Krishna Iyer in Narasimhulu’s case remarked that the subject of bail “Belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. ‘The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”
Thus, when bail is refused, a man is deprived of his personal liberty, which is of too precious a value under our constitutional system, recognized by articles 19, 21 and 22. It is a great trust exercisable not casually, but judicially with lively concern in the interest of the individual and community. After all, the personal liberty of an accused or convict, which is fundamental in nature can be lawfully eclipsed only by a procedure established by law as provided by Article 21.
Judicial discretion is never whimsical and always operates in well defined and foreseeable channels wherever it might appear to be conferred in unlimited terms by a statute. It is an appeal to the judicial conscience of the judge. The discretion must be exercised not in opposition to, but in accordance with the well-established principles of law.
With this background in mind, an attempt has been made to understand that whether the judiciary has adhered to these principles in the bail petitions of P. Chidambaram in the INX Media Case. The appeals were against the Delhi High Court Judgment in the case registered by CBI under section 120B IPC with section 420 IPC, Section 8 and 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. The case 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 the approved inflow of Rs.4.62 crores. In 2007, INX Media Pvt. Ltd. approached the Foreign Investment Promotion Board (FIPB) seeking approval for FDI up to 46.216 percent 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 a violation of the recommendation of FIPB. Alleging that the above acts of omission and commission prima facie disclose commission of offence, the CBI registered a case against P. Chidambaram under the aforementioned sections. At first, Chidambaram petitioned Delhi High Court for the pre-arrest bail but it was refused by it. The reasons given by the High Court while exercising its powers were faulty since the prosecuting agency was not able to provide evidence for the allegations made by them. The court said that it was conscious of the fact that the personal liberty of an individual is sacrosanct, but no one is above law. Pre- arrest bail is not meant for high profile economic offenders. ‘The gravity of offence committed by petitioner demands the denial of pre-arrest bail to him. The court said that the economic offences constitute a class apart and need to be visited with a different approach in matters of bail. Taking a cue from the Supreme Court decision in Y. S Jagmohan Reddy, while dealing with money laundering cases has reiterated that “Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threats to the financial health of the country.”
The court also places reliance upon the Apex Court decision of CBI v. Anil Sharma in which they said “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect. In a case like this effective interrogation of the accused is of tremendous advantage. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by the pre-arrest bail.
Dismissing the bail application, Justice Suresh Kumar Kait said that though Chidambaram does not pose a flight risk and also does not have the power to tamper evidence, he can influence the witnesses at this stage of the investigation as he is a senior member of the bar and an ex-Union minister. “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 a respectable member of the Bar Association of Supreme Court of India. He has long-standing in BAR as a Senior Advocate. He has deep roots in the Indian Society and maybe some connection abroad. But, the fact that he will not influence the witnesses directly or indirectly cannot be ruled out in view of the above facts. Moreover, the investigation is at the advance stage, therefore, this Court is not inclined to grant bail”, observed the judgment.
Even though the High Court’s decision regarding the pre-arrest bail is right but subsequent declining of the bail is injurious to the annals of legal jurisprudence. With this Chidambaram went to the SC for bail and to set aside the order of the Delhi High Court. In the light of the principles elucidated upon by Justice Iyer in Gudikanti judgment, let us consider the present case of CBI. At the outset, it is to point out that the High Court mainly focused on the nature of allegations and the merits of the case and refused to see the well-settled principles for grant of bail. As discussed earlier, insofar as the the “flight risk” and “tampering of evidence” is concerned, the High Court held in favor of the appellant but regarding the possibility of influencing the witnesses, the High Court referred to the arguments of the SG 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 HC observed the possibility of influencing the witnesses by the appellant. The apex court said that to date no allegation regarding the influence 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 the information about the appellant. It appears that only at the time of opposing the bail and in the counter affidavit filed by CBI before the HC, the averments were made. CBI has no direct evidence against the appellant regarding the allegation. No material particulars were produced before the High Court as to when and how those two material witnesses were approached. There are no details in the form of the approach of those witnesses. 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. 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 cooperating with the investigating agency. The appellant is not a flight risk since the appellant being the Member of Parliament and a senior member of Bar has strong roots in society and his passport having been surrendered and lookout notice issued against him, there is no likelihood of his fleeing away.
Even though he may have committed a serious offence, but deprivation of his personal liberty by giving frivolous reasons is reprehensible and now the same principles should be applied for granting bail to Chidambaram in the case of Enforcement Directorate
At the last one should be reminded of what Justice Cardozo said “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles”.