whether the Court could look into the documents while considering an application for bail had arisen for consideration in the very case between the parties herein in Criminal Appeal No.130/2019 wherein through the judgment dated 05.09.2019 while considering the matter relating to the order dated 20.08.2019 whereby the High Court had rejected the bail, this Court had held that it would be open for the Court to receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. Sealed cover While the learned Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned Judge ought not to have recorded finding based on the materials produced in a sealed cover. Further while deciding the same case of the appellant in Crl. Appeal No.1340 of 2019, after holding so, this Court had consciously refrained from opening the sealed cover and perusing the documents lest some observations are made thereon after perusal of the same, which would prejudice the accused pre-trial. In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(CRIMINAL APPEAL NO.1831/2019)
(Arising out of S.L.P.(Criminal) No.10493 of 2019 )
P. Chidambaram ….Appellant (s)
Versus
Directorate of Enforcement …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.

  1. The instant appeal has been filed by the appellant
    assailing the final order dated 15.11.2019 passed by the
    High Court of Delhi at New Delhi in Bail Application No.
    2718 of 2019 whereby the High Court declined to grant
    regular bail to the appellant.
  2. The genesis of the case in question lies in FIR No.
    RC2202017-E0011 dated 15.5.2017, registered by the CBI
    under section 120-B r/w 420 IPC and sections 8 and 13
    Page 1 of 36
    (2) r/w 13 (1) (d) of PC Act against some known and
    unknown suspects with allegations that M/s INX Media
    Private Limited (accused no. 1 in the FIR) sought approval
    of Foreign Investment Promotion Board (FIPB) for
    permission to issue by way of preferential allotment,
    certain equity and convertible, non-cumulative,
    redeemable preference shares for engaging in the business
    of creating, operating, managing and broadcasting of
    bouquet of television channels. The company had also
    sought approval to make a downstream financial
    investment to the extent of 26% of the issued and
    outstanding equity share capital of M/s INX News Private
    Limited (accused no. 2). The FIPB Board recommended the
    proposal of INX Media for consideration and approval of
    the Finance Minister. However, the Board did not approve
    the downstream investment by INX Media (P) Ltd. in INX
    News (P) Ltd. Further, in the press release dated
    30.5.2007 issued by the FIPB Unit indicating details of
    proposals approved in the FIPB meeting, quantum of
    FDI/NRI inflow against M/s INX media was shown as Rs.
    4.62 crores. Contrary to the approval of FIPB, M/s INX
    Page 2 of 36
    Media Pvt. Ltd. deliberately and in violation of conditions
    of approval, made a downstream investment to the extent
    of 26% capital of INX News and also generated more than
    Rs. 305 crores FDI in INX Media (P) Ltd. against the
    approved foreign inflow of Rs. 4.62 crores is the allegation.
    A complaint is stated to have been received by the
    investigation wing of the Income Tax department which
    sought clarifications from the FIPB Unit of Ministry of
    Finance. The FIPB Unit vide letter dated 26.5.2008,
    sought clarifications from M/s INX Media Limited. It was
    further alleged in the FIR that upon receipt of this letter,
    M/s INX Media in order to avoid punitive action entered
    into criminal conspiracy with Mr. Karti Chidambaram
    (accused no. 3 in the FIR who is the son of the appellant).
    Mr. Karti Chidambaram is alleged to have exercised his
    influence over the officials of FIPB unit which led to the
    said officials showing undue favour to M/s INX News (P)
    Ltd. Thereafter by deliberately concealing the investment
    received in INX Media (P) Ltd., M/s INX News (P) Ltd. again
    approached the FIPB Unit and sought permission for the
    downstream investment. This proposal was favourably
    Page 3 of 36
    considered by the officials of ministry of finance and
    approved by the then Finance Minister. It was also stated
    in the FIR that Mr. Karti Chidambaram, in lieu of services
    rendered to M/s INX Group, received consideration in the
    form of payments. Information disclosed that invoices for
    approximately Rs. 3.5 crores were got raised in favour of
    M/s INX Group in the name of companies in which Mr.
    Karti Chidambaram was having sustainable interests
    either directly or indirectly. The appellant herein, who was
    the then Union Finance Minister, was not however named
    in the said FIR.
  3. On the basis of the aforementioned FIR, the
    Respondent Directorate of Enforcement registered a case
    ECIR/07/HIU/2017 (hereinafter referred to as ECIR case)
    under section 3 of Prevention of Money Laundering Act,
    2002 (hereinafter PMLA), punishable under section 4 of
    the said Act against the accused mentioned in the FIR.
    The allegations in the said ECIR case were the same as
    those in the aforementioned FIR. The appellant was not
    named an accused in this case as well.
