Holding

In the absence of material evidence of flight risk or witness tampering, and considering the appellant’s surrender of passport, look‑out notice, age, health and the fact that co‑accused are on bail, the Supreme Court held that bail must be granted and the High Court’s merit‑based refusal was improper.

Summary

The Central Bureau of Investigation filed a case against former Finance Minister P. Chidambaram under Sections 120B, 420 IPC and Sections 8, 13(2), 13(1)(d) of the Prevention of Corruption Act for alleged irregularities in the FIPB clearance of INX Media. After his arrest, the Delhi High Court refused regular bail, citing a possible risk of influencing witnesses, despite finding no flight risk or evidence tampering. Chidambaram appealed to the Supreme Court, arguing that the High Court had improperly examined the merits of the case and lacked material to support the witness‑influence allegation. The Supreme Court held that the appellant was not a flight risk, his passport was surrendered, a look‑out notice was in place, he was elderly and ill, and co‑accused were already on bail; moreover, the prosecution offered no concrete evidence of witness tampering. Consequently, the Court set aside the High Court order, granted bail with conditions, and dismissed the CBI’s special leave petition.

Issues considered

The High Court erred in refusing bail on the ground of alleged witness influence without material evidence.
Whether the appellant constitutes a flight risk warranting denial of bail.
Whether there is a real risk of tampering with evidence or witnesses in this case.
What factors must be considered by courts when granting bail under Indian law.
Whether detailed examination of the merits of the case is required in bail orders.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 438
Indian Penal Code, 1860s. 120B, s. 420
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 8

Subjects

bailflight riskwitness tamperingPrevention of Corruption ActCBI investigationhigh courtSupreme Courtanticipatory baileconomic offencesprinciples of bail

Judgment

[2019] 13 S.C.R. 985 985

SHRI P. CHIDAMBARAM A
v.
CENTRAL BUREAU OF INVESTIGATION
(Criminal Appeal No. 1603 of 2019)
OCTOBER 22, 2019 B
[R. BANUMATHI, A. S. BOPANNA AND
HRISHIKESH ROY, JJ.]
Bail:
Grant or refusal of – Case registered by CBI against C
appellant–member of parliament and Senior member, u/s. 120B rw
s. 420 IPC, ss. 8, 13(2) rw s. 13(1)(d) of the Prevention of Corruption
Act, 1988 – Arrest of the appellant and since then appellant in
custody – Bail application – High Court declined regular bail to
appellant – On appeal, held: Appellant is not a “flight risk” and in
D
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 indication
in the remand applications filed by the prosecution – Charge sheet E
has been filed against the appellant and other co-accused –
Appellant is in custody for about two months whereas co-accused
were already granted bail – Appellant is said to be aged 74 years
and is also said to be suffering from age related health problems –
In view thereof, the appellant entitled to be granted bail.
F
Grant or refusal of – Factors to be considered – Stated.
Judgment/order: Order granting or refusing bail – Reasoned
order – Necessity of – Held: Recording of reasons is necessary
since the accused/prosecution/victim has every right to know the
reasons for grant or refusal to grant bail – It would help the G
appellate court to appreciate and consider the reasonings for grant
or refusal of bail – At the stage of granting bail, an elaborate
examination of evidence and detailed reasons touching upon the
merit of the case, should be avoided.

H
985
986 SUPREME COURT REPORTS [2019] 13 S.C.R.

A Allowing the Criminal Appeal No. 1603/19 and dismissing
Criminal Appeal No. 1605/19, the Court
HELD: 1.1 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
B mind to the matter 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
C 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
D examination of evidence and elaborate documentation of the
merits of the case should be avoided. [Para 17][997-G-H; 998-A-
B]
1.2 The jurisdiction to grant bail has to be exercised on the
basis of the well–settled principles having regard to the facts and
E circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:– 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; reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
F witnesses; reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence;
character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; larger interest
of the public or the State and similar other considerations. There
G 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. It
cannot be said that “flight risk” of economic offenders should be

