Sealed cover reports can prejudice accused, says SC
New Delhi: As the Supreme Court on Wednesday paved the way for former Finance Minister P Chidambaram to be released from Tihar after 105 days of custody in the INX Media case (both CBI and ED), the top court also made singularly interesting observations that could set a strong precedent for upcoming cases of similar nature. The judgement, which was made public on Wednesday morning, in addition to establishing that economic offences are "grave" in nature also opines on why the High Court of Delhi had erred in dismissing Chidambaram's regular bail plea in the ED matter based on the contents of the sealed cover report submitted by the financial probe agency.
The judgement, authored by Justice AS Bopanna on behalf of the three-judge bench comprising himself and Justice R Banumathi and Hrishikesh Roy, firstly reiterated and established that economic offences are in fact "grave" in nature and that this aspect should be considered by a court hearing bail/anticipatory bail matters.
The court went on to say that this assessment of whether an offence is "grave" should be made based on facts and circumstances of each separate case and that such a consideration should be made in addition to the triple test, which sets out the three conditions an accused must satisfy to be granted bail - first, they must not be a flight-risk; second, they must not have tampered with evidence; third, they must not have tried to influence witnesses.
The Apex court, however, held that even when such a consideration is made as to the gravity of offence, "it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so" - essentially meaning that bail is still the rule and jail is the exception. The ultimate consideration in such cases should be on a case-to-case basis and making sure the accused is present to stand trial.
A salient feature throughout the court proceedings in the INX Media case since Chidambaram was arrested on August 21 was investigative agencies choosing to submit sealed cover reports to the court, starting from the trial court to the Supreme Court. In Wednesday's order, Justice Bopanna makes it clear that the single-judge bench of the Delhi High Court was not justified in recording findings based on the sealed cover report of the ED.
The top court went to say that while courts are open to receive such sealed cover reports to satisfy their conscience on whether the probe is proceeding in the right direction in deciding bail/anticipatory bail matters; it also cited a previous judgement in the Chidambaram case, saying that it had previously consciously refrained from perusing a sealed cover report so that no observations are made to prejudice the accused pre-trial.
The three-judge bench on Wednesday noted that Justices Bopanna and Banumathi had in the judgement denying anticipatory bail to Chidambaram in the ED case in September, consciously chosen to not go through the sealed cover report as "it would be against the concept of fair trial". However, in the present case, the Supreme Court felt the need to open the sealed cover report as the High Court judge had decided the case after doing so himself.
But it also noted that it has only gone through the documents and material collected by the agency with respect to allegations against Karti Chidambaram and did not go beyond that as allegations against Chidambaram would have to be established in the trial.
A subtle hint
The Supreme Court in establishing that sealed cover reports from investigative agencies could prejudice the accused before trial may have also hinted at the CBI's case in the INX Media matter. After a bench of Justices Bopanna and Banumathi had granted bail to the Rajya Sabha MP in the CBI's INX Media case, the agency had filed a review petition against the October 22 judgement, alleging that the Apex court had not perused the sealed cover report it had submitted.
According to the CBI, the report included witness statements, that according to them would prove that Chidambaram could be influencing witnesses in the case. However, the Supreme Court had held that there was no material on record to show in what specific way he was trying to influence the said witnesses.
But the recent bail judgement points towards why the court might have chosen not to go through the sealed cover report. This decision clearly shows that going through sealed cover reports while deciding on bail matters might amount to prejudicing the accused before trial. In fact, even in the ED case, the Justices noted that they would not have gone through the report unless the High Court had based its decision on its contents and still they only went through allegations pertaining to Karti and not his father.
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