P. Chidambaram vs Central Bureau of Investigation...

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SYNOPSIS

1. Petitioner is aggrieved by the impugned final judgment and

order dated 30.09.2019 passed by the Ld. Single Judge of the

Hon’ble High Court of Delhi at New Delhi in Bail Application No.

2270 of 2019 titled as P. Chidambaram vs Central Bureau of

Investigation (hereinafter referred to as the ‘impugnedjudgement’). Vide the impugned judgment, the Ld. Single has

refused to exercise the discretion of granting bail under Section

439 of the Code of Criminal Procedure, 1973 and has dismissed

the regular bail application of the Petitioner.

2. The Petitioner is a Senior Advocate practicing in this Hon’ble

Court with 49 years of standing at the Bar, out of which, he has

35 years standing as a Senior Advocate. Currently, he is a

Member of Parliament (Rajya Sabha). He was formerly Union

Minister of Finance (1996-1998, 2004-2008 and 2012-2014) and

Union Minister of Home Affairs (2008-2012). He is a member of

the Indian National Congress, which is the principal Opposition

party in Parliament, and has been in public life for over 40 years.

The Petitioner is also a senior spokesperson of the Congress

party as well as a prominent and widely-read columnist.

3. The Petitioner, who is currently in judicial custody, has been

incarcerated for 42 days including maximum permissible period

of 15 days of CBI custody remand, and therefore, his continuing

incarceration is in the form of punishment as his custody can

neither be taken nor is required for the purpose of investigation.

4. The Ld. Single Judge declined bail despite categorically holding

that:

(a) The Petitioner is not a flight risk, and would be available for

facing trial;

Ba:r & Bench (www.barandb,ench.com)

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(b) No evidence has been placed on record that the Petitioner

has ever attempted or has in fact tampered with any evidence

or even capable of tampering evidence.

5. The only reason given by the Ld. Single Judge while rejecting

the regular bail is:-

“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 the 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 witnesses directly or indirectly,

cannot be ruled out in view of the facts. Moreover, the

investigation is at advance stage, therefore, this Court is not

inclined to grant bail”.

6. At the outset, Firstly, the Petitioner categorically states that at

no point in time, whether prior to the lodging of the FIR dated

15.05.2017 or thereafter, has the Petitioner approached or

influenced any of the alleged material witnesses (accused) or

even attempted to do so, directly or indirectly. The Ld. Single

Judge has not even found that the Petitioner has approached or

influenced, or attempted to approach or influence, the two

material witnesses or accused, as set out in the impugned order.

Given that such an allegation was made in a sealed cover, the

Petitioner had no opportunity to show the allegation to be

demonstrably false. The liberty of the Petitioner has thus been

denied on the basis of the above baseless, anonymous and


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unverified allegation made behind the Petitioner’s back. This is

violative of the ‘procedure established by law’ and the

Petitioner’s right under Article 14 and 21 of the Constitution

because

7. Secondly, without prejudice to the above, even the alleged

statements of alleged material witnesses (accused) has no

evidentiary value since a co- accused can never be a witness in

the proceedings. Consequently, the conclusion of the Ld. Single

Judge is based on no material other than a false allegation made

in a sealed cover behind the back of the Petitioner. No

jurisprudential principle can be invoked in such circumstances

to deny the Petitioner bail on this ground alone.

8. Thirdly,

A) The reference to the two material witnesses (accused) having

being approached to not disclose information is not supported

by any material to show any personal meeting at any given place

or any other form of communication (such as SMS, Email, Letter,

Telephone calls etc.), which could lend any credibility to the

allegation made in the sealed cover.

B) In the absence of any contemporaneous credible material,

the Ld. Single Judge could not have relied upon any such

alleged statement given by the Respondent in a sealed cover.

C) It is not even the case of the Respondent that the Petitioner

himself or any person at his instance approached the alleged

material witnesses (accused). It is thus a travesty of justice that

on such a cooked-up allegation the Petitioner has been denied

his liberty.

D) Indeed, the handing over of material in the sealed cover and

getting the Investigating Officer to assist (as recorded in para 46

of the impugned judgement) is highly objectionable and


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operated as serious irreversible prejudice to the Petitioner and

is against all cannons of fair play and justice.

E) It is note-worthy to mention that this Hon’ble Court while

rendering judgment in Criminal Appeal No. 1340 of 2019, titled

P. Chidambaram Vs CBI @ Para 54, has deliberately and

consciously refrained from opening the sealed cover and

perusing the documents therein to avoid any prejudice to the

Petitioner herein.

9. Fourthly, in all the remand applications filed by the Respondent

dated 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019,

05.09.2019 and 19.09.2019, there is no allegation that any

material witnesses (accused) have been approached to not

disclose information about the Petitioner and his son. Therefore,

it is evident that the above allegation was made as an

afterthought in sealed cover only to prejudice the Petitioner’s

bail. In these circumstances, for the Ld. Single Judge to have

concluded that it cannot be ruled out that the Petitioner will not

influence witnesses directly or indirectly is ex-facie untenable,

particularly, since the CBI has not alleged that the Petitioner

himself approached the alleged two material witnesses

(accused). The basis on which the Ld. Single Judge came to the

above conclusion is not reflected in the impugned judgement.

Thus, the whole basis of denying the Petitioner bail is ex-facie

erroneous and violative of Article 14 and 21 of the Constitution.

10. Fifthly, it is settled proposition of law that a mere

apprehension without their being substantial evidence and

particulars of an accused approaching any witness, is not

enough to deny bail to an accused. However, Ld. Single Judge

despite holding that the Petitioner is not a flight risk and is not in

a position to tamper evidence has refused to grant bail on a

mere apprehension of the likelihood of petitioner influencing


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witness based on alleged statements of two alleged accused,

details of which are not even known to the Petitioner.

11. Sixthly, can the prosecution use the sealed cover procedure

to make an allegation, the substance of which (but not the

details) is not set out in the affidavit filed in response to the bail

petition, thus denying the Petitioner the opportunity to respond

to such allegations and to convince the Court that taken at its

face value, such an allegation has been manufactured to

prejudice the bail application of the Petitioner.

12. Further, the Ld. Single Judge has not appreciated the other

overwhelming considerations/ factors in favour of the Petitioner

for grant of bail, which are as under:-

a. The First Information Report being RC No RC2202017-E-

0011 is itself registered on 15.05.2017 and itself notes that

the period of offence is 2007-08, more than 11 years old.

b. The Petitioner is not named in the FIR. There is no reference

or allegation against the Petitioner in the FIR.

c. The Petitioner was always ready and willing to cooperate with

investigation and in fact joined the investigation on the sole

occasion when he was summoned by the Respondent on

06.06.2018. The Petitioner was never summoned again until

20.08.2019, for a period of about one and a half years,

despite being available for investigation.

d. All other accused persons are on bail, regular, anticipatory or

statutory. The Respondent has rightly not arrested any other

public servant as decisions have been taken by them as per

the prevailing policy.