    Page 4 of 36
  4. On 23.7.2018, apprehending his arrest by the
    Respondent, the appellant filed an application before the
    High Court of Delhi seeking grant of anticipatory bail in
    the aforementioned ECIR case. The High Court extended
    interim protection to the appellant until 20.8.2019, when
    the appellant’s application seeking anticipatory bail was
    dismissed.
  5. The appellant then approached this court by filing
    Criminal Appeal No. 1340 of 2019 (arising out of SLP (Crl.)
    No. 7523 of 2019) wherein while dismissing the appeal of
    the appellant, the court concluded that in the instant
    case, grant of anticipatory bail to the appellant will
    hamper the investigation and that this is not a fit case for
    exercise of discretion to grant anticipatory bail. This court
    applied the following rationale for coming to the said
    conclusion: there are sufficient safeguards enshrined in
    the PMLA to ensure proper exercise of power of arrest;
    grant of anticipatory bail is not to be done as a matter of
    rule, especially in matters of economic offences which
    constitute a class apart. Regard must be had to the fact
    that grant of anticipatory bail at the stage of investigation
    Page 5 of 36
    may frustrate the investigating agency in interrogating the
    accused and in collecting useful information and also
    materials which might have been concealed.
  6. In the meanwhile, on 21.8.2019, the appellant was
    arrested in the CBI case (arising out of the
    above-mentioned FIR). Since then he has been in custody.
    In the ECIR case, he was arrested on 16.10.2019 on the
    grounds that payment of approx. Rs. 3 crores was made at
    the appellant’s instance to the companies controlled by his
    son on account of FIPB work done for INX Group. Further
    it was stated in the grounds of arrest that the investigation
    is not fruitful due to the appellant’s non-cooperation; the
    appellant has withheld relevant information which is
    within his exclusive knowledge and thus his custodial
    interrogation is necessary.
  7. After dismissal of his application seeking
    anticipatory bail by this court, the appellant moved an
    application dated 5.9.2019 praying to surrender before the
    Trial Court (Court of Special Judge (PC Act), CBI) in the
    ECIR case. This application was rejected on 13.9.2019 in
    view of the submission on behalf of the respondent
    Page 6 of 36
    Directorate that it was not willing to arrest the appellant
    at that particular stage since it was completing
    investigation pertaining to some aspect of the money
    laundering and only on this background investigation was
    completed, the interrogation of the appellant would be
    meaningful. Thereafter, on 11.10.2019, the Respondent
    Directorate moved an application u/s 267 CrPC seeking
    issuance of production warrant against the appellant for
    the purpose of arrest and remand. The allegations which
    were levelled against the appellant in this application are
    that in lieu of granting FIPB approval to INX Media Pvt.
    Ltd., he and his son received a sum of approx. Rs. 3 crores
    through companies controlled by the son of the
    Appellant/accused Karti P. Chidambaram. Though INX
    media in its application did not mention the total amount
    of FDI inflow which they intended to bring, the appellant
    without ascertaining their competency, granted approval.
    Further the appellant became fully aware about the
    violations made by INX Group when the matter was
    highlighted by the Income Tax Department and a
    complaint was also received by him regarding the
    Page 7 of 36
    investment by M/s INX Media into M/s INX News without
    due approval. Despite this knowledge, the appellant again
    approved the downstream proposal of INX Group treating
    it as a fresh approval. Further investigation has revealed
    that there were at least 17 overseas bank accounts opened
    by the appellant and co-conspirators. In this regard,
    summons was issued to 11 persons and statements of
    some of these persons revealed that the overseas assets
    were acquired in the name of various shell companies on
    the instructions of appellant’s son. Thus, it was stated
    that a need arises to confront the appellant with the
    material gathered. This application was allowed by the
    Trial Court vide order dated 11.10.2019. Thereafter on
    14.10.2019, the Respondent inter alia moved an
    application seeking permission to arrest the appellant. The
    Trial Court treated this application as an application for
    interrogation of the appellant and allowed it.
    Subsequently, on 16.10.2019, the appellant was arrested
    for the grounds stated supra. Vide order dated
    17.10.2019, the Trial Court remanded the appellant to the
    custody of the Respondent for a period of 7 days.
    Page 8 of 36
  8. After his arrest, on 23.10.2019, the appellant
    moved a regular bail application (Bail Application No.
