed for dismissal of the appeal filed by the appellant accused

and allow the appeal filed by the CBI.  

14. We have carefully  considered the contentions and perused

the  impugned  judgment  and  materials  on  record.   The  question

falling for  consideration is when other factors i.e. “flight risk”  and

“tampering  with  evidence”  are  held  in  favour  of  the  appellant,

whether the High Court was justified in declining regular bail to the

appellant  on  the  apprehension  that  there  is  possibility  that  the

appellant might influence the witnesses.  

15. The learned Senior counsel for the appellant 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

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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 indicate reasons for  prima facie concluding as to

why bail was granted or refused.  In support of his contention, the

learned  Solicitor  General  placed  reliance  upon  Kalyan  Chandra

Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528 and Puran

v. Rambilas and another (2001) 6 SCC 338.  It was contended that

the findings recorded by the learned Single Judge is only to record

prima facie finding indicating as to why bail was not granted and the

reasonings cannot be said to be touching upon the merits of the

case.

17. 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

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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”,  in

Niranjan Singh, it was held as under:-

“3.  ……Detailed  examination  of  the  evidence  and  elaborate

documentation  of  the  merits  should  be  avoided  while  passing

orders on bail applications. No party should have the impression

that his case has been prejudiced. To be satisfied about a prima

facie  case  is  needed  but  it  is  not  the  same  as  an  exhaustive

exploration of the merits in the order itself.”

18. In the present case, in the impugned judgment, paras (51) to

(70) relate to the findings on the merits of the prosecution case.  As

discussed earlier, at the stage of considering the application for bail,

detailed examination of the merits of the prosecution case and the

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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 paras (51) to (70) 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.   

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

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Enforcement  Directorate’s  case  on  05.09.2019  itself  and  the

Enforcement Directorate objected to the surrender of the appellant.

The  learned  Solicitor  General  submitted  that  the  Enforcement

Directorate  wanted  to  take  custody  of  the  appellant  in  the

Enforcement Directorate’s case only after examination of witnesses

and collecting relevant materials.   It  was submitted that  between

06.09.2019 and 09.10.2019, twelve witnesses were examined and

thereafter,  the  Enforcement  Directorate  filed  an  application  on

11.10.2019 seeking permission to arrest the appellant in connection

with Enforcement Directorate’s case and thereafter, application for

custodial  interrogation  of  the  appellant  was  filed  and  the

Enforcement  Directorate  has  taken  the  appellant  to  custody  for

interrogation for seven days (vide order dated 17.10.2019).  It was

therefore  contended  that  no  motive  could  be  attributed  to  the

investigating agency be it  CBI or Enforcement Directorate on the

timing of their action in the case against the appellant.

21. In this  appeal,  we are only  concerned with the question of

grant of bail or otherwise to the appellant in the CBI case. We have

referred  to  the  submission  of  learned  Senior  counsel  for  the

appellant  and  learned  Solicitor  General  only  for  the  sake  of

completion of  the sequence of  the contentions raised.  Since the

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matter pertaining to Enforcement Directorate is pending before the

concerned court, we are not expressing any opinion on the merits of

the  rival  contention;  lest  it  might  prejudice  the  parties  in  the

appropriate proceedings.   

22. 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:- (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  (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

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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 law in regard to grant or refusal of bail is very well settled.

The court granting bail should exercise its discretion in a judicious

manner  and not  as a  matter  of  course.  Though at  the stage of

granting  bail  a  detailed  examination  of  evidence  and  elaborate

documentation of the merit  of the case need not be undertaken,

there is a need to indicate in such orders reasons for prima facie

concluding  why  bail  was  being  granted  particularly  where  the

accused is  charged of  having committed a serious offence.  Any

order devoid of such reasons would suffer from non-application of

mind.  It  is  also necessary for  the court  granting bail  to consider

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among  other  circumstances,  the  following  factors  also  before

granting bail; they are:

(a)  The  nature  of  accusation  and  the  severity  of

punishment  in  case  of  conviction  and  the  nature  of

supporting evidence.

(b)  Reasonable  apprehension  of  tampering  with  the

witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the

charge. (See  Ram Govind Upadhyay v.  Sudarshan Singh

(2002) 3 SCC 598 and  Puran v.  Rambilas  (2001) 6 SCC

338.)

