By Amritananda Chakravorty
After spending more than two months in custody, the Supreme Court on October 22 granted bail to Shri P. Chidambaram, former Union Home Minister, and Senior Advocate, in the INX Media case. The Court was hearing an appeal from the Delhi High Court order dated 30.09.2019 dismissing Mr. Chidambaram’s bail application, though the High Court found that there was no evidence of ‘flight risk’ or ‘tampering of evidence’. Before we analyse the Supreme Court’s bail order, it is important to understand the facts of this bizarre case, where a person accused of murdering her daughter, i.e., Indrani Mukerjee is ‘pardoned’ by CBI, and on the basis of her statement, he was arrested on 21st August, 2019.
On 17th May, 2017, the CBI registered a FIR under Sections 120B, 420, IPC read with Sections 8, 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 against the directors of INX Media, i.e., Indrani Mukherjee, Peter Mukherjee, Karti Chidambaram, and unknown government officials amongst others. The allegation was that INX Media received Rs 305 crores foreign direct investment, though only Rs 4.62 cr were approved, owing to alleged irregularities with clearances from Foreign Investment Promotion Board (‘FIPB’) under the aegis of the then finance minister, Mr. Chidambaram in May, 2007.
Fearing arrest, Mr. Chidambaram filed an application for anticipatory bail, and he was granted interim protection from arrest from May, 2018 to 20th August, 2019, when his anticipatory bail was dismissed by the High Court in a highly problematic decision, riddled with incorrect application of law, thereby paving the way for his arrest on 21.08.2019.
Much water has flown since then, yet one cannot forget that Chidambaram was denied an urgent hearing challenging the anticipatory bail order of Delhi High Court by the Supreme Court for almost two days, thereby causing huge outrage amongst senior members of the Bar who were astonished that in an urgent case of personal liberty, the Supreme Court insisted on procedural technicalities of listing, and failed to do substantive justice. On top of it, when the appeal finally came to be heard, after the arrest of Chidambaram, the Court washed off its hands stating that the appeal had become infructuous, but no self-reflection on why the highest constitutional court could not hear an urgent matter of an opposition leader alleging the Government’s vendatta politics.
On 18th October, 2019, the CBI filed a chargesheet stating that Chidambaram allegedly conspired with his son Karti Chidambaram, and allegedly took illegal gratification of Rs 10 lakhs (!), by misusing his official position and to help INX Media in getting FIPB’s clearance.
In the present order, the Supreme Court adopts a safe route of assessing the High Court’s order denying regular bail to Chidambaram through established legal principles, i.e., flight risk, tampering of evidence, and influencing witnesses. In fact, the High Court clearly found that there was no evidence provided by the prosecution on the possibility of ‘flight risk’ and ‘tampering of evidence’ by Chidambaram, but the Court held that since the investigation was in an advance stage, the possibility of the witnesses being influenced could not be ruled out, and thus dismissed the bail application. Against this order, Chidambaram came to Supreme Court, while the CBI also filed against a cross-appeal against the High Court’s findings that there was no ‘flight risk’.
While examining the issue of ‘flight risk’, the Supreme Court rejected the CBI’s contention that “since many economic offenders have fled from the country and the nation is facing this problem of the economic offenders fleeing the country”, there was a strong possibility of the same happening in the present case. The Court agreed with Chidambaram’s counsel’s submission that he had strong roots in the society, and there was no ‘flight risk’, since he had surrendered his passport and there was a ‘look out notice’ against him. On tampering of evidence too, the Supreme Court agreed with the High Court’s finding that documents relating to the case were in the custody of the Government and the Court, and there was no chanceof Chidambaram tampering with evidence.
On the issue of ‘influencing witnesses’, on the basis of which the High Court denied bail, the Supreme Court rejected the High Court’s finding, and held that there was no evidence of Chidambaram influencing witnesses till date, either directly or indirectly, and no such allegation had been made in the 6 remand applications filed by CBI. The Court rejected the CBI’s vague contention that two material witnesses were approached on the ground that no details were given as to “when, where and how those witnesses were approached.” The Court specifically noted that “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.”
Thus, Chidambaram was granted bail in the CBI case, but he would be still in custody, owing to the case filed by ED, but entitled to apply for bail in that case also.
The last two months in P. Chidambaram’s case have again clearly shown that the Government is using CBI/ED to fix its political opponents, by implicating them in completely bogus and false allegations. Of course, Mr. Chidambaram may be guilty of wrongdoing, while in public office, but this Government does not care about unearthing the truth or punishing the guilty, but only to crush political opposition. The fact that CBI has now ‘pardoned’ Indrani Mukherjee, merely because she has agreed to implicate Chidambaram, speaks volumes of the intent behind the present witchhunt. But the sad part is that even the judiciary has also played a role in allowing this political witchhunt to continue, even for two months. [P. Chidambaram v. CBI, Criminal Appeal No. 1603 of 2019, date of order: 21.10.2019] (IPA Service)
The writer is a Delhi based lawyer.