TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 879
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....e 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 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 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 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 receip....
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....hat 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 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 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 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 ....
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....our of the appellant, CBI has filed SLP(Crl.) No.9445 of 2019. 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 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 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....
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....llant has not left the country ever since, instead he had joined the investigation and co-operated with the investigating agency. It was further submitted 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 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 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 wi....
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....g 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 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 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 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 an....
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....rate'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 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 submitted that after the anticipatory bail was dismissed by the Supreme Court in Criminal Appeal No.1340 of 2019 on 05.09.2019, 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 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....
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....t "flight risk" of economic offenders 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 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 (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 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 acc....
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....gh 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 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 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 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" i....
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....', 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 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. 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 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 ....
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....oner 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 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 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 other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is sai....