Referring to the factors to be taken into consideration for grant of

bail,  in  Jayendra  Saraswathi  Swamigal  v.  State  of  Tamil  Nadu

(2005) 2 SCC 13, it was held as under:-

“16. …….The considerations which normally weigh with the court in

granting bail in non-bailable offences have been explained by this

Court  in  State v.  Capt.  Jagjit  Singh  AIR  1962  SC  253  and

Gurcharan Singh v.  State (Delhi  Admn.)  (1978)  1 SCC 118 and

basically they are — the nature and seriousness of the offence; the

character of the evidence; circumstances which are peculiar to the

accused; a reasonable possibility of the presence of the accused

not  being  secured  at  the  trial;  reasonable  apprehension  of

witnesses being tampered with; the larger interest of the public or

the State and other similar factors which may be relevant in the

facts and circumstances of the case……”  

24. After referring para (11) of Kalyan Chandra Sarkar, in State of

U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held

as under:-

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“18. It  is  well  settled  that  the  matters  to  be  considered  in  an

application  for  bail  are  (i)  whether  there  is  any  prima  facie  or

reasonable ground to believe that the accused had committed the

offence; (ii)  nature and gravity of  the charge;  (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 grant or refusal to

grant bail.

26. As discussed earlier, 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

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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.  

27. The  learned  Solicitor  General  submitted  that  when  the

accused is facing grave charges and when he entertains doubts of

possibility  of  his  being conviction,  there is  a  “flight  risk”.   It  was

submitted that the appellant has wherewithal to flee away from the

country and prayed to refuse bail to the appellant on the ground of

“flight  risk”  also.   We  find  no  merit  in  the  submission  that  the

appellant is a “flight risk” and there is possibility of his abscondence.

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.  On behalf of the appellant, it is

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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.   We find merit  in  the

submission of the learned Senior counsel for the appellant 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.

28. So  far  as  the  allegation  of  possibility  of  influencing  the

witnesses, the High Court referred to the arguments of the learned

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.  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

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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. 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.   As rightly  contended by the

learned  Senior  counsel  for  the  appellant,  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

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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.

30. The learned Solicitor General submitted that the statement of

witness ‘X’ who is said to have been approached not to disclose any

information regarding the appellant and his son, has been recorded

under Section 164 Cr.P.C. in which the said witness ‘X’ has made

the  statement  that  he  has  been  approached.   Statement  under

Section 164 Cr.P.C.  of  the said witness ‘X’ is  said to have been

recorded on 15.03.2018.  The said witness allegedly approached or

the other witnesses in a case of the present 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.

31. It  is  to  be pointed  out  that  the  respondent  -  CBI  has  filed

remand applications seeking remand of  the appellant  on various

dates  viz.  22.08.2019,  26.08.2019,  30.08.2019,  02.09.2019,

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05.09.2019 and 19.09.2019 etc.  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 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 appellant has influenced the

witnesses  and  there  is  likelihood  of  his  further  influencing  the

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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 on  18.10.2019.

The appellant is in custody from 21.08.2019 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 above factors and the facts and

circumstances of the case, we are of the view that the appellant is

entitled to be granted bail.

33. In  the  result,  the  impugned  judgment  dated  30.09.2019

passed by the High Court of Delhi in Bail Application No.2270 of

2019 is set aside and the appeal arising out of SLP(Crl.) No.9269 of

2019 is allowed.  The appellant is ordered to be released on bail if

not  required  in  any  other  case,  subject  to  the  condition  of  his

executing bail bonds for a sum of Rs.1,00,000/- with two sureties of

like sum to the satisfaction of the Special Judge (PC Act), CBI-06,

Patiala  House  Courts,  New  Delhi.  The  passport  if  already  not

deposited,  shall  be  deposited  with  the  Special  Court  and  the

appellant shall  not leave the country without leave of the Special

Court and subject to the order that may be passed by the Special

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Judge from time to time. The appellant shall make himself available

for interrogation as and when required.  Consequently, the appeal

arising  out  of  SLP(Crl.)  No.9445  of  2019  preferred  by  the  CBI

stands dismissed. Since the High Court, in the impugned judgment,

has expressed its views on the merits of the matter, the findings of

the  High  Court  in  the  impugned  judgment  shall  not  have  any

bearing either in the trial or in any other proceedings.   It is made

clear that the findings in this judgment be construed as expression

of opinion only for the limited purpose of considering the regular bail

in  CBI  case  and  shall  not  have  any  bearing  in  any  other

proceedings.

………………………..J.                                                                          [R. BANUMATHI]

………………………..J.                                                                  [A.S. BOPANNA]

………………………..J.                                                                      [HRISHIKESH ROY]

New Delhi; October 22, 2019

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