    2718 of 2019) before the High Court u/s 439 of CrPC
    averring that he is a law abiding citizen having deep roots
    in the society; he is not a flight risk and is willing to abide
    by all conditions as may be imposed by the court while
    granting bail. It was also submitted that the instant case
    is a documentary case and being a respectable citizen and
    former Union Minister, he cannot and will not tamper with
    the documentary record of the instant case which is
    currently in the safe and secure possession of the
    incumbent government or the Trial Court. On merits, it
    was stated by the Appellant that he merely accorded
    approval to the unanimous recommendation made by the
    FIPB which was chaired by the Secretary, Economic
    Affairs and included 5 other secretaries who were all
    among the senior most IAS officers (one among them was
    a senior IFS officer) and had a long and distinguished
    record of service. Anyone familiar with the working of the
    FIPB would know that no single officer can take a decision
    on any proposal. Therefore, it is preposterous to allege
    Page 9 of 36
    that any person could have influenced any official of FIPB,
    including all 6 senior secretaries to the Government of
    India. Moreover, the ECIR case is a verbatim copy of the
    FIR dated 15.5.2017 and allegations registered therein
    and thus the Special Judge erred in granting remand of
    the appellant in the ECIR case since the offences allegedly
    committed in both the cases arise out of the same
    occurrence and have been committed in the course of the
    same transaction. Further the Special Court committed an
    error in not accepting the surrender application of the
    appellant which was an application limited to
    surrendering before the Trial Court. The Special Court
    proceeded on an erroneous basis that the desire of an
    accused is contingent upon the desire of the investigating
    agency to arrest the accused and that arrest is a condition
    precedent for surrendering before the Court.
  9. Vide the impugned order, the High Court observed
    that it has not even been alleged by the Respondent
    Enforcement Directorate in its counter affidavit that the
    appellant is a flight risk. Regarding tampering of evidence
    also the court observed that it is neither argued nor any
    Page 10 of 36
    material is available on record in this regard. Moreover,
    there is no chance to tamper the material on record as the
    same is with the investigating agencies, central
    government or courts. Regarding influencing of witnesses,
    the court noted that three witnesses have stated in their
    statements that the appellant and his family members
    have pressurised them and asked them not to appear
    before the Enforcement Directorate. However, since their
    statements have already been recorded, at this stage when
    the complaint is almost ready to be filed, the Court held
    that there is no chance to influence any witness. The High
    Court also took notice of the fact that co-accused have
    been granted bail. The Court was cognizant of the fact that
    the appellant has been suffering from illness but the Court
    opined that the Court has already issued directions to the
    Jail Superintendent in this regard and therefore this
    ground is no longer available to the appellant at this stage.
    The Court noted that during investigation, it has been
    revealed that there has been layering of proceeds of crime
    by use of shell companies, most of which are only on
    paper, and opined that there is cogent evidence collected
    Page 11 of 36
    so far that these shell companies are incorporated by
    persons who can be shown to be close and connected with
    the appellant. Next, the Court held that the material in the
    present case is completely distinct, different and
    independent from the material which was collected by the
    CBI in the predicate offence. Even the witnesses in the
    PMLA investigation are different from the investigation
    conducted by the CBI. The High Court concluded that
    prima facie, allegations are serious in nature and the
    appellant has played key and active role in the present
    case. On the basis of all these observations, the High
    Court dismissed the bail application.
  10. It is the contention of the learned senior counsel
    Shri Kapil Sibal and Dr. Abhishek Manu Singhvi on behalf
    of the appellant before us that the High Court ought to
    have granted regular bail to the appellant after holding the
    triple test of flight risk, tampering with evidence and
    influencing of witnesses in favour of the appellant. The
    Impugned Order deserves to be set aside only on the
    ground that the allegations of a completely unrelated case
    (Rohit Tandon vs. Directorate of Enforcement (2018)
    Page 12 of 36
    11 SCC 46) have been considered by the High Court as
    allegations relating to the instant case and findings on
    merits against the appellant have been rendered based on
    such unrelated allegations. Next, it has been contended by
    the appellant that the High Court erred in law in going
    into and rendering findings on merits of the case in order
    to deny bail to the appellant despite the settled position of
    law that merits of a case ought not to be gone into at the
    time of adjudication of a bail application. This Court in the
    appellant’s own case seeking regular bail in the case
    registered by CBI against him titled P. Chidambaram vs.
    CBI (Crl. Appeal No. 1603/2019) has held that “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.” It has also been contended on behalf of the
    appellant that the High Court erred in accepting at face
    value the allegations made on merits of the case in the
    counter affidavit filed by the respondent and converting
    such allegations verbatim into findings by the Court and
    declining to grant bail to the appellant solely on the basis
    Page 13 of 36
    of said findings. On merits, the appellant has submitted
    that he is neither a shareholder nor director of any
    allegedly connected company nor does he have any
    connection with any of these companies. No material
    linking the appellant directly or indirectly with the alleged
    offence of money laundering has either been put to the
    appellant so far or been placed on record before the High
    Court. Further, the 12 officers who signed the file
    pertaining to the approval of the FDI proposal of INX
    Media were not even arrested. Only the appellant, who
    was the 13th signatory has been arrested and denied bail.