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e. There is no allegation of any financial loss to the public

exchequer.

f. There is also no allegation of siphoning of any funds, and on

the contrary, the instant case is a case where a huge sum of

money in form of Foreign Direct Investment has come into

the Country as per the prevailing policies of the Government

of India.

g. As per normal procedure, the FDI proposal of INX Media was

processed by several officers in the FIPB Unit. Thereafter, it

was put up to the FIPB (comprising of 6 Secretaries), which

after due consideration, made its recommendations to the

Ministry of Finance. In the Ministry, the case was once again

examined by several officers (from the Under Secretary all

the way up to the Additional Secretary) of the Department of

Economic Affairs (DEA). Thereafter, the case was put up to

the Secretary, DEA (who had previously considered and

recommended the case as Chairman of the FIPB) who once

again signed the file and put it up to the competent authority

(Finance Minister) on 28.05.2007. The Petitioner approved

the file on the same day.

h. Similarly, the downstream approval was processed,

examined and recommended by all the above officers and

put up to the competent authority (Finance Minister) on

30.10.2008. The Petitioner approved the file on the same

day. From the above, it is evident no single officer can take a

decision on any proposal. It is a collective decision of six

Secretaries, assisted by several officers in the FIPB Unit and

the Department of Economic Affairs respectively. Therefore,

it is preposterous to allege that any person, such as the

Petitioner or the Petitioner’s son, could have influenced any


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official of the FIPB, including all 6 (Six) senior Secretaries to

the Government of India.

i. That none of the officers of the FIPB or of the Department of

Economic Affairs, Ministry of Finance have stated that they

were advised or directed or in any way influenced by the

Petitioner or his son, in any manner whatsoever, to grant the

FIPB approval to INX Media.

j. The FDI of Rs. 305 crores received by INX Media Ltd. (which

is the gravamen of the case) was reported to:

i. The Reserve Bank of India

ii. The Department of Industrial Policy & Promotion

(DIPP)

iii. Ministry of Information & Broadcasting

None of the above departments took objection that the

investment was in excess of the approved limit, since it was

well within the approved limit of 46.216%

k. Bail is the rule, jail is the exception. Arrest and custody are a

humiliation and social stigma. The prosecution seems to

think that prolonged judicial custody is a punishment they can

impose on the Petitioner. Courts should frown upon the

attempt of the prosecution to use judicial custody as a kind of

pre-trial punishment.

l. A fundamental principle of our criminal jurisprudence is that

every person is innocent until proved guilty and bail is the rule

and refusal is an exception.

i. Gurbaksh Singh Sibbia & Ors. Vs. State of

Punjab, [(1980) 2 SCC 565 @ Para 27 (5

Judges)]


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ii. Siddharam Satlingappa Mhetre Vs. State of

Maharashtra [(2011) 1 SCC 694 @ Para 86]

m. The Petitioner is 74 years old. His health is frail. He has been

kept in a cell and given food that he is not accustomed to. He

has already lost 4 kgs. weight in the period of judicial custody.

The Court may impose any conditions while granting bail.

13. A) Apart from the above, it is further submitted that, while

holding in Para 47 of the impugned judgment that only three

factors had to be seen while dealing with the bail application i.e.

(i) flight risk, (ii) tampering with evidence and (iii) influencing

witnesses, the Ld. Single Judge has rendered findings on the

merits of the case itself, at the stage of bail, when even the final

report has not been filed. As such, the Ld. Single Judge has held

contrary to his own finding in Para 47 and has considered factors

other than those relevant for the purpose of consideration of bail.

B) In any event under well-established bail jurisprudence these

purported findings shall be treated as having no effect in terms

of the merits of the case and/or the trial, if any which is yet to

begin.

C) It is reiterated that once the triple test as above has been

applied, mere subjective assessments of the gravity of the

offence, or observations/purported observations on merits

should not prejudice the Accused as far as his bail is considered.

D) If at all gravity of offence translating into purported

conclusions on merits is concerned, then the following clear

mandate of this Hon’ble Court in Sanjay Chandra v. CBI, (2012)1 SCC 40:

39. Coming back to the facts of the present case, both thecourts 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;


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the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.

(emphasis supplied)

14. The Petitioner had made submissions limited to the

applicability of certain Press Notes and the correctness of the

decisions taken by the FIPB and the Finance Ministry only to

show prima facie, for the purposes of grant of bail, that the

allegations against the Petitioner are not correct. However, the

Ld. Single Judge rendered conclusive findings on the merits of

the allegations itself to the prejudice of the Petitioner and his

impending trial, which approach is completely contrary to the law

laid down by this Hon’ble Court in Niranjan Singh & Anr. VsPrabhakar Rajaram Kharote & Ors., (1980) 2 SCC 559, Para3. The relevant portion is reproduced below:

“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.”

15. Furthermore, the above conclusive findings have been

rendered on the basis of documents in sealed envelope, which

never formed part of the record and which were never shown to

the Petitioner to give him an opportunity to rebut. These

documents were submitted in a sealed cover at the conclusion

of the hearing and never formed part of the record of the bail

proceedings as they were not filed along with an Affidavit by the


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Respondent. Hence, it is submitted that the incarceration of the

Petitioner in judicial custody has been affirmed on basis of

documents:

a) the contents of which are unknown to the Petitioner;

b) the Petitioner was never afforded any opportunity to

controvert either the documents or the contents

thereof;

c) that such documents can never form part of a Case

Diary under Section 172 of the Code of Criminal

Procedure, 1973 and hence, can never be subject

matter of inspection / reliance by any court for the

purpose of consideration of Bail under Section 439 of

the Code of Criminal Procedure, 1973.

7. Lastly, it is submitted that, again contrary to his own

observations in Para 47 vis-à-vis the three parameters for

consideration of bail, the Ld. Single Judge considered, and

incorrectly held that the instant case being an economic offence

constitutes a class apart. The instant case is in fact not an

economic offence in so far as the Respondent is concerned in

as much as there is no loss to the public exchequer in this case.

No public funds were involved in this case and it also not a case

of bank fraud or taking money out of the country or defrauding

depositors or stealing money from a company. On the contrary,

Rs. 305 Crore has come into INX Media (i.e. the investee

company) as FDI, well within the approval percentage of

46.216% of equity.

Hence the present Special Leave Petition.

LIST OF DATES


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01.04.1999 Government of India Ministry of Industry through

Department of Industrial Policy & Promotion

released a Press Note No. 7/(1999 series) on

01.04.1999.

True copy of the Press Note No. 7 (1999 series)

dated 01.04.1999 issued by the Government of

India Ministry of Industry is annexed herewith

and marked as ANNEXURE P-1

[PG……TO……]

12.04.1999 Government of India Ministry of Industry through

Department of Industrial Policy & promotion

released a Press Note No. 9/(1999 series),

wherein policy relating to the standard conditions

applicable to foreign owned Indian holding

companies requiring prior and specific approval

of FIPB / Government for downstream

investment was stated.

13.01.2006 That Government of India, Ministry of Commerce

and Industry through Department of Industrial

Policy and Promotion released a Press Note 1

(2006 Series) on Foreign Direct Investment (FDI)

in Uplinking of TV Channels. True copy of the

Press Note 1 (2006 Series) dated 13.01.2006

released by Joint Secretary to the Government


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of India is annexed herewith and marked as

ANNEXURE P-2 [PG……TO……]

10.02.2006 Government of India, Ministry of Industry through

Department of Industrial Policy & promotion

released Press Note No. 4 (2006 series). True

copy of the Press Note 4 (2006 Series) dated

10.02.2006 released by Joint Secretary to the

Government of India is annexed herewith and

marked as ANNEXURE P-3 [PG……TO……]

13.03.2007 An application was filed by INX Media Private

Limited with the Chairman Foreign Investment

Promotion Board (FIPB) inter alia seeking

approval of the FIPB for permission to issue

equity shares and preference shares collectively

representing approximately shares collectively

representing approximately 46.216% of the

issued equity share capital of INX Media.

True copy of the application dated 13.03.2007

filed by INX Media Private Limited before

Chairman Foreign Investment Promotion Board

is annexed herewith and marked as ANNEXURE

P-4 [PG…… TO……]

18.05.2007 Minutes of the 98th Meeting of the reconstituted

FIPB held on 18th May 2007 at 1500 hours,

recorded by Director (Inv & FIPB). True copy of

the relevant extract of the Minutes of the 98th


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Meeting of the FIPB held on 18th May 2007 at

1500 hours is annexed herewith and marked as

ANNEXURE P-5 [PG…… TO……]

31.05.2007 That Government of India, Ministry of Finance

through Department of Economic Affairs, FIPB

Unit sent an approval letter to INX Media Pvt. Ltd.

