P. CHIDAMBARAM v. DIRECTORATE OF ENFORCEMENT

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. In the circumstance, it would be clear that even after concluding the triple test in favour of the appellant, the Judge of the High Court was certainly justified in adverting to the issue relating to the gravity of the offence. However, the manner in which the conclusions are recorded in paragraphs 57 to 62 are disapproved wherein the observations are reflected to be in the nature of finding relating to the alleged offence. [Paras 21, 22][468-E-H; 469-A-D] Shri Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 : [1980] 3 SCR 383 – followed. State of Bihar & Anr. v. Amit Kumar (2017) 13 SCC 751 : [2017] 4 SCR 503; Nimmagadda Prasad v. CBI (2013) 7 SCC 466; CBI v. Ramendu Chattopadhyay, Crl Appeal.No. 1711 of 2019; Seniors Fraud Investigation Office v. Nittin Johari & Anr. (2019) 9 SCC 165; Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439; State of Gujarat v. Mohanlal Jitamalji Porwal (1987) 2 SCC 364 : [1987] 2 SCR 677 – relied on

#3. 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 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 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 Judge while adverting to the materials, ought not have recorded a finding based on the materials produced before him. While the Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the A B C D E F G H 454 SUPREME COURT REPORTS [2019] 14 S.C.R. A B C D E F G H 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. However, since the 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 imperative for this Court to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent. A perusal showed 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 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, documents are not adverted to any further since ultimately, these allegations 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, the finding recorded by the Judge of the High Court based on the material in sealed cover is not justified. [Paras 23, 24][469-F-H; 470-A-H]

#4. 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 was indicated the appellant who was the Finance Minister at that point, has aided the illegal transactions since one of the co-accused 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. 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 P. CHIDAMBARAM v. DIRECTORATE OF ENFORCEMENT 455 participate in such investigation as is required by the respondent. Further, 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 is entitled to be granted bail. [Para 25] [471-C-G] 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. Devika Gujral Appeal allowed. B C D E F G H