    Moreover, all the other co-accused in the instant ECIR
    case have also been granted bail or have not been
    arrested. The High Court also failed to appreciate that the
    appellant has already been granted regular bail by this
    Court in the predicate offence FIR vide its order dated
    22.10.2019. The High Court erred in denying bail to the
    appellant on the specious ground that allegations are of a
    serious nature. It is the submission of the learned senior
    counsel for the appellant that the gravity of an offence is
    to be determined from the severity of the prescribed
    Page 14 of 36
    punishment. In the instant case, the alleged offence of
    money laundering is punishable by imprisonment for a
    term which shall not exceed 7 years. Thus, the offence is
    not ‘grave’ or ‘serious’ in terms of the judgment of this
    Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40. The
    High Court should also have considered that the appellant
    is a 74 year old person whose health is fragile and while
    being lodged in judicial custody of the Respondent
    Enforcement Directorate between 16.10.2019 and
    30.10.2019 and thereafter being lodged in judicial custody
    between 30.10.2019 till date, the appellant has suffered
    multiple bouts of chronic and persistent pain in his
    abdomen, for which he was taken to AIIMS and Dr. Ram
    Manohar Lohia Hospital on various occasions (viz. On
    23.10.2019, 26.10.2019, 28.10.2019, 30.10.2019 and
    1.11.2019) for consultation, diagnosis and tests. The
    appellant’s health continues to deteriorate and with the
    onset of the cold weather, the appellant will become more
    vulnerable.
  11. Between 05.09.2019 and 16.10.2019 though the
    appellant was available in custody the respondent did not
    Page 15 of 36
    choose to interrogate but remand period was sought on
    17.10.2019 and 24.10.2019, while the third remand
    sought was rejected and accordingly the remand period
    expired on 30.10.2019. No witness was confronted
    despite seeking remand for that purpose. It is contended
    that the very manner in which the whole process is being
    conducted is only to see that the appellant remains in
    custody. It is contended that the liberty of the appellant
    cannot be denied in such manner by adopting an unfair
    procedure. Though much is sought to be made out as if
    the offence committed is grave there is absolutely no
    material to indicate that the appellant is involved and even
    otherwise it is a matter of trial wherein the charge is to be
    established. The gravity can only beget the length of
    sentence provided in law and by asserting that the offence
    is grave, the grant of bail cannot be thwarted. The
    respondent cannot contend as if the appellant should
    remain in custody till the trial is over.
  12. Shri Tushar Mehta, learned Solicitor General while
    seeking to oppose the petition has made reference to the
    counter affidavit filed on behalf of the respondent. It is
    Page 16 of 36
    contended that though the High Court has held that there
    is no possibility of tampering the evidence and has not
    influenced any witnesses and has ultimately denied the
    bail, such conclusion is not justified. It is contended that
    the appellant having held a very high position and also
    due to his status is likely to influence the witnesses and
    one of the witness had already indicated that he hails from
    the same State to which the appellant belongs and is not
    in a position to appear for the purpose of being
    confronted. Hence even in that regard it should be held
    against the appellant. It is further contended that even
    otherwise despite holding the triple test in favour of the
    appellant the gravity of the offence can be considered as a
    stand-alone aspect as the gravity of the offence in a
    particular case is also important while considering bail. In
    that circumstance, the three aspects to be taken note is
    the manner in which the offence has taken place, gravity
    of the offence and also the contemporaneous documents
    to show that the accused either in custody or otherwise,
    wields influence over the witnesses. Hence, he contends
    that the finding of the High Court insofar as saying that
    Page 17 of 36
    the appellant has not tampered is factually incorrect. The
    learned Solicitor General further contends that the
    economic offences are graver offences which affect the
    society and the community suffers. The common man
    loses confidence in the establishment. It is contended that
    the Investigating Agency has collected documentary
    evidence such as emails exchanged between the
    co-conspirators on behalf of the appellant and documents
    to indicate investment of laundered money in benami
    properties whose beneficial owners can be traced to the
    appellant and his family members. The respondent has
    also recorded the statement of material witnesses who are
    the part of process of money laundering. It is his
    contention that the appellant has knowledge of all these
    aspects and the material will show the share holding
    pattern of the 16 companies. It is further contended that
    the learned Judge of the High Court has referred to the
    documents produced in a sealed cover and in that light
    has arrived at the conclusion to deny bail. The High Court
    has, however, not properly considered while recording that
    a complaint is ready to be filed and therefore, he would
    Page 18 of 36
    not influence the witnesses. Even if the complaint/charge
    sheet is filed in 60 days it is only to avoid default and the
    investigation which is not complete would continue. In
    that light it is contended that when economic offences are
    premeditated it would require detailed investigation to
    unearth material and, in such circumstances, if bail is
    granted it would defeat the case of the prosecution. The
    learned Solicitor General has also referred to the decisions
    which would be taken note at the appropriate stage.