H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 987
OF INVESTIGATION

looked at as a national phenomenon and be dealt with in that A
manner merely because certain other offenders have flown out
of the country. The same cannot 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,
B
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. [Para 22][999-F-
H; 1000-A-C]
Kalyan Chandra Sarkar v. Rajesh Ranjan and another
(2004) 7 SCC 528; Jayendra Saraswathi Swamigal v. C
State of Tamil Nadu (2005) 2 SCC 13 : [2005] 1 SCR
160; State of U.P. through CBI v. Amarmani Tripathi
(2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454 – referred
to.
2.1 In the instant case, in the impugned judgment, paras D
(51) to (70) relate to the findings on the merits of the prosecution
case. At the stage of considering the application for bail, detailed
examination of the merits of the prosecution case and the merits
or demerits of the materials relied upon by the prosecution, should
be avoided. It is therefore, made clear that the findings of the E
High Court in the said paras 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. [Para
18][998-D-E]
2.2 In the impugned judgment, the High Court mainly F
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. [Para 25][1001-H;
1002-A][1001-H; 1002-A]
2.3 Insofar as the “flight risk” and “tampering with G
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 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 H
988 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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. [Para 26][1002-B-C]
2.4 In the FIR registered on 15.05.2017, the High Court
B 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
C registration of FIR any attempt is shown to have been made to
flee. It is 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
D the country or his abscondence from the trial. It is accepted 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. [Para 27][1002-E-G]
2.5 So far as the allegation of possibility of influencing the
E witnesses, the High Court referred to the submissions of the
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
F be ruled out. [Para 28][1002-H; 1003-A-B]
2.6 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
G 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

H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 989
OF INVESTIGATION

filed by the CBI before the High Court, the averments were made A
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. No material particulars were produced before the High
B
Court as to when and how those two material witnesses were
approached. There are no details as 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. [Para 29][1003-E-H] C
2.7 Statement u/s. 164 CrPC of the witness ‘X’ is said to
have been recorded. The said witness allegedly approached or
the other witnesses in a case of the instant 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 D
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. [Para 30][1004-A-C]
2.8 The respondent-CBI has filed remand applications E
seeking remand of the appellant on various dates. 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 F
appellant has been influencing the witnesses by approaching the
witnesses. The conclusion of the 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. G
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

H
990 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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. [Para
31][1004-D-F]
2.9 The appellant is not a “flight risk” and in view of the
B 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
C has been filed against the appellant and other co-accused. The
appellant is in custody 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 said factors and the facts and
D circumstances of the case, the appellant is entitled to be granted
bail. [Para 32][1004-G-H; 1005-A]
Mahender Chawla and others v. Union of India and
others (2018) 15 SCALE 497; Niranjan Singh and
another v. Prabhakar Rajaram Kharote and others
E (1980) 2 SCC 559 : [1980] 3 SCR 15; Puran v.
Rambilas and another (2001) 6 SCC 338 : [2001] 3
SCR 432; Prahlad Singh Bhati v. NCT, Delhi and
another (2001) 4 SCC 280 : [2001] 2 SCR 684–
referred to.

F Case Law Reference
(2018) 15 SCALE 497 referred to Para 10
[1980] 3 SCR 15 referred to Para 15
(2004) 7 SCC 528 referred to Para 16
G [2001] 3 SCR 432 referred to Para 16
[2001] 2 SCR 684 referred to Para 22
[2005] 1 SCR 160 referred to Para 23
[2005] 3 Suppl. SCR 454 referred to Para 24
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 991
OF INVESTIGATION

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A
1603 of 2019.
From the Judgment and Order dated 30.09.2019 of the High Court
of Delhi at New Delhi in Bail Application No. 2270 of 2019.
With
B
Criminal Appeal No. 1605 of 2019.
Tushar Mehta, SG, K. M. Nataraj, ASG, Kapil Sibal, Dr. Abhishek
Manu Singhvi, Ms. Sonia Mathur, Sr. Advs., Arshdeep Singh Khurana,
Kunal Vajani, Amit Bhandari, Hitesh Rai, Akshat Gupta, Ayush Agarwal,
Karan Gogna, Aamir Khan, Aman Singh Brar, Akshay Sahni, Ms. Pallavi C
Langar Amit Mahajan, Rajat Nair, Kanu Agrawal, Shantnu Sharma,
Varun Chugh, Rajiv Ranjan, Bhuvan Kapoor, A. K. Sharma, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J. D
1. Leave granted.
2. 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 respondent-Central Bureau of E
Investigation (CBI) under 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.
3. This appeal relates to the alleged irregularities in Foreign
Investment Promotion Board (FIPB) clearance given to the INX Media F
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 G
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
H
992 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B foreign investment by the same Foreign Investors; (ii) generated 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.
4. Upon receipt of a complaint on the basis of a cheque for an
C 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
D 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
E 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.
5. 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
F 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
G
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
H was being controlled by him indirectly. It is alleged that the invoices
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 993
OF INVESTIGATION [R. BANUMATHI, J.]