True copy of the Letter of Approval issued by

FIPB Unit Ministry of Finance to INX Media

Private Limited dated 31.05.2007 is annexed

herewith and marked as ANNEXURE P-6

[PG……TO……]

29.07.2008 Ms. Sunita Kalia, Member CBDT, Department of

Revenue, Ministry of Finance, Government of

India issued a letter dated 29.07.2008 to Ms.

Sindushree Khullar, Additional Secretary,

Department of Economic Affairs, Ministry of

Finance, Government of India.

Copy of the letter dated 29.07.2008 issued by

Ms. Sunita Kalia, Member CBDT, Department of

Revenue, Ministry of Finance, Government of

India to Ms. Sindushree Khullar, Additional

Secretary, Department of Economic Affairs,

Ministry of Finance, Government of India is

annexed herewith and marked as ANNEXURE

P-7 [PG……TO……]


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21.08.2008 An application dated 21.08.2008 filed by INX

News Private Limited with the Chairman, FIPB

inter alia seeking approval of the FIPB for

downstream investment from INX Media Pvt. Ltd

to the extent of 26% of the issued equity capital

of INX News Pvt. Ltd.

True copy of the application dated 21.08.2008

filed by INX Media Private Limited before

Chairman Foreign Investment Promotion Board

is annexed herewith and marked as ANNEXURE

P-8 [PG……TO……]

02.09.2008 A Letter written by Ms. Sindushree Khullar, the

then Additional Secretary, Department of

Economic Affairs, Ministry of Finance to CBDT

explaining Press Note No.7 of 1999 issued by

the Government of India, Ministry of Industry.

True copy of the letter dated 02.09.2008 written

by the then Additional Secretary, Department of

Economic Affairs, Ministry of Finance to CBDT is


P-9 [PG…… TO ……]

24.10.2008 Minutes of the 128th Meeting of the reconstituted

FIPB held on the 24th October 2008 at 1500

hours.

True copy of the Minutes of 128th Meeting of the

reconstituted FIPB held on the 24th October 2008


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at 1500 hours is annexed herewith and marked

as ANNEXURE P-10 [PG……TO……]

21.11.2008 That FIPB unit Ministry of Finance vide Letter

dated 21.11.2008 sent an approval letter to INX

Media Pvt. Ltd. True copy of letter of approval

issued by Government of India through Ministry

of Finance, Department of Economic Affairs,

FIPB Unit in favour of INX Media Pvt. Ltd is


P-11 [PG……TO……]

15.05.2017 CBI registered an RC No 2202017 E-0011 under

Section 120B read with section 420 IPC and

section 8 and 13(2) read with 13(1)(D) of the

Preventing of Corruption Act, wherein Petitioner

is neither named as an accused nor as a suspect

in the FIR. There is no allegation against the

Petitioner in the body of the subject FIR. Further,

the allegations in the subject FIR pertain to the

grant of an FIPB approval in 2007-08, for which

the subject FIR came to be registered after a

period of almost 10 years based on alleged ‘oral

source’ information.

True copy of FIR being no. RC 2202017-E-0011

dated 15.05.2017 registered by the Police of P.S.

CBI, EOU,IV/EO-II, New Delhi is annexed


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[PG……TO……]

23.03.2018 The Hon’ble High Court was pleased to grant

regular bail to Karti P. Chidambaram (son of

Petitioner) in Bail Application 573 of 2018. True

copy of the order dated 23.03.2018 passed by

the Hon’ble High Court of Delhi at New Delhi in

Bail Application No. 573 of 2018 is annexed


[PG……TO……]

04.04.2018 The Ld. Special Judge was pleased to grant

anticipatory bail to S. Bhaskararaman. True copy

of order dated 04.04.2018 passed by Ld. Special

Judge PC Act CBI-06, Patiala House Courts,

New Delhi in RC No. 220/2017 EC-0011 in the

case titled as CBI Vs. M/s INX News Private

Limited is annexed herewith and marked as


28.05.2018 That the Respondent issued a Notice dated

28.05.2018 bearing no. ‘01/4406’ u/s 41A of the

Cr.P.C. directing the Petitioner herein to appear

before the CBI on 31.05.2018 at 11.00 hours.

True copy of the Notice dated 28.05.2018

bearing no. ‘01/4406’ u/s 41A of the Cr.P.C is


P-15 [Pg……to…….]


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28.05.2018 The Ld. Special Judge was pleased to grant

default bail to Pritam Mukerjee @ Peter

Mukherjea.

True copy of order dated 28.05.2018 passed by

Ld. Special Judge PC Act CBI-06, Patiala House

Courts, New Delhi in RC No. 220/2017 EC-0011

in the case titled as CBI Vs.M/s INX News Private

Limited is annexed herewith and marked as


30.05.2018 That the Petitioner apprehending his arrest was

constrained to prefer a petition (being B.A. No.

1316/2018) before the Hon’ble High Court of

Delhi under Section 438 Cr.P.C. seeking grant of

anticipatory bail.

31.05.2018 That vide Order dated 31.05.2018, the Hon’ble

High Court was pleased to issue notice in the

abovementioned anticipatory bail Application

and was also pleased to grant interim protection

to the Petitioner, which interim protection

continued for a period of over 15 months.

06.06.2018 During the pendency of the above bail

application, the Petitioner was summoned by the

CBI to appear on 06.06.2018, on which date the

Petitioner duly appeared and answered all


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questions. Pertinently, the CBI did not summon

the Petitioner thereafter until 20.08.2019.

03.07.2018 That a short reply was filed by the Respondent

herein in the anticipatory bail application being

B.A. No. 1316 of 2018.

True copy of the short reply dated 03.07.2019

filed by the CBI in B.A. No. 1316 of 2018 is


P-17 [PG……TO…….]

03.08.2018 This Hon’ble Court in Central Bureau of

Investigation Vs. Karti P.Chidambaram, SLP

(Crl) No. 5499 of 2018 dismissed the said

Special Leave Petition without interfering with

the order of the High Court wherein Karti P.

Chidambaram was granted bail. True copy of the

order dated 03.08.2018 passed by this Hon’ble

Court in SLP (Crl) No. 5499 of 2018 is annexed


[Pg……to…….]

20.08.2019 The Hon’ble High Court was pleased to dismiss

the Petitioner’s abovementioned Anticipatory

Bail Application at around 15:15 hours.

True copy of the Order dated 20.08.2019 passed

by the Hon’ble High Court of Delhi at New Delhi

in Anticipatory Bail Application No 1316 of 2018


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is annexed herewith and marked as Annexure

P-19 [Pg…….to…….].

On the same day, the Counsels for the Petitioner

sought an urgent listing and made an oral

mention before the concerned officer of the

department of this Hon’ble Court and was

informed on or around 16.45 hours on

20.08.2019 that the permission has been

granted, by the Hon’ble Chief Justice of India, to

mention the matter at 10.30 AM on 21.08.2019

before the Senior Most Hon’ble Judge of this

Hon’ble Court. The said facts were widely

covered in the media and as such, it is submitted

that the CBI was well aware of the said facts.

True copy of the India Today media report dated

20.08.2019, is annexed herewith as ANNEXURE

P-20 [Pg……to…….].

20.08.2019 At around midnight on 20.08.2019, while the

Petitioner was preparing his challenge against

the Order dated 20.08.2019 with his lawyers, it

came to the Petitioner’s knowledge from media

reports that the CBI, in a completely mala fide

and illegal manner, and after a period of almost

15 months from the last summons, affixed a

notice outside the Petitioner’s residence


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directing him to appear before the CBI within 2

(Two) hours. Pertinently, the Notice failed to

mention the provision under which it was issued.

It is the Petitioner’s case that the CBI had to

issue a Notice u/s 41A Cr.P.C. in view of the

directions of the Hon’ble Supreme Court in

Arnesh Kumar Vs State of Bihar, reported in

(2014) 8 SCC 273, since all offences alleged in

the FIR were punishable up to 7 years at the time

of commission of the alleged offences.