  13. The learned senior counsel for the appellant in
    reply to the submissions contended that not a single
    document is available to indicate that the appellant is
    involved in the offence. The allegation of the appellant
    tampering the evidence or influencing the witnesses as
    sought to be made out on behalf of the respondent cannot
    be accepted for the reason that the alleged offence is of the
    year 2007-08 and though the proceedings were initiated in
    the year 2017, the appellant was arrested only in the year
  14. In such event when the appellant has not
    influenced any person while he was at large, the allegation
    of tempering while in custody is not acceptable. The
    Page 19 of 36
    statement of the alleged witnesses is stated to have been
    recorded in the year 2018 and the case of the respondent
    that they are seeking to confront the witnesses is being
    put forth at this stage only to indicate as if the custody of
    the appellant is still required by them. When there is no
    document to indicate that the appellant is involved, the
    mere allegation against the alleged co-conspirators cannot
    be the basis to indicate that an economic offence has been
    committed by the appellant. In that light it is contended
    that the prayer made in the petition be accepted.
  15. Though we have heard the matter elaborately and
    also have narrated the contention of both sides in great
    detail including those which were urged on the merits of
    the matter we are conscious of the fact that in the instant
    appeal the consideration is limited to the aspect of regular
    bail sought by the appellant under Section 439 of Cr.PC.
    While stating so, in order to put the matter in perspective
    it would be appropriate to take note of the observation
    made by us in the case of this very appellant vs. CBI, in
    Criminal Appeal No. 1603/2019 which reads as
    hereunder;
    Page 20 of 36
    “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 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 of the court has to be exercised judiciously
    and not in an arbitrary manner.”
  16. In the above background, perusal of the order
    dated 15.11.2019 impugned herein indicates that the
    learned Single Judge having taken note of the rival
    contentions in so far as the triple test or the tripod test to
    be applied while considering an application for grant of
    regular bail under Sec. 439 Cr.PC, has answered the same
    in paragraphs 50 to 53 of the order, in favour of the
    appellant herein. The learned Solicitor General has
    however sought to contend that though there is not much
    grievance with regard to the conclusion on ‘flight risk’, the
    finding on likelihood of tampering and influencing witness
    Page 21 of 36
    has not been considered in its correct perspective. The
    finding in that regard has not been assailed and in such
    event, the appellant in our opinion cannot be taken by
    surprise. Even otherwise as rightly observed by the
    learned Single Judge the evidence and material stated to
    have been collected is already available with the
    Investigating agency. Learned Solicitor General would
    however contend that still further materials are to be
    collected and letter rogatory has been issued and as such
    tampering cannot be ruled out. In the present situation
    the appellant is not in political power nor is he holding
    any post in the Government of the day so as to be in a
    position to interfere. In that view such allegation cannot
    be accepted on its face value. With regard to the witness
    having written that he is not prepared to be confronted as
    he is from the same state, the appellant cannot be held
    responsible for the same when there is no material to
    indicate that the appellant or anyone on his behalf had
    restrained or threatened the concerned witness who
    refused to be confronted with the appellant in custody.
    Page 22 of 36
  17. The only other aspect therefore for consideration is
    as to whether the further consideration made by the
    learned Judge of the High Court, despite holding the triple
    test in appellant’s favour was justified and if consideration
    is permissible, whether the learned Judge was justified in
    his conclusion.
  18. While opposing the contention put forth by the
    learned Senior Counsel for the appellant that the learned
    Judge of the High Court ought not to have travelled
    beyond the consideration on the triple test and holding it
    in favour of the appellant, the learned Solicitor General
    would contend that the gravity of the offence and the role
    played by the accused should also be a part of
    consideration in the matter of bail. It is contended by the
    learned Solicitor General that the economic offences is a
    class apart and the gravity is an extremely relevant factor
    while considering bail. In order to contend that this
    aspect has been judicially recognised, the decisions in the
    case of State of Bihar & Anr. vs. Amit Kumar, (2017)
    13 SCC 751; Nimmagadda Prasad vs. CBI, (2013) 7 SCC
    466; CBI vs. Ramendu Chattopadhyay, Crl
    Page 23 of 36
    Appeal.No.1711 of 2019; Seniors Fraud Investigation
    Office vs. Nittin Johari & Anr.; (2019) 9 SCC 165; Y.S.
