The Supreme Court on Thursday reserved its order for 5 September on the interim bail plea by senior Congress leader and former finance minister P Chidambaram in the INX Media money laundering case being investigated by the Enforcement Directorate (ED). The interim protection, earlier granted to Chidambaram by the apex court in the case, was also extended till 5 September.
A bench of justices R Bhanumati and AS Bopanna, which was hearing the matter, also asked the ED to place before it in a sealed cover the material which the agency wanted to produce for the court's perusal. The top court said it will later decide on whether or not the court should look at these documents.
During the hearing on Thursday, ED's counsel Solicitor-General Tushar Mehta told the bench that they needed custodial interrogation of Chidambaram to unearth the larger conspiracy in the INX Media money laundering case under the Prevention of Money Laundering Act.
He also said that if Chidambaram is granted anticipatory bail, it would affect cases involving liquor baron Vijay Mallya, businessman Mehul Choksi, fugitive diamantaire Nirav Modi and controversial preacher Zakir Naik.
"Money laundering is an offence against the society and the nation and the probe agency has a right and duty to unearth the entire conspiracy," he told the bench, adding that the apex court has consistently held that economic offences are "gravest of grave" irrespective of the sentence prescribed for it.
Countering the arguments of Chidambaram's advocates Kapil Sibal and Abhishek Manu Singhvi that PMLA offences with seven years of punishment are not a grave offence because as per the Criminal Code of Procedure grave offences entail death penalty and life, Mehta said, "Chidambaram's counsels have argued that gravity of an offence is subjective. PMLA offences may not be grave for them but the courts have consistently held that economic offences are grave in nature. Gravity is a relative concept. Quantum of punishment is not relevant. What's important is what will be the impact of your offence in society. Money laundering is an offence against the society, nation and economy. Economic offences are gravest offences irrespective of quantum of sentence," Mehta said.
The apex court was hearing Chidambaram's plea against the 20 August order by Delhi High Court denying him anticipatory bail in the ED case.
Mehta also objected to the proposition made by Sibal to confront him with evidence before presenting it in court, saying it was "absurd" and would have "devastating results" and is "preposterous".
Whether the accused's reply was evasive or not is decided by investigating agency and not by the court, he added.
"The investigating agency has absolute discretion on to what extent it should reveal evidence to the accused. It is best to confront the accused with evidence when he is in custody," Mehta told the court.
During the hearing, Mehta also said that if Chidambaram was given anticipatory bail, he may erase the money trail, influence the witnesses or tamper with evidence.
"It's impossible to investigate when he's armed with anticipatory bail. It's ED's right and duty to unearth the truth. It would be difficult for the ED to catch him if he is under a protective umbrella and best way to elicit truth is when an accused is not under a protective umbrella," he said.
He also argued that the top court cannot be created as a regular court of appeal of the orders of the high courts, lower courts, and magistrate courts. The apex court is "meant to lay down the law".
Mehta said that during the course of the proceedings in the Delhi High Court, a note was filed and it was examined by the judge, adding that in the judgment it is said twice that the records have been examined to arrive at the conclusion.
"We are showing a document of evidence and they are saying don't show it to the court before showing it to me. I want the court to look at the material in my possession, including the statement of the accused, I have nothing to hide. I would insist that court must look into the material available so that there is no iota of doubt about whether or not the material is cogent," Mehta said while concluding his arguments, and added that he has documents in a sealed cover if the top court wanted to see.
During his rejoinder, Sibal said that the demand for arrest was unfair and unreasonable. "Our case was that there are two reasons given by the Delhi High Court for denying anticipatory bail: gravity of offence and evasive replies of accused to the questions put to him. If this is the reason that he gave evasive answers, our prayer was that please see the questions and please see the answers," he said.
Reiterating his claim that the high court judge 'copy-pasted' the contents of a sealed cover note submitted by the ED, he said, "I have never seen the judgement of a court with cut and paste of a note handed over, comma to comma, with no counter. In this case, conclusions of the investigating authority become conclusions of the judge."
He also criticised the ED for submitting the note to the high court after the conclusion of proceedings. "This is travesty of justice when a note is placed before the court after proceedings are over and the same note is reproduced in the judgement as the opinion of the court and later extracted as the findings of the court."
Sibal said, "Sealed covers are not meant to seal the liberty of a man. If they (agencies) don't file the complaint for four years saying investigation is going on, will I not be able to get a bail for four years?"
Sibal and Singhvi also clarified that they never argued that they wanted access to the material collected by the ED. "It is not a case of an accused seeking materials against him. There is no application or prayer by me seeking these materials or to disclose to me or give to me," Singhvi said.
As the hearing went on, Chidambaram's son Karti tweeted that the business of submitting sealed covers must stop in the judicial process.
This sealed cover business must stop in our judicial process https://t.co/114XpeeYhw
— Karti P Chidambaram (@KartiPC) August 29, 2019
P Chidambaram has been in CBI's custody since 21 August, which is also investigating the INX Media case. The Supreme Court on Thursday posted for 2 September Chidambaram's petition challenging the 22 August order of a Delhi court remanding him to CBI's custody.
Sibal said that Chidambaram was offering himself to remain in CBI's custody till 2 September. "Enforcement Directorate should not have any problems with the offer. My (Chidambaram's) CBI remand is coming to an end tomorrow (Friday) in the CBI's case," Sibal said.
Solicitor-General Tushar Mehta opposed the submission saying extension of remand can only be done by the trial court as the case is pending there. "If the same offer is made before the trial court tomorrow (Friday), then we may have no objection to it," Mehta said. Under the Code of Criminal Procedure (CrPC), an arrested accused is remanded in judicial custody and sent to jail after the conclusion of the custodial interrogation by the investigative agency.
Earlier on Thursday, Indrani Mukerjea, the jailed INX Media co-founder who turned approver in the corruption case linked to Chidambaram, showed exuberance over the former finance minister's arrest. "It is good news that P Chidambaram has been arrested," she told media persons outside the sessions court in Mumbai, where she was produced in connection with the murder case of her daughter Sheena Bora.
In 2017, the CBI had registered an FIR alleging irregularities in the Foreign Investment Promotion Board (FIPB) clearance given to INX Media to the tune of Rs 305 crore in 2007 when Chidambaram was the Union finance minister. Following the FIR filed by CBI, ED lodged a money laundering case against him.
With inputs from agencies
Updated Date: Aug 29, 2019 20:09:21 IST