Typed copy of the Notice dated 20.08.2019

issued by the CBI is annexed herewith as

ANNEXURE P-21 [Pg……to…….].

21.08.2019 The Petitioner duly responded to the said notice

vide Email dated 21.08.2019 sent through his

Counsel wherein it was inter alia stated as under:

“I am instructed to state that your Notice fails to

mention the provision of law under which

my Client has been issued a notice at

midnight calling upon him to appear at a

short notice of 2 (Two) hours. Furthermore,

kindly note that my Client is exercising the

rights available to him in law and had

approached the Hon’ble Supreme Court

on 20.08.2019 seeking urgent reliefs in

respect of the Order dated 20.08.2019

dismissing his anticipatory bail application

no. 1316/2018 in the captioned FIR.


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[…]

I therefore request you to not take any coercive

action against my Client till then.”

Typed copy of the Email dated 21.08.2019

issued by the Petitioner’s Counsel in response to

the Notice dated 20.08.2019 of the CBI is

annexed herewith as ANNEXURE P-22

[Pg……to…….].

21.08.2019 The Petitioner approached this Hon’ble Court

vide SLP (Crl.) No. 7525/2019 impugning the

Order dated 20.08.2019 passed by this Hon’ble

Court dismissing the Petitioner’s anticipatory bail

Application, which upon urgent mentioning, was

directed to be listed before the Hon’ble Chief

Justice of India for urgent hearing.


by the Hon’ble Supreme Court in SLP (Crl.) No.

7525/2019 is annexed herewith as ANNEXURE

P-23 [Pg……to…….].

21.08.2019 That despite the above, the CBI, without any

notice to the Petitioner, approached the Ld. Trial

Court for issuance of Non-Bailable Warrants

against the Petitioner and the Ld. Trial Court was

pleased to direct the issuance of the NBW’s.


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Pertinently, in the Application filed by the CBI

before the Ld. Trial Court, the Petitioner’s reply

(vide Email dated 21.08.2019) to the Notice

dated 20.08.2019 was not mentioned.

Furthermore, a perusal of the Order Sheet of

21.08.2019 of the Ld. Trial Court whereby the

NBW’s were issued, shows that the CBI did not

inform the Ld. Trial Court that the Petitioner’s

SLP was directed to be listed for urgent hearing

on 21.08.2019, despite a specific query by the

Ld. Trial Court, as recorded in the said order

sheet. As such, the CBI misled the Ld. Trial Court

to issue the NBW’s against the Petitioner herein.

Typed copy of the Application filed by the CBI for

issuance of the NBW’s dated 21.08.2019 before

Ld. Special Judge, PC Act (CBI)-09, Rouse

Avenue Court Complex New Delhi, is annexed

herewith as Annexure P-24 [Pg……to…….].

Typed copy of the Order dated 21.08.2019

passed by the Ld. Special Judge, PC Act (CBI)-

09, Rouse Avenue Court Complex New Delhi

issuing the NBW’s is annexed herewith as

Annexure P-25 [Pg……to…….].


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Despite the pendency of the abovementioned

SLP, the CBI, in a completely illegal and mala

fide manner, came to the Petitioner’s residence

at around 9.30-10 PM on 21.08.2019 and

arrested the Petitioner in pursuance of the said

Non-Bailable Warrants.

True copy of the Arrest Memo dated 21.08.2019

issued by the CBI is annexed herewith as


22.08.2019 The Petitioner was thereafter produced before

the Ld. Trial Court on 22.08.2019 and the CBI

preferred an Application seeking 5 days police

remand.

True copy of the Application dated 22.08.2019

filed by the CBI seeking police remand before Ld.

Special Judge, PC Act (CBI)-09, Rouse Avenue

Court Complex New Delhi is annexed herewith

as ANNEXURE P-27 [Pg…… to…….].

That vide Order dated 22.08.2019, the Ld. Trial

Court was pleased to remand the Petitioner to

CBI custody till 26.08.2019.


24


by the Ld. Special Judge, PC Act (CBI)-09,

Rouse Avenue Court Complex New Delhi is

annexed herewith as ANNEXURE P-28

[Pg……to…….].

26/27.08.2019 The Petitioner’s SLP being SLP (Crl.) No.

7525/2019 was listed before the Hon’ble

Supreme Court which dismissed it as infructuous

in view of the subsequent arrest of the Petitioner.

Vide Order dated 27.08.2019, the Hon’ble

Supreme Court was pleased to clarify the above

Order dated 26.08.2019 and directed as under:

“The contentions raised by both the parties are

left open to be considered at the

appropriate stage on their own merits

without being influenced by any of the

views expressed by the High Court in the

impugned order.”

True copy of the common Order dated

26.08.2019 passed by this Hon’ble Court in SLP

(Crl.) No. 7523/2019 and SLP (Crl.) No.

7525/2019 is annexed herewith as ANNEXURE

P-29 [Pg……to…….].


25

In the meantime, on 26.08.2019, the Petitioner

was produced before the Ld. Trial Court and the

CBI sought further 5 days police remand.


filed by the CBI seeking further 5 days police

remand is annexed herewith as ANNEXURE P-

30 [Pg……to…….].

Vide Order dated 26.08.2019, the Ld. Trial Court

was pleased to remand the Petitioner to further

CBI custody until 30.08.2019.



Rouse Avenue Court Complex New Delhi in RC

No. 220 2017 E 0011 is annexed herewith as

ANNEXURE P-31 [Pg…… to…….].


by this Hon’ble Court in SLP (Crl.) No. 7523/2019

is annexed herewith as ANNEXURE P-32

[Pg……to…….].

30.08.2019/

02.09.2019 Thereafter, the Petitioner was produced before

the Ld. Trial Court on 30.08.2019 and

02.09.2019, on which dates the CBI sought


26

further 5 days and 3 days police remand

respectively. Vide Orders dated 30.08.2019,

02.09.2019 and 03.09.2019, the Ld. Trial Court

was pleased to remand the Petitioner to further

CBI custody until 02.09.2019, 03.09.2019 and

05.09.2019 respectively.




33 [Pg……to…….].






Typed copy of the Application dated 02.09.2019



35 [Pg……to…….].





27






No. 220 2017 E 011 is annexed herewith

as ANNEXURE P-37 [Pg……to…….].

02.09.2019 The Petitioner had also filed an application

seeking grant of interim bail before the Ld. Trial

Court in terms of the Order dated 02.09.2019

passed by the Hon’ble Supreme Court in SLP

(Crl.) No. 7618-19 of 2019. However, the said

Application became infructuous in terms of the

Order dated 05.09.2019 of the Hon’ble Supreme

Court in SLP (Crl.) No. 7618-19 of 2019, which is

explained hereinafter.

05.09.2019 Thereafter, on 05.09.2019, the Petitioner was

produced before the Ld. Trial Court and the CBI

sought judicial custody of the Petitioner.


filed by the CBI seeking judicial custody of the

Petitioner is annexed herewith as ANNEXURE

P-38 [Pg……to…….].


28

05.09.2019 Vide Order dated 05.09.2019, the Ld. Trial Court

was pleased to remand the Petitioner to judicial

custody until 19.09.2019.




no. 220 2017 E 011 is annexed herewith as

ANNEXURE P-39 [Pg…… to…….].

Nil.09.2019 That the Petitioner in RC No. 2202017-E-0011

preferred a regular bail application under section

439 of Code of Criminal Procedure, 1973 before

the Hon’ble High Court in the case titled as P.

Chidambaram vs. CBI being Bail Application No.

2270 of 2019.

True copy of the Bail Application No. 2270 of

2019 filed by the Petitioner before the Hon’ble

High Court of Delhi at New Delhi dated nil

09.2019 is annexed herewith as ANNEXURE P-

40 [Pg……to…….].

12.09.2019 That the Hon’ble High Court of Delhi at New

Delhi in Bail Application No. 2270 of 2019 was

pleased to issue Notice and asked the CBI to file

response to the Bail Application.


