The P Chidambaram Bail Saga: Are the Courts writing a new law?

Bar & Bench September 15 2019
P Chidambaram

Shobha Gupta

The case of P Chidambaram seems like a new chapter in the law of bail in India. There are a number of aspects of the case that stray away from criminal law jurisprudence. 

To begin with, his implication in the INX Media case appears to be based on the solitary statement of a murder accused while she was in judicial custody. Moreover, the statements made by her before the Court in her own case were not believed by the Court, and she was denied bail despite her claim of innocence. Quite surprisingly, the statement of the very same person became a very valuable piece of evidence for the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) to investigate the allegations against P Chidambaram. Since they have not found any corroborative evidence to nail Chidambaram, they have insisted for his custodial interrogation. 

Most interestingly, one of the arguments to oppose his anticipatory bail and to seek his custodial interrogation was that the investigating teams are dealing with “an intelligent person” and truth can only be culled out from him once the protective cover of the anticipatory bail is off. All said and done, the anticipatory bail applications of P Chidambaram in both the ED and the CBI cases were dismissed by the Single Judge of the Delhi High Court by a detailed order (24 pages to deny bail). In the order, the judge spoke heavily on the merits of the case. As per the settled principle of law laid down by the Supreme Court, this should be avoided.

 In Kashi Nath Roy v. State of Bihar, the Hon'ble Supreme Court has reminded that,

As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of “presumption of innocence of an accused” gets jeopardized; and the structural principle of “not guilty till proved guilty” gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter”.

 Before the Supreme Court, as an exception, the anticipatory bail matter was argued at length by both sides. Here again, the prosecution agencies vehemently opposed the prayer of Chidambaram seeking anticipatory bail, mainly on the ground that the protective umbrella of anticipatory bail must be removed. As a normal rule, any person has to be treated innocent until proven guilty and can be booked in any case only if there is any prima facie evidence. In this case, he has been booked on the basis of a solitary statement of a co-accused, who is also the main accused in a murder case in which trial is ongoing.

Another interesting aspect is that the two prosecuting agencies have registered two separate cases on virtually the same allegations. An interesting game is being played to ensure that he should not be allowed to come out. 

The High Court dismissed the anticipatory bail in both the cases on August 20. Before the matter could be heard by the Hon’ble Supreme Court, Chidambaram was arrested by CBI on August 21. In a bid to nab him, CBI Officers scaled the walls of his residence as if he is a hardcore criminal, a big time gangster, who would have flown away had he not been nabbed by them then and there. 

The CBI obtained police custody of him on August 22, which was extended from time to time till September 5, when he was sent to judicial custody in the CBI case.

The Hon’ble Supreme Court granted interim protection to Chidambaram on August 23 in the ED case. This was then removed on September 5, when his anticipatory bail application was dismissed by the Supreme Court by a detailed order (57 pages long). Again, the Court looked into the merits of the case at length and held that the allegations against him being serious, custodial interrogation is required. 

Now, the point is that in view of the fact that the ED insisted before the High Court and the Supreme Court that his custodial interrogation is needed for fruitful investigation, the ED ought to have taken custody of Chidambaram immediately after rejection of his anticipatory bail application by the Supreme Court on September 5. However, it did not do so. 

On the completion of 14 days’ police remand period in the CBI case, when Chidambaram was sent to judicial custody, he applied for regular bail before the Special CBI Court, which was dismissed. He is currently pursuing his regular bail before the Delhi High Court. 

The very same ED which was insisting for custodial interrogation of Chidambaram before the Delhi High Court and the Supreme Court while opposing the anticipatory bail, has till date not taken custody of Chidambaram. The former Union Minister even offered his custody by filing an application for surrender before the Special Judge, but the ED opposed the application saying that it does not want his custody as of now. Interestingly, even this application has been dismissed by the Special Judge. Thus, even if Chidambaram were to get regular bail, the fear of police custody and then judicial custody would continue to hang upon him in the ED case. 

It does not seem to matter that he has made himself available to both the agencies, and that both cases are based on the same set of allegations. His right to live free and with dignity under the Constitution is under threat. The way in which the P Chidambaram bail saga has progressed is a puzzle.

The author is an advocate practicing at the Supreme Court of India.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.