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TMI Blog2019 (12) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant. 3. 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 (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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 6. 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 may frustrate the investigating agency in interrogating the accused and in collecting useful information and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 9. 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 conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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; "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 accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances 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 another case alone wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 imper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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