29

True copy of Order dated 12.09.2019 issued by

the Hon’ble High Court of Delhi at New Delhi in

Bail Application No. 2270 of 2019 is annexed

herewith as ANNEXURE P-41 [Pg……to…….].

19.09.2019 The judicial custody of the Petitioner has been

extended till 03.10.2019.

20.09.2019 Respondent- CBI filed its reply / Counter Affidavit

dated Nil to the Bail Application No. 2270 of 2019

before the Hon’ble High Court of Delhi.

09.2019 That the Petitioner herein filed Rejoinder to the

Counter Affidavit filed by the Respondent herein

in Bail Application No. 2270 of 2019 although the

same was not taken on record.

30.09.2019 During the course of arguments, both the

Petitioner and the Respondent handed over

written arguments. The Hon’ble High Court vide

the impugned order passed in Bail Application

No. 2270 of 2019 has been pleased to dismiss

the Application for regular bail filed by the

petitioner.

03.10.2019 Hence the present SLP.


30

IN THE SUPREME COURT OF INDIA [S.C.R., ORDER XXII RULE 2(1)]

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Under Article 136 of the Constitution of India)

Special Leave Petition (CRL.) NO. _____ OF 2019

(ARISING OUT OF THE JUDGMENT AND FINAL ORDER DATED 30.09.2019 PASSED BY THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI IN BAIL APPLICATION NO. 2270 OF 2019)

[WITH PRAYER FOR INTERIM RELIEF)

IN THE MATTER OF:- POSITION OF THE PARTIES Before High Court

Before this Court

Sh. P. Chidambaram S/o Late Shri Palaniappan R/o 115-A, Jorbagh, New Delhi-110003

Petitioner Petitioner

VERSUS

Central Bureau of Investigation 1st Floor, Plot No 5-B, CGO Complex, Lodhi Road, New Delhi-110003 Through the Director

Respondent Respondent

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS OTHER COMPANIONS JUDGES OF

THIS HON’BLE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED:-


31

MOST RESPECTFULLY SHOWETH AS UNDER:-

1. The Petitioner seeks Special Leave to Appeal against the

impugned final judgment and order dated 30.09.2019 passed

by the Ld. Single Judge of the Hon’ble High Court of Delhi at

New Delhi in Bail Application No. 2270 of 2019 titled as P.

Chidambaram vs Central Bureau of Investigation whereby

the Ld. Single Judge has been pleased to reject the Petition

for Regular Bail filed by the Petitioner in case RC No

RC2202017-E-0011 dated 15.05.2017.

2. QUESTIONS OF LAW:

The following questions of law arise for the consideration by

this Hon’ble Court:-

A. Whether a mere apprehension that the Petitioner may

influence the witnesses, without any supporting material,

formed on the basis of unverified allegations that do not

allege or point anything against the Petitioner, is enough to

deny bail to the Petitioner under Section 439 Cr.P.C., when

the other factors i.e. flight risk and tampering of evidence are

in favour of the Petitioner?

B. Whether the High Court was justified in declining regular bail

to the Petitioner only on the basis of alleged statements of

co-accused that they have been approached to not disclose

information against the Petitioner, when these statements do

not point out that the Petitioner or any other person at his

instance has approached such co-accused?


32

C. Whether the High Court was justified in declining regular bail

on the basis of a vague allegation of approaching a co-

accused without even disclosing any material particulars

about such allegations to the Petitioner?

D. Whether the High Court ought to have relied upon such an

unverified allegations of co-accused being approached while

declining bail to the Petitioner solely on that ground?

E. Whether the High Court ought to have given credence to the

fact that from the date of the FIR dated 15.05.2019 till the

date of the last remand application dated 19.09.2019, there

was no allegation that a material witnesses (accused) were

approached to not disclose information and that in these

circumstances, the allegations in the sealed cover were

manufactured only to influence the outcome of the bail

petition?

F. Whether the Respondent ought to have placed the allegation

of approaching co-accused on an affidavit and not by way of

a sealed cover, particularly when no such allegation is

levelled in the Counter Affidavit filed in response the

Petitioner’s bail application?

G. Whether handing over of material in sealed cover against a

bail petitioner by the Investigating Agency, without an

affidavit, and without affording him an opportunity to rebut the

same, is contrary to the ‘procedure established by law’ under

Article 21 of the Constitution?


33

H. Whether the liberty of an accused can be curtailed and his

incarceration in judicial custody justified on basis of the

above procedure (production of documents in sealed

envelope), without there being any express provision in the

Code of Criminal Procedure, 1973 allowing such practice and

whether such practice would not be “a procedure established

by law” and hence, contrary to Article 21 of the Constitution

of India?

I. Whether economic offences constitute a class apart for the

purpose of exercise of jurisdiction under Section 439 of the

Code of Criminal Procedure, 1973 in spite of the law being to

be contrary by the Constitution Bench of this Hon’ble Court

in case of Gurbaksh Singh Sibbia Vs. State of Punjab,

(1980) 2 SCC 565, , Para 16 & 17?

J. Whether the High Court was justified in rendering conclusive

findings on merits of the case when it itself had rightly held

that there are only three parameters to be considered while

deciding a bail application viz. (i) flight risk; (ii) tampering with

evidence; and (iii) influencing witnesses?

K. Whether the High Court was justified in rendering findings on

merits of the case based on information/ material placed

before the High Court in a ‘sealed cover’ without affidavit, and

which information/ material was never even put to the

Petitioner during the course of the hearing?

L. Whether the approach of the High Court in rendering

conclusive findings on the merits of the case to the prejudice


34

of the Petitioner and his impending trial, is contrary to the law

laid down by this Hon’ble Court in Niranjan Singh & Anr. Vs

Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC 559,

Para 3?

3. DECLARATIONS IN TERMS OF RULE 2(2) :

The Petitioner states that no other petition seeking leave to

appeal under Article 136 of the Constitution of India has been

filed by him against the impugned judgment and final order

dated 30.09.2019 passed by the Hon’ble High Court of Delhi

at New Delhi in Bail Application No. 2270 of 2019.

4. DECLARATION IN TERMS OF RULE 4:

The Annexure P-1 to Annexure P-41 produced along with the

Special Leave Petition are the copies of the pleadings/

documents which formed part of the records in the High Court

against whose order the leave to appeal is sought for in this

Petition.

5. GROUNDS :

The Petitioner prefers this petition under Article 136 of the

Constitution of India for Special Leave to appeal from the

impugned judgment and final order dated 30.09.2019 passed

by the Hon’ble High Court of Delhi in Bail Application No.

1316/2018 on the following amongst other grounds, taken

without prejudice to each other:


35

A) Because the Ld. Single Judge erred in dismissing the

Petitioner’s bail application on a mere apprehension that the

Petitioner may influence the witnesses, without any

supporting material, which apprehension was formed on the

basis of unverified allegations that do not allege or point

anything against the Petitioner, when the other factors i.e.

flight risk and tampering of evidence were held in favour of

the Petitioner.

B) Because the Ld. Single Judge was not justified in declining

regular bail to the Petitioner only on the basis of alleged

statements of co-accused that they have been approached

to not disclose information against the Petitioner, when these

statements do not point out that the Petitioner or any other

person at his instance approached such co-accused.

C) Because the Ld. Single Judge was not justified in declining

regular bail on the basis of vague allegation of approaching

a co-accused without even disclosing any material particulars

about such allegations to the Petitioner.

D) Because the Ld. Single Judge ought to have given an

opportunity to the Petitioner to rebut the anonymous and

unverified allegations of co-accused being approached

before declining bail to the Petitioner solely on that ground.


