ED's Objection To Bail Plea Would Send A Wrong Message To The nation 'As If I am Ranga-Billa':Submits Sibal For Chidambaram

A 3 judge bench of the Supreme Court comprising of Justices R Bhanumati, AS Bopanna and Hrishikesh Roy today began hearing former Union Minister, P Chidambaram's plea challenging the Delhi High Court's verdict denying him bail in relation to the INX Media case made out by the Enforcement Directorate.

Senior Advocate Kapil Sibal representing Chidambaram stated that it had been 99 days since he had been in custody. Despite the High Court agreeing that all 3 conditions of the Triple Test, the parameter to measure whether one should be granted bail or not, were in his favour, the Court still denied bail, he submitted.

He was found not to be a flight risk, nor in danger of tampering with evidence or influencing witnesses, the conditions of the triple test, by the High Court. The ground given for refusing bail, he added, was gravity of offence.

He went on to submit that there were no allegations against him and no documents to prove any such allegations.

"Not one email, one SMS, not one document has been found that connects me to anything. All the others are out, yet I'm in jail because they call me the 'kingpin'", said Sibal. He argued that despite being the only one without having any allegations regarding exchange of money in this case, he's being assumed to have been involved because he is Karti Chidambaram's father.

"FIRs filed in the CBI case and ED are the same…CBI filed a chargesheet against me for taking a bribe amounting to a sum of ₹10 lakh and now under PMLA, the claim is crores have been laundered by Karti's allegedly controlled company, Strategic Advantage…and since I'm his father, I must be the kingpin", he said.

Sibal went on to allege that the idea behind all of this was to keep Chidambaram inside for as long as possible.

"I was not interrogated or confronted with witnesses who recorded their statements and have been available since 2018 but the ED suddenly looks into the case in the last 41 days", he added. "They don't interrogate me till November 23, but then do so only because they know the case is coming up for hearing."

Sibal proceeded to dissect the High Court judgment and submitted that its findings had been taken "word for word" from the ED's counter affidavit before the court. He urged the court to remember that an affidavit becoming the High Court's findings was said to be a wrong practice by the same bench when they had granted Chidambaram bail in the CBI version of the same case.

He further submitted that the investigation agency's submission to not grant him bail would send the nation a wrong message was to say "as if I'm Ranga Billa".

Sibal further pointed out that allegations against him had not been established and questioned the point of having a charge at all if despite a lack of establishment he was still in jail. "Might as well convict me since the gravity of offence won't change."

Explaining further, Sibal highlighted that an FIR is filed under the CrPC when there's a cognizable offence but in PMLA, there's an internal document called ECIR and not an FIR to submit that in this case, CBI's FIR had become the ECIR.

"An offence under PMLA requires there to be a predicate offence before proceeds of a crime…But no crime or offence has as yet been established…They say bribe of ₹10 lakh taken but ED says proceedings run into 1000s of crore", he added.

He then argued on the ground of 'gravity of offence' to deny bail. The maximum punishment for the offence Chidambaram has been charged with under PMLA is 7 years, he informed and argued that the gravity of offence is to be seen in accordance to the length of sentence, which is ascertained after finding the accused guilty.

"The offence itself is not established, let alone gravity of the offence", he asserted. It was submitted in conclusion that if the gravity of offence is enough to deny bail, and if the court accepts that, one could be incarcerated for life. "The only argument they have is Karti was a beneficiary through a company that he allegedly owned and I am his father."

Senior Advocate Abhishek Manu Singhvi then argued, extensively on the issue of the gravity of an offence as a ground to deny bail. It cannot be the sole ground to deny bail under the law, he stated, except in cases involving exceptional circumstances. These circumstances would be prevalent in cases involving child molesters, terrorists or repeat offenders, he argued and reminded the bench that none of those were at play in the present case.

"Will I be in jail till trial is over on the ground of gravity? If we were to go by the ED and High Court's reasoning, it would mean bail can be denied without any ground, merely on allegations. What a ridiculous conclusion."

Gravity of an offence, he also stated, was relative and decided on the basis of length of sentence. There's a distinction in criminal law in the manner in which offences presrcibing more than and less than 7 years' imprisonment are dealt with, and those with less than 7 years imprisonment are relatively less grave, he argued.

Referring to precedents set out by the Apex Court, Singhvi attempted to establish that

· Object of bail to secure the appearance of the accused

· Object of bail is neither punitive nor preventative

· Deprivation of liberty must be considered a punishment, unless required to ensure that the accused will stand his trial when called upon
"If the object is to ensure I appear before court, why am I in jail for almost 100 days?"

Citing another judgment, it was submitted that the proper test to be applied is whether it is probable that the party can appear for trial, and if not, bail could be refused.

Singhvi concluded his arguments by pointing out that the Delhi High Court verdict had relied on merits of the case and in bail matters, the court must refrain from going into merits.

The matter has now been adjourned for tomorrow, November 28, when the Solicitor General Tushar Mehta will appear and present his arguments on behalf of the ED.

In the meanwhile, the Special CBI Judge Ajay Kumar Kuhar, in Rouse Avenue court today, extended Chidambaram's judicial custody till December 11.