    Jagan Mohan Reddy vs. CBI, (2013) 7 SCC 439; State
    of Gujarat vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC
    364 are relied upon. Perusal of the cited decisions would
    indicate that this Court has held that economic offences
    are also of grave nature, being a class apart which arises
    out of deep-rooted conspiracies and effect on the
    community as a whole is also to be kept in view, while
    consideration for bail is made.
  19. On the consideration as made in the above noted
    cases and the enunciation in that regard having been
    noted, the decisions relied upon by the learned senior
    counsel for the appellant and the principles laid down for
    consideration of application for bail will require our
    consideration. The learned senior counsel for the
    appellant has relied upon the decision of the Constitution
    Bench of this Court in the case of Shri Gurbaksh Singh
    Sibbia vs. State of Punjab, (1980) 2 SCC 565 with
    reference to paragraph 27 which reads as hereunder:
    “ It is not necessary to refer to decisions which
    deal with the right to ordinary bail because that
    Page 24 of 36
    right does not furnish an exact parallel to the right
    to anticipatory bail. It is, however, interesting that
    as long back as in 1924 it was held by the High
    Court of Calcutta
    in Nagendra v. King-Emperor [AIR 1924 Cal 476,
    479, 480 : 25 Cri LJ 732] that the object of bail is
    to secure the attendance of the accused at the
    trial, that the proper test to be applied in the
    solution of the question whether bail should be
    granted or refused is whether it is probable that
    the party will appear to take his trial and that it is
    indisputable that bail is not to be withheld as a
    punishment. In two other cases which,
    significantly, are the ‘Meerut Conspiracy cases’
    observations are to be found regarding the right
    to bail which deserve a special mention. In K.N.
    Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ
    94] it was observed, while dealing with Section
    498 which corresponds to the present Section 439
    of the Code, that it conferred upon the Sessions
    Judge or the High Court wide powers to grant bail
    which were not handicapped by the restrictions in
    the preceding Section 497 which corresponds to
    the present Section 437. It was observed by the
    court that there was no hard and fast rule and no
    inflexible principle governing the exercise of the
    discretion conferred by Section 498 and that the
    only principle which was established was that the
    discretion should be exercised judiciously.
    In Emperor v. Hutchinson [AIR 1931 All 356, 358 :
    32 Cri LJ 1271] it was said that it was very unwise
    to make an attempt to lay down any particular
    rules which will bind the High Court, having
    regard to the fact that the legislature itself left the
    discretion of the court unfettered. According to
    the High Court, the variety of cases that may
    arise from time to time cannot be safely classified
    and it is dangerous to make an attempt to classify
    the cases and to say that in particular classes a
    bail may be granted but not in other classes. It
    was observed that the principle to be deduced
    from the various sections in the Criminal
    Procedure Code was that grant of bail is the rule
    and refusal is the exception. An accused person
    who enjoys freedom is in a much better 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
    Page 25 of 36
    after his own case. A presumably innocent person
    must have his freedom to enable him to establish
    his innocence.”
    We have taken note of the said decision since even though
    the consideration therein was made in the situation where
    an application for anticipatory bail under Section 438 was
    considered, the entire conspectus of the matter relating to
    bail has been noted by the Constitution Bench.
  20. The learned senior counsel for the appellant has
    also placed reliance on the decision on the decision in the
    case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 with
    specific reference to paragraph 39 which reads as
    hereunder:
    “ Coming back to the facts of the present case,
    both the courts 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; 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
    Page 26 of 36
    charge and the severity of the punishment should
    be taken into consideration.”
    The said case was a case of financial irregularities and in
    the said circumstance this Court in addition to taking note
    of the deep-rooted planning in causing huge financial loss,
    the scope of consideration relating to bail has been taken
    into consideration in the background of the term of
    sentence being seven years if convicted and in that regard
    it has been held that in determining the grant or otherwise
    of bail, the seriousness of the charge and severity of the
    punishment should be taken into consideration.
  21. Thus from cumulative perusal of the judgments
    cited on either side including the one rendered by the
    Constitution Bench of this Court, it could be deduced
    that the basic jurisprudence relating to bail remains the
    same inasmuch as the grant of bail is the rule and refusal
    is the exception so as to ensure that the accused has the
    opportunity of securing fair trial. However, while
    considering the same the gravity of the offence is an
    aspect which is required to be kept in view by the Court.
    The gravity for the said purpose will have to be gathered
    Page 27 of 36
    from the facts and circumstances arising in each case.