36

E) Because the Ld. Single Judge ought to have given credence

to the fact that from the date of the FIR dated 15.05.2019 till

the date of the last remand application dated 19.09.2019,

there was no allegation that a material witnesses (accused)

were approached to not disclose information and that in

these circumstances, the allegations in the sealed cover

were manufactured only to influence the outcome of the bail

petition

F) Because the Ld. Single Judge erred in not appreciating that

the Respondent ought to have placed the allegation of

approaching co-accused on an affidavit and not by way of a

sealed cover, particularly when no such allegation is levelled

in the Counter Affidavit filed in response to the Petitioner’s

bail application.

G) Because the Ld. Single Judge has not even found that the

Petitioner has approached or influenced, or attempted to

approach or influence, the two material witnesses or

accused, as set out in the impugned order and despite the

same denied bail to the Petitioner. Further, given that such

an allegation was made in a sealed cover, the Petitioner had

no opportunity to show the allegation to be demonstrably

false. The liberty of the Petitioner has thus been denied on

the basis of the above baseless, anonymous and unverified

allegation made behind the Petitioner’s back. This is violative


37

of the ‘procedure established by law’ and the Petitioner’s right

under Article 14 and 21 of the Constitution because

H) Because without prejudice to the above, even the alleged

statements of alleged material witnesses (accused) has no

evidentiary value since a co- accused can never be a witness

in the proceedings. Consequently, the conclusion of the Ld.

Single Judge is based on no material other than a false

allegation made in a sealed cover behind the back of the

Petitioner. No jurisprudential principle can be invoked in such

circumstances to deny the Petitioner bail on this ground

alone.

I) Because the Ld. Single Judge failed to appreciate that the

reference to the two material witnesses (accused) having

being approached to not disclose information is not

supported by any material to show any personal meeting at

any given place or any other form of communication (such as

SMS, Email, Letter, Telephone calls etc.), which could lend

any credibility to the allegation made in the sealed cover. In

the absence of any contemporaneous credible material, the

Ld. Single Judge could not have relied upon any such alleged

statement given by the Respondent in a sealed cover.

J) Because the Ld. Single Judge failed to appreciate that in all

the remand applications filed by the Respondent dated


38

22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019,

05.09.2019 and 19.09.2019, there is no allegation that any

material witnesses (accused) have been approached to not

disclose information about the Petitioner and his son.

Therefore, it is evident that the above allegation was made

as an afterthought in sealed cover only to prejudice the

Petitioner’s bail. In these circumstances, for the Ld. Single

Judge to have concluded that it cannot be ruled out that the

Petitioner will not influence witnesses directly or indirectly is

ex-facie untenable, particularly, since the CBI has not alleged

that the Petitioner himself approached the alleged two

material witnesses (accused). The basis on which the Ld.

Single Judge came to the above conclusion is not reflected

in the impugned judgement. Thus, the whole basis of denying

the Petitioner bail is ex-facie erroneous and violative of

Article 14 and 21 of the Constitution.

K) Because the prosecution could not have used the sealed

cover procedure to make an allegation, the substance of

which (but not the details) was not set out in the affidavit filed

in response to the bail petition, thus denying the Petitioner

the opportunity to respond to such allegations and to

convince the High Court that taken at its face value, such an

allegation has been manufactured to prejudice the bail

application of the Petitioner.


39

L) Because the High Court failed to appreciate that the handing

over of material in sealed cover against a Petitioner by the

Respondent, without an affidavit, and without affording him

an opportunity to rebut the same, is contrary to the ‘procedure

established by law’ under Article 21 of the Constitution.

M) Because the liberty of the Petitioner cannot be curtailed and

his incarceration in judicial custody justified on basis of the

above procedure (production of documents in sealed

envelope), without there being any express provision in the

Code of Criminal Procedure, 1973 allowing such practice and

that such practice is not be “a procedure established by law”

and hence, contrary to Article 21 of the Constitution of India.

N) Because the finding of the High Court that economic offences

constitute a class apart for the purpose of exercise of

jurisdiction under Section 439 of the Code of Criminal

Procedure, 1973 is contrary to the law laid down by the

Constitution Bench of this Hon’ble Court in case of Gurbaksh

Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565, , Para

16 & 17.

O) Because the High Court while holding in Para 47 of the

impugned judgment that only three factors had to be seen

while dealing with the bail application i.e. (i) flight risk, (ii)

tampering with evidence and (iii) influencing witnesses, has


40

rendered findings on the merits of the case itself, at the stage

of bail, when even the final report has not been filed. As such,

the Ld. Single Judge has held contrary to his own finding in

Para 47 and has considered factors other than those relevant

for the purpose of consideration of bail.

P) Because the High Court was not justified in rendering

findings on merits of the case based on information/ material

placed before the High Court in a ‘sealed cover’ without

affidavit, and which information/ material was never even put

to the Petitioner during the course of the hearing.

Q) Because the Petitioner had made submissions limited to the

applicability of certain Press Notes and the correctness of the

decisions taken by the FIPB and the Finance Ministry only to

show prima facie, for the purposes of grant of bail, that the

allegations against the Petitioner are not correct. However,

the Ld. Single Judge rendered conclusive findings on the

merits of the allegations itself to the prejudice of the Petitioner

and his impending trial, which approach is completely

contrary to the law laid down by this Hon’ble Court in

Niranjan Singh & Anr. Vs Prabhakar Rajaram Kharote &

Ors., (1980) 2 SCC 559, Para 3. The relevant portion is

reproduced below:

“3….Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing


41

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.”

R) Because the High Court ought to have clarified/held that the

findings rendered were only prima facie for the purposes of

bail and should not have any bearing on the other

proceedings, particularly the impending trial and failure to do

so have rendered the impugned order untenable.

S) Because the above conclusive findings have been rendered

by the High Court on the basis of documents in sealed

envelope, which never formed part of the record and which

were never shown to the Petitioner to give him an opportunity

to rebut. These documents were submitted in a sealed cover

at the conclusion of the hearing and never formed part of the

record of the bail proceedings as they were not filed along

with an Affidavit by the Respondent. Hence, it is submitted

that the incarceration of the Petitioner in judicial custody has

been affirmed on basis of documents:

a) the contents of which are unknown to the Petitioner;

b) the Petitioner was never afforded any opportunity to

controvert either the documents or the contents

thereof;

c) that such documents can never form part of a Case

Diary under Section 172 of the Code of Criminal

Ba:r & Bench (www.barandb,ench.com) Ba:r & Bench (www.barandb,ench.com)

42

Procedure, 1973 and hence, can never be subject

matter of inspection / reliance by any court for the

purpose of consideration of Bail under Section 439 of

the Code of Criminal Procedure, 1973.

T) Because the Ld. Single Judge while dismissing the Regular

Bail, has not appreciated the other overwhelming

considerations/ factors in favour of the Petitioner, which are

as under:-

a. The First Information Report being RC No RC2202017-

E-0011 is itself registered on 15.05.2017 and itself

notes that the period of offence is 2007-08, more than

11 years old.

b. The Petitioner is not named in the FIR. There is no

reference or allegation against the Petitioner in the FIR.

c. The Petitioner was always ready and willing to

cooperate with investigation and in fact joined the

investigation on the sole occasion when he was

summoned by the Respondent on 06.06.2018. The

Petitioner was never summoned again until

20.08.2019, for a period of about one and a half years,

despite being available for investigation.

d. All other accused persons are on bail, regular,

anticipatory or statutory. The Respondent has rightly


43

not arrested any other public servant as decisions have

been taken by them as per the prevailing policy.

e. There is no allegation of any financial loss to the public

exchequer.

f. There is also no allegation of siphoning of any funds,

and on the contrary, the instant case is a case where a

huge sum of money in form of Foreign Direct

Investment has come into the Country as per the

prevailing policies of the Government of India.

g. As per normal procedure, the FDI proposal of INX

Media was processed by several officers in the FIPB

Unit. Thereafter, it was put up to the FIPB (comprising

of 6 Secretaries), which after due consideration, made

its recommendations to the Ministry of Finance. In the

Ministry, the case was once again examined by several

officers (from the Under Secretary all the way up to the

Additional Secretary) of the Department of Economic

Affairs (DEA). Thereafter, the case was put up to the

Secretary, DEA (who had previously considered and

recommended the case as Chairman of the FIPB) who

once again signed the file and put it up to the

competent authority (Finance Minister) on 28.05.2007.

