P Chidambaram plea for anticipatory bail in ED case: Live Updates from the Supreme Court

The Supreme Court continues to hear the challenge to the Delhi High Court’s refusal to grant anticipatory bail in the Enforcement Directorate’s case filed against former Union Minister P Chidambaram for the second day..Two petitions are listed for today: the SLP against the Delhi High Court order rejecting anticipatory bail in the ED case, and the SLP challenging the order of the Special Judge remanding Chidambaram to CBI custody..Arguments were made yesterday before the Supreme Court Bench of Justices R Banumathi and AS Bopanna, which adjourned the matter for today. Senior Advocates Kapil Sibal and Abhishek Manu Singhvi are arguing for P Chidamabaram. Solicitor General Tushar Mehta is appearing for the Enforcement Directorate (ED)..Chidambaram was sent to custody last week in a similar case filed by the Central Bureau of Investigation (CBI) in relation to the INX Media matter..Yesterday, the Special CBI Court at Rouse Avenue Court Complex extended the CBI’s custody of P Chidambaram till August 30..Live updates from today’s hearing follow:.Senior Counsel Kapil Sibal and Abhishek Manu Singhvi to make arguments for P Chidambaram.Sibal tells the Court that an application has been filed to secure the transcripts of the interrogation.Statements made are admissible against the accused. Documents cannot be made part of the case diaries behind the back of the accused, Sibal.The application for production of transcript concerns the questioning of P Chidambaram that took place on December 29, 2018 and January 21, 2019, Sibal informs the Court.Abhishek Manu Singhvi begins his submissions. On the issue of sealed cover, Singhvi says that the questions put before the accused and the answers given should be told to the Court.On preventive detention, Singhvi cites ADM Jabalpur judgment on the issue of ex parte communication with the Bench without informing the detenue.Even in the judgment (ADM Jabalpur) it was opined that what is the use of producing material before Court if it has not been out before the party itself, Singhvi.This (ADM Jabalpur) is a case from the time when fundamental rights were suspended, Emergency was proclaimed and the judgment is generally considered bad law for taking extreme view on curtailing liberties. Even this judgment spoke against ex parte communication, Singhvi.Singhvi argues on restrospectivity now. He says the alleged acts took place prior to the amendment of the PMLA which was notified in 2009. The alleged acts which were declared as offences as under PMLA amendment took place in 2007-08.The Sections Chidambaram is charged under in the FIR were declared offences only in June 2009 through notification of amendment of the PMLA, one year after the alleged acts took place, Singhvi.Personal liberty is put on a very high pedestal. Articles 20 and 21 are non-waivable. These are non derogable rights. Even in times of war and Emergency, all rights can be suspended but not Articles 20 and 21, Singhvi.Speaking on retrospective application, Singhvi says a person is being painted as a Kingpin of an alleged offence which did not exist as an offence at the time it was committed.Singhvi says that the order of the Delhi High Court is based on the distorted idea of evasion.The twin factors on which the High Court has denied bail are evasion and gravity, Singhvi.So long as I’m available for questioning, I can give whatever answer to the questions put to me. I’m not obliged to give the answers that the agencies want to hear, Singhvi.The questions that were put to Chidambaram were largely repetitive, SinghviSG Tushar Mehta interjects, We are not opposing this in principle… We want his custodial interrogation, not custodial confession. So we need not go to Magna Carta for this point.Singhvi responds, one of the reasons I’m denied pre-arrest bail is that I’m not answering questions, so Magna Carta is important.There is no concept of evasion if I’m present for questioning. Have I ever refused to come for the questioning? – SinghviI have answered all the questions put to me. But the only question they are asking is, “Do you have an overseas bank account?” and so forth. This is why why we have filed for the transcript of the interrogation.Bench rises for lunch..Post Lunch Session.Post lunch session begins. Senior Counsel Abhishek Manu Singhvi resumes his arguments.Non-cooperation or flight risk is if I’m not making myself available for questioning. But here, I’m going whenever I’m being called, Singhvi on ED’s allegation of Chidambaram being evasive.Evasion in this context appears to be only one thing that the prosecution is saying ‘Give me the answer I want or else it is evasion’.Gravity as a factor has been referred to in the Delhi High Court judgement multiple times. But “gravity” is a subjective term. Best test for gravity is period of punishment or sentence, Singhvi.CrPC has an interesting scheme where offences with punishment of upto seven years’ imprisonment are considered less grave, Singhvi.The learned Judge (Justice Sunil Gaur of the Delhi High Court) by using the word “grave” repeatedly is doing nothing but using a subjective adjective, Singhvi.The Court, in Karti Chidambaram’s case, had recorded the statements of the six FIPB Secretaries who said they were never approached by Karti for approvals, Singhvi.Singhvi highlights the portion of the High Court order which states that Parliament should be consulted for cancellation of provision of pre-arrest bail in high profile cases.The Judge is effectively saying “high profile” people don’t have Part 3 rights, Singhvi.The real test in bail has to be the triple test – absconding, non-cooperation, and flight risk, Singhvi.Tampering of evidence is not possible. The FIR was only filed in 2017. Documents could have been vanished if one wanted to tamper with anything, Singhvi.Flight risk virtually doesn’t arise, unless in a case of a terrorist. Non-cooperation cannot mean to be one not giving answers they want, Singhvi.Article 20 cannot be made fun of in this manner, Singhvi.You’re trying to catch an offence which was committed when it was not an offence, Singhvi.Singhvi concludes his arguments. Sibal informs the Court of the applications filed in the matter – one concerns placing on record of transcripts of interrogation, and the other deals with filing additional affidavit in the SLP challenging CBI remand.The CBI remand of P Chidambaram was extended by the Special CBI Judge on Monday. The second application relates to filing of affidavit to assail the extension of remand..The hearing in the case to continue tomorrow, August 28 at 2PM when Solicitor General Tushar Mehta will argue on behalf of the Enforcement Directorate.Interim protection from arrest in the case filed by the ED to continue.