    Keeping in view the consequences that would befall on the
    society in cases of financial irregularities, it has been held
    that even economic offences would fall under the category
    of “grave offence” and in such circumstance while
    considering the application for bail in such matters, the
    Court will have to deal with the same, being sensitive to
    the nature of allegation made against the accused. One of
    the circumstances to consider the gravity of the offence is
    also the term of sentence that is prescribed for the offence
    the accused is alleged to have committed. Such
    consideration with regard to the gravity of offence is a
    factor which is in addition to the triple test or the tripod
    test that would be normally applied. In that regard what
    is also to be kept in perspective is that even if the
    allegation is one of grave economic offence, it is not a rule
    that bail should be denied in every case since there is no
    such bar created in the relevant enactment passed by the
    legislature nor does the bail jurisprudence provides so.
    Therefore, the underlining conclusion is that irrespective
    of the nature and gravity of charge, the precedent of
    Page 28 of 36
    another case alone will not be the basis for either grant or
    refusal of bail though it may have a bearing on principle.
    But ultimately the consideration will have to be on case to
    case basis on the facts involved therein and securing the
    presence of the accused to stand trial.
  22. In the above circumstance it would be clear that
    even after concluding the triple test in favour of the
    appellant the learned Judge of the High Court was
    certainly justified in adverting to the issue relating to the
    gravity of the offence. However, we disapprove the manner
    in which the conclusions are recorded in paragraphs 57 to
    62 wherein the observations are reflected to be in the
    nature of finding relating to the alleged offence. The
    learned senior counsel for the appellant with specific
    reference to certain observations contained in the above
    noted paragraphs has pointed out that the very
    contentions to that effect as contained in paragraphs 17,
    20 and 24 of the counter affidavit has been incorporated
    as if, it is the findings of the Court. The learned Solicitor
    General while seeking to controvert such contention would
    however contend that in addition to the counter affidavit
    Page 29 of 36
    the respondent had also furnished the documents in a
    sealed cover which was taken note by the learned Judge
    and conclusion has been reached.
  23. The question as to whether the Court could look
    into the documents while considering an application for
    bail had arisen for consideration in the very case between
    the parties herein in Criminal Appeal No.130/2019
    wherein through the judgment dated 05.09.2019 while
    considering the matter relating to the order dated
    20.08.2019 whereby the High Court had rejected the bail,
    this Court had held that it would be open for the Court to
    receive the materials/documents collected during the
    investigation and peruse the same to satisfy its conscience
    that the investigation is proceeding in the right lines and
    for the purpose of consideration of grant of
    bail/anticipatory bail etc. At the same time, this Court,
    had disapproved the manner in which the learned Judge
    of the High Court in the said case had verbatim quoted a
    note produced by the respondent. If that be the position,
    in the instant case, the learned Judge while adverting to
    the materials, ought not have recorded a finding based on
    Page 30 of 36
    the materials produced before him. While the learned
    Judge was empowered to look at the materials produced in
    a sealed cover to satisfy his judicial conscience, the
    learned Judge ought not to have recorded finding based on
    the materials produced in a sealed cover. Further while
    deciding the same case of the appellant in Crl. Appeal
    No.1340 of 2019, after holding so, this Court had
    consciously refrained from opening the sealed cover and
    perusing the documents lest some observations are made
    thereon after perusal of the same, which would prejudice
    the accused pre-trial. In that circumstance though it is
    held that it would be open for the Court to peruse the
    documents, it would be against the concept of fair trial if
    in every case the prosecution presents documents in
    sealed cover and the findings on the same are recorded as
    if the offence is committed and the same is treated as
    having a bearing for denial or grant of bail.
  24. Having said so, in present circumstance we were
    not very much inclined to open the sealed cover although
    the materials in sealed cover was received from the
    respondent. However, since the learned Single Judge of
    Page 31 of 36
    the High Court had perused the documents in sealed
    cover and arrived at certain conclusion and since that
    order is under challenge, it had become imperative for us
    to also open the sealed cover and peruse the contents so
    as to satisfy ourselves to that extent. On perusal we have
    taken note that the statements of persons concerned have
    been recorded and the details collected have been collated.
    The recording of statements and the collation of material
    is in the nature of allegation against one of the co-accused
    Karti Chidambaram- son of appellant of opening shell
    companies and also purchasing benami properties in the
    name of relatives at various places in different countries.
    Except for recording the same, we do not wish to advert to
    the documents any further since ultimately, these are
    allegations which would have to be established in the trial
    wherein the accused/co-accused would have the
    opportunity of putting forth their case, if any, and an
    ultimate conclusion would be reached. Hence in our
    opinion, the finding recorded by the learned Judge of the
    High Court based on the material in sealed cover is not
    justified.