The Petitioner approved the file on the same day.


44

h. Similarly, the downstream approval was processed,

examined and recommended by all the above officers

and put up to the competent authority (Finance

Minister) on 30.10.2008. The Petitioner approved the

file on the same day. From the above, it is evident no

single officer can take a decision on any proposal. It is

a collective decision of six Secretaries, assisted by

several officers in the FIPB Unit and the Department of

Economic Affairs respectively. Therefore, it is

preposterous to allege that any person, such as the

Petitioner or the Petitioner’s son, could have influenced

any official of the FIPB, including all 6 (Six) senior

Secretaries to the Government of India.

i. That none of the officers of the FIPB or of the

Department of Economic Affairs, Ministry of Finance

have stated that they were advised or directed or in any

way influenced by the Petitioner, in any manner

whatsoever, to grant the FIPB approval to INX Media.

j. Bail is the rule, jail is the exception. Arrest and custody

are a humiliation and social stigma. The prosecution

seems to think that prolonged judicial custody is a

punishment they can impose on the Petitioner. Courts


45

should frown upon the attempt of the prosecution to

use judicial custody as a kind of pre-trial punishment.

k. A fundamental principle of our criminal jurisprudence is

that every person is innocent until proved guilty and

bail is the rule and refusal is an exception.

(i) Gurbaksh Singh Sibbia & Ors. Vs. State of

Punjab, [(1980) 2 SCC 565 @ Para 27 (5

Judges)]

(ii) Siddharam Satlingappa Mhetre Vs. State of

Maharashtra [(2011) 1 SCC 694 @ Para 86]

l. The Petitioner is 74 years old. His health is frail. He has

been kept in a cell and given food that he is not

accustomed to. He has already lost 4 kgs. weight in the

period of judicial custody.

U) Because the Ld. Single Judge, again contrary to his own

observations in Para 47 vis-à-vis the three parameters for

consideration of bail, incorrectly considered that the instant

case, being an economic offence, constitutes a class apart.

It is submitted that the instant case is in fact not an economic

offence in so far as the Respondent is concerned in as much

as there is no loss to the public exchequer in this case. No

public funds were involved in this case and it also not a case

of bank fraud or taking money out of the country or defrauding


46

depositors or stealing money from a company. On the

contrary, Rs. 305 Crore has come into INX Media (i.e. the

investee company) as FDI, well within the approval

percentage of 46.216% of equity.

V) Because the findings of the Hon’ble High Court in the

impugned judgment are not only legally but also factually

wrong.

W) Because since the Ld. Single Judge has rendered firm

conclusive findings in respect of the applicability of Press No.

7 (1999 series) and various approvals granted by the FIPB,

and also given findings on official acts of various public

servants who were charged with the responsibility of applying

Press Note 7, it has become imperative for the Petitioner to

state that the Petitioner at no stage invited the Ld. Single

Judge to render any such findings. The submissions were

made only in the context of seeking to prima facie

demonstrate to the Ld. Single Judge the applicability of Press

Note 1, 4 and 7 and the steps taken by officials of the FIPB

and Ministry of Finance at various stages. Consequently, the

Petitioner is duty bound to demonstrate that the Ld. Single

Judge has erroneously interpreted the press notes and the

official acts of the public servants involved in the decision-

making process. The Petitioner is not inviting this Hon’ble

Court to render any findings on the merits. The Petitioner


47

merely attempted to demonstrate that the Petitioner had a

prima facie arguable case and it is only in the course of the

trial, if any that such findings can be rendered.

X) Because the findings rendered on the non-applicability of the

Press Note 7 in the instant case and that INX Media does not

come under category (a) and (b) companies mentioned in the

said press note are conclusive findings on merits and ought

not have been given while deciding the Petitioner’s bail

application. Without prejudice to the same, it is submitted that

the said findings are without any reasons and completely

untenable.

Y) Because the Ld. Single Judge failed to appreciate that INX

Media Ltd. was an Indian Company with Indian shareholders

and had invited FDI from foreign investors upto 46.216%.

Therefore, 53.784% was with Indian shareholders and it was

thus, a joint venture company.

Z) Because the finding by Ld. Single Judge that if INX Media

Ltd. was in category (a) or (b) of Press Note 7, there was no

occasion for the said company to seek approval of FIPB/GOI,

proceeds on a completely incorrect and erroneous reading of

Press Note 7. It is submitted that INX Media did seek

approval from the FIPB and was granted the same, for the

investment of FDI upto 46.216%. The question was not of the


48

initial approval upto 46.216% but for increase in the amount

of foreign equity without change in the percentage of equity,

for which Press Note 7 was applicable and which stated, that

no permission was required for the same. Press Note 7

(1999) series was thus cited by the Petitioner to show, prima

facie, that there is a valid explanation for the investment of

Rs. 305 crores which was within the approval percentage of

46.216% of the issued equity.

AA) Because the finding by the Ld. Single Judge in para 56-58

regarding the Reply dated 02.09.2008 written by Ms.

Sindhushree Khullar, Additional Secretary, Department of

Economic Affairs, Ministry of Finance, GOI, in response to

Letter dated 29.07.2008 of Member, CBDT & Ex- Officio

Additional Secretary, to Government of India, and holding the

said letter to be without jurisdiction and having no relevance

is factually wrong and contrary to the record of the case. It is

submitted that bare perusal of the Letter dated 29.7.2008

written by CBDT would reveal that the same was addressed

to Ms. Sindhushree Khullar in the Department of Economic

Affairs and that the same was put up by the FIPB and Joint

Secretary for her signatures. The Ld. Single Judge further

failed to appreciate that it was only the FIPB which could

have drafted the letter. Therefore, the said letter could not

have been without jurisdiction.


49

BB) Because the Ld. Single Judge failed to appreciate that the

FDI of Rs. 305 crores in INX Media Ltd. was reported to:

a. The Reserve Bank of India

b. The Department of Industrial Policy & Promotion

(DIPP)

c. Ministry of Information & Broadcasting

None of the above departments took objection that the

investment was in excess of the approved limit, since it was

well within the limit of 46.216%.

CC) Because the Ld. Single Judge failed to appreciate that the

initial approval of 46.216% was on basis of Application dated

13.3.2007 of INX Media Ltd. which sought permission in

terms of percentage and did not mention any amount and

that, the permission dated 31.5.2007 was also in terms of

percentage and nowhere refers to amount of investment. The

approval was given to INX Media for only the percentage of

equity i.e. 46.216% and not Rs. 4.62 crores, as wrongly

recorded in paragraph 62 of the impugned judgement.

Therefore, the findings in Para 60-62 are contrary to the

record.

DD) Because the finding in para 65 of the impugned judgement

that the Complaints were not sent to the Board and were only


50

marked to the Revenue Secretary, whose representative in

the meeting of the Board dissented to the downstream

proposal, is also incorrect and the Ld. Single Judge has

failed to appreciate:-

i. that Revenue Secretary himself is part of the FIPB

Board

ii. That, the minutes of the 128th meeting of FIPB dated

24.10.2008 shows that Revenue Secretary was

represented.

EE) Because the finding in para 66 of the impugned judgement

that Indrani Mukherjee and Peter Mukherjee (Accused) met

the Petitioner and that ‘illegal gratification’ was paid is denied

and disputed. Therefore, the Ld. Single Judge by rendering

this conclusive finding at the stage of bail itself has committed

a grave error in law.

FF) Because the finding in para 67 of the impugned judgment

that large sums of monies has come into the companies

owned and/ or controlled by co-conspirator- Karti P.

