Bail Application = 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. 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. 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 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 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.

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.

  1. 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 respondentCentral Bureau of Investigation (CBI) under Section 120B IPC read
    1
    with Section 420 IPC, Section 8 and Section 13(2) read with Section
    13(1)(d) of the Prevention of Corruption Act, 1988.
  2. 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
    2
    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.
  3. 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.
  4. 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
    3
    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
    4
    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.
  5. 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
    5
    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.
  6. 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
    6
    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.
  7. 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.
  8. 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
    7
    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.
  9. 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
    8
    “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.
  10. 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
    9
    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”.
  11. 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
    10
    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.
  12. 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
    11
    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.
  13. 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.
  14. 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
    12
    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.
  15. 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.
  16. 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
    13
    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.”
  17. 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
    14
    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.
  18. 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.
  19. 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
    15
    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.
  20. 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
    16
    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.
  21. 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
    17
    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.
  22. 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
    18
    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……”
  23. 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:-
    19
    “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……..”.
  24. 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.
  25. 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
    20
    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.
  26. 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
    21
    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.
  27. 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
    22
    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.”
  28. 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
    23
    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.
  29. 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.
  30. 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,
    24
    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.
  31. 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
    25
    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.
  32. 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
    26
    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
    27