    Page 32 of 36
  25. Therefore, at this stage while considering the bail
    application of the appellant herein what is to be taken
    note is that, at a stage when the appellant was before this
    Court in an application seeking for interim
    protection/anticipatory bail, this Court while considering
    the matter in Criminal Appeal No.1340/2019 had in that
    regard held that in a matter of present nature wherein
    grave economic offence is alleged, custodial interrogation
    as contended would be necessary and in that
    circumstance the anticipatory bail was rejected.
    Subsequently the appellant has been taken into custody
    and has been interrogated and for the said purpose the
    appellant was available in custody in this case from
    16.10.2019 onwards. It is, however, contended on behalf
    of the respondent that the witnesses will have to be
    confronted and as such custody is required for that
    purpose. As noted, the appellant has not been named as
    one of the accused in the ECIR but the allegation while
    being made against the co-accused it is indicated the
    appellant who was the Finance Minister at that point, has
    aided the illegal transactions since one of the co-accused
    Page 33 of 36
    is the son of the appellant. In this context even if the
    statements on record and materials gathered are taken
    note, the complicity of the appellant will have to be
    established in the trial and if convicted, the appellant will
    undergo sentence. For the present, as taken note the
    anticipatory bail had been declined earlier and the
    appellant was available for custodial interrogation for
    more than 45 days. In addition to the custodial
    interrogation if further investigation is to be made, the
    appellant would be bound to participate in such
    investigation as is required by the respondent. Further it
    is noticed that one of the co-accused has been granted bail
    by the High Court while the other co-accused is enjoying
    interim protection from arrest. The appellant is aged
    about 74 years and as noted by the High Court itself in its
    order, the appellant has already suffered two bouts of
    illness during incarceration and was put on antibiotics
    and has been advised to take steroids of maximum
    strength. In that circumstance, the availability of the
    appellant for further investigation, interrogation and
    facing trial is not jeopardized and he is already held to be
    Page 34 of 36
    not a ‘flight risk’ and there is no possibility of tampering
    the evidence or influencing\intimidating the witnesses.
    Taking these and all other facts and circumstances
    including the duration of custody into consideration the
    appellant in our considered view is entitled to be granted
    bail. It is made clear that the observations contained
    touching upon the merits either in the order of the High
    Court or in this order shall not be construed as an opinion
    expressed on merits and all contentions are left open to be
    considered during the course of trial.
  26. For the reasons stated above, we pass the
    following order:
    i) The instant appeal is allowed and the judgment
    dated 15.11.2019 passed by the High Court of Delhi in
    Bail Application No.2718 of 2019 impugned herein is set
    aside;
    ii) The appellant is ordered to be released on bail if he
    is not required in any other case, subject to executing bail
    bonds for a sum of Rs.2 lakhs with two sureties of the like
    sum produced to the satisfaction of the learned Special
    Judge;
    iii) The passport ordered to be deposited by this Court
    in the CBI case shall remain in deposit and the appellant
    Page 35 of 36
    shall not leave the country without specific orders to be
    passed by the learned Special Judge.
    iv) The appellant shall make himself available for
    interrogation in the course of further investigation as and
    when required by the respondent.
    v) The appellant shall not tamper with the evidence or
    attempt to intimidate or influence the witnesses;
    vi) The appellant shall not give any press interviews nor
    make any public comment in connection with this case
    qua him or other co-accused.
    vii) There shall be no order as to costs.
    ….…………………….….J.
    (R. BANUMATHI)
    ..….……………………….J.
    (A.S. BOPANNA)
    …..……………………….J.
    (HRISHIKESH ROY)
    New Delhi,
    December 04, 2019
    Page 36 of 36
    REPORTABLE
    IN THE SUPREME COURT OF INDIA
    CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.1831/2019
    (Arising out of S.L.P.(Criminal) No.10493 of 2019 )
    P. Chidambaram ….Appellant (s)
    Versus
    Directorate of Enforcement …. Respondent(s)
    O R D E R
    After pronouncement of the Judgment in the above
    mentioned matter, Mr. Tushar Mehta, learned Solicitor
    General appearing for the respondent-Directorate of
    Enforcement, has submitted that the findings in the
    Judgment may not have a bearing qua the other accused.
    Considering the above submission, we make it
    clear that the findings in the Judgment, as above,
    shall not have any bearing qua the other accused in
    the case and the same shall be considered
    independently on its own merits.
    ….…………………….….J.
    (R. BANUMATHI)
    ..….……………………….J.
    (A.S. BOPANNA)
    …..……………………….J.
    (HRISHIKESH ROY)
    New Delhi,
    December 04, 2019