Chidambaram and large number pf emails have been

exchanged between representatives of INX MEDIA and

company controlled by Petitioner and his son are also denied

and disputed. Notwithstanding the fact that the Ld. Single

Judge by rendering these conclusive finding at the stage of


51

bail itself has committed a grave error in law, it is submitted

that Petitioner is neither a shareholder or Director in any of

the said companies. There is not even an iota of evidence

that the Petitioner has any relation with the said companies

or has received any money or illegal gratification.

GG) Because the Ld. Single Judge failed to appreciate that there

was not even an iota of evidence that any payment (other

than a payment of Rs. 10 lakhs) was made by INX

Media/News to any company or entity belonging to or

controlled by the Petitioner’s son. Even the payment of Rs.

10 lakhs is alleged to have been made to a company of which

the Petitioner’s son is neither a shareholder or a director.

HH) Because the Ld. Single Judge failed to appreciate that INX

Media sought approval for FDI in a proposed TV channel up

to 46.216 per cent of the issued equity capital. The policy

allowed investment up to 74 per cent of the equity. FIPB Unit

examined the proposal, found it to be in order and submitted

the case to the FIPB. FIPB consisted of 6 Secretaries to the

Government of India and was chaired by the Secretary,

Economic Affairs. FIPB unanimously recommended the

proposal and placed it before the Finance Minister for his

approval, along with several other proposals. The Finance


52

Minister (i.e. the Petitioner herein) granted the approval in the

normal course of official business.

II) BECAUSE the Ld. Single Judge failed to appreciate that on

21-1-2019, CBI is learned to have sought sanction to

prosecute the Petitioner. It can therefore be inferred that the

CBI had concluded its investigation, prepared the draft

charge sheet, and was ready to file the same in the trial court,

subject to sanction being granted.

JJ) BECAUSE the Ld. Single Judge failed to appreciate that

while seeking sanction for prosecution, it is necessary to

submit a draft charge-sheet to the sanctioning authority. It

has been so held in CBI Vs. Ashok Kumar Aggarwal, 2014

(14) SCC 295, para 16.1 which inter alia, reads:-

“The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material”

KK) BECAUSE the Ld. Single Judge failed to appreciate that

there was no prima facie case against the Petitioner under

the four offences mentioned in the FIR. This is explained in

the table below:

S. NO.

SECTION CBI


53

420, IPC ● Ingredients of Section are not

satisfied.

● No one has complained of being

cheated by or complained of being

induced to deliver any property to any

person.

120B, IPC ● Punishment for Part II is only 6

months and the said offence is

bailable.

● No officer of FIPB has said that the

Petitioner or his son or anyone else

spoke to them about the INX Media

case.

13(1)(d),

PC Act

● Section repealed and re-enacted

w.e.f. 26.07.2018. Hence, no

proceeding under repealed section

will survive.

efer: Kolhapur Canesugar Works Ltd.

v. Union of India, reported in (2000)

2 SCC 536 @ Para 37].


54

8, PC Act ● There is no allegation in the FIR that

the Petitioner accepted or agreed to

accept any gratification as a motive

or reward for inducing any public

servant. Hence, prima facie, the

accusation under Section 8 PC Act

does not apply to the Petitioner.

LL) BECAUSE the Ld. Single Judge failed to appreciate that by

Order dated 23-3-2018, a coordinate bench of the same High

Court had granted bail to the Petitioner’s son and made

several pertinent observations that, prima facie, rule out any

undue influence or inducement. No public official was named

as an accused in the FIR. No public official stated during

investigation that anyone had induced or influenced him. No

public official has been arrested in this case by the CBI. In

the circumstances, to deny bail to the Petitioner alone is

unjust and opposed to all notions of justice.

MM) BECAUSE the Ld. Single Judge failed to appreciate that only

three persons were arrested and all of them are on bail.

Name CBI


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Karti P. Chidambaram Granted regular bail by the Hon’ble

High Court vide Order dated

23.03.2018.

CBI’s appeal (being SLP (Crl.) No.

5449/2018) against the above Order

has been dismissed by this Hon’ble

Court on 03.08.2018.

S. Bhaskararaman Granted anticipatory bail vide Order

04.04.2018 by the Ld. Special Judge.

Indrani Mukherjea Granted statutory bail vide Order dated


Peter Mukherjea Granted statutory bail vide Order dated


NN) BECAUSE the Ld. Single Judge failed to take into account

the fact that Karti Chidambaram had been granted bail in the

CBI’s case by the High Court vide Order dated 23.03.2018

and the said Order has been confirmed by this Hon’ble Court

vide Order dated 03.08.2018. If Karti Chidambaram and the

other three persons have been granted bail, it is manifestly

unjust and illegal to deny bail to the Petitioner who has not

even been remotely associated with anything which has been

referred to by the Ld. Single Judge in the impugned order.


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OO) Because the Ld. Single Judge has failed to deal with the

Petitioner’s argument that his arrest was illegal.

PP) Because the Ld. Single Judge failed to appreciate that in

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC

565, this Hon’ble Court held that:

27. ….. An accused person who enjoys freedom is in a muchbetter position to look after his case and to properly defend himself 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.

Therefore, the Petitioner was entitled to grant of bail by the

High Court.

6. GROUNDS FOR INTERIM RELIEF:

a) Petitioner states that the Petitioner has set out all the relevant

facts in detail in the accompanying List of Dates and the

Petitioner craves leave of this Hon’ble Court to refer to and

rely upon the same as if incorporated herein verbatim for the

sake of brevity. The Petitioner submits that the Petitioner has

good case on merits and is likely to succeed before this

Hon’ble Court. The Petitioner states that the Petitioner has

made out a prima facie case on merits and the balance of

convenience is also in favour of the Petitioner. Therefore, it


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is desirable in the interest of justice that during the pendency

of the proceedings before this Hon’ble Court, the interim relief

as prayed for herein be granted or else the Petitioner shall

suffer irreparable loss.

b) That the Petitioner is law abiding citizen and has reputation

to sustain in the society. He is a sitting Member of Parliament

(Rajya Sabha). The antecedents of the Petitioner are

impeccable. There is no possibility of his fleeing from justice.

Custodial interrogation at the instance of the CBI is no more

permissible as the Petitioner has been interrogated for the

maximum period of 15 days in police custody and is now in

judicial custody.

c) That, the Petitioner has spent more than 40 days in custody

and the Hon’ble High Court has itself held that there is no

chance of the Petitioner tampering with evidence and that the

evidence in the case, which is documentary in nature is

already in custody of the Investigating Agency/ Government.

d) That, the Petitioner has deep roots in the society and the

Hon’ble High Court itself has held that the Petitioner is not a

flight risk.

7. MAIN PRAYERThe Petitioner therefore, prays that in the interest of justice

and equity, this Hon’ble Court be pleased to:-

A) Grant Special Leave to Appeal under Article 136 of the

Constitution of India against the impugned judgment and final


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order dated 30.09.2019 passed by the Hon’ble High Court of

Delhi at New Delhi in Bail Application No. 2270 of 2019;

B) Pass any other order and/or directions as this Hon’ble Court

may deem fit and proper.

8. PRAYER FOR INTERIM RELIEF:

During the pendency and final disposal of present Special

Leave Petition, Your Lordships will be pleased to:-

A) Grant Interim bail to the Petitioner in FIR bearing No. RC-

2202017-E-0011 dated 15.05.2017 under Sections 120-B

read with 420 of the Indian Penal Code, 1860 and Section 8

and Section 13(2) read with Section 13(1)(d) of the

Prevention of Corruption Act, 1988 registered by the Central

Bureau of Investigation;

B) Pass any other order and/or direction as this Hon’ble Court

may deem fit and proper.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, PETITIONER

AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY FILED BY:

(ARSHDEEP SINGH & (Ms. Pallavi Langar) AKSHAT GUPTA) Advocate for the Advocate

Petitioner

DRAWN ON: 30.09.2019 FILED ON: 03.10.2019 PLACE: NEW DELHI


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