approximately for an amount of Rs.3.50 crores were falsely got raised A
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. B
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 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 C
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 D
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.
6. Apprehending arrest, the appellant filed petition under Section E
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
F
anticipatory bail to the appellant, SLP(Crl.) No.7525 of 2019 was
preferred by the appellant before 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 G
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. H
994 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 7. 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
B
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 evidence”, the High Court held that the
C 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.
D
8. 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.
E
9. 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
F 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 could be given to the allegations given in a
sealed cover. It was further submitted that the learned Single Judge did
G 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
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 995
OF INVESTIGATION [R. BANUMATHI, J.]

the CBI only once though the CBI had taken appellant’s custody for A
number of days.
10. 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 B
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 C
witnesses as per the “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 D
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.
11. So far as the cross appeal filed by the CBI, the learned Senior E
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 F
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 addressed a press conference and then proceeded G
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
H
996 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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”.
12. Mr. Tushar Mehta, learned Solicitor General submitted that
B 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
C 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 and the vulnerability of the witness, the identity
and the statement of the said witness cannot be shared with the accused.
D 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
E 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.
13. The learned Solicitor General further submitted that the charge
F 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
G the investigation qua other companies are going on and if the appellant 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.
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 997
OF INVESTIGATION [R. BANUMATHI, J.]

14. We have carefully considered the contentions and perused A
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.
B
15. 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 C
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 serious prejudice to the appellant and his defence in the
impending trial and the impugned judgment passed by the High Court is D
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.
16. Refuting the said contentions, the learned Solicitor General E
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 F
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.
17. Expression of prima facie reasons for granting or refusing to G
grant bail is a requirement of law especially where such bail orders are
appealable so as to indicate application of mind to the matter 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 H
998 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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
B
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
C 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.”
18. In the present case, in the impugned judgment, paras (51) to
D (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 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
E 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.
19. The learned Senior counsel for the appellant has taken us
through the dates and events and submitted that in the Enforcement
F 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
G ensure that the appellant is not released on bail and continues to languish
in custody.
20. 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
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SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 999
OF INVESTIGATION [R. BANUMATHI, J.]

submitted that after the anticipatory bail was dismissed by the Supreme A
Court in Criminal Appeal No.1340 of 2019 on 5.09.2019, the appellant
has filed the petition to surrender in the 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
B
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 C
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.
D
21. 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 matter pertaining to
Enforcement Directorate is pending before the concerned court, we are E
not expressing any opinion on the merits of the rival contention; lest it
might prejudice the parties in the appropriate proceedings.
22. 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 F
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 G
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
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1000 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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. 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
B
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
C 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.
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another
D (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
E 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
F bail to consider 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.

G (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.)
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 1001
OF INVESTIGATION [R. BANUMATHI, J.]

Referring to the factors to be taken into consideration for grant of A
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 B
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 C
or the State and other similar factors which may be relevant in
the facts and circumstances of the case……”
24. 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:- D

“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 E
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 F
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 G
justice or tamper with the evidence, then bail will be
refused……..”.
25. 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
H
1002 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 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.
26. As discussed earlier, insofar as the “flight risk” and “tampering
with evidence” are concerned, the High Court held in favour of the
B 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 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
C 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.
27. The learned Solicitor General submitted that when the accused
is facing grave charges and when he entertains doubts of possibility of
D 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
E 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
F is shown to have been made to flee. On behalf of the appellant, it is
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
G
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.
28. So far as the allegation of possibility of influencing the witnesses,
the High Court referred to the arguments of the learned Solicitor General
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 1003
OF INVESTIGATION [R. BANUMATHI, J.]

which is said to have been a part of a “sealed cover” that two material A
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:- B
“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 C
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. D
Moreover, the investigation is at advance stage, therefore, this
Court is not inclined to grant bail.”
29. 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 E
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 F
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
G
particulars were produced before the High Court as to when and how
those two material witnesses were approached. There are no details as
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. H
1004 SUPREME COURT REPORTS [2019] 13 S.C.R.

A 30. 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
B
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
C witness so as to influence the witness not to depose against the appellant
or his son.
31. 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, 05.09.2019 and
D 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
E 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
F 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.
32. The appellant is not a “flight risk” and in view of the conditions
G 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
H
SHRI P. CHIDAMBARAM v. CENTRAL BUREAU 1005
OF INVESTIGATION [R. BANUMATHI, J.]

other co-accused on 18.10.2019. The appellant is in custody from A
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.
B
33. 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 C
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
Judge from time to time. The appellant shall make himself available for D
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 E
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.

F
Nidhi Jain Appeals disposed of.

G

H