While granting bail to Chidambaram, SC comes down on ‘sealed cover’ tactics

It will be an understatement to call the Supreme Court’s decision to grant bail to former Union Minister P Chidambaram in the INX Media case as ‘balanced and comprehensive’. In fact, the three-judge Bench has reiterated certain golden principles that virtually pre-empts prolonged incarceration and undue harassment of accused persons in the pre-trial stage in future.

In that sense, the implications of Wednesday’s verdict goes far beyond just giving relief to the former Union Finance Minister in the INX Media case. The court has redrawn the red lines that will discourage excessive and vindictive zeal on part of the prosecution and also deter lower court judges from rejecting bail applications without application of mind and by relying solely on the charges levelled.

A closer reading of the full text of the judgment reveals that Justices R Banumathi, A S Bopanna and Hrishikesh Roy have taken a stern view of the increasingly frequent practice of prosecuting lawyers submitting secret evidence in sealed covers. The judges have also come down heavily on the tendency to deny bail based only on the perceived gravity of the charges.

The apex court has also strongly underlined the importance of applying the ‘Triple Test’ in bail hearings - whether the accused is a potential absconder, whether he can tamper with evidence and whether he is in a position to influence witnesses.

In Chidambaram’s case, he was made to languish behind the bars for more than a hundred days despite passing all three tests as acknowledged by the High Court itself. This smacks of vengeance rather than natural justice, particularly since bail applications should not be decided by going into the ‘merits of the charges’ – it is only at the trial stage that innocence or guilt will be adjudged.

The three-judge Bench has made certain very pertinent observations regarding the habit of judges in bail hearings to rely on “documents in sealed cover” produced by prosecution. The recording of findings based on such secretive sealed cover documents, as if they are clinching proofs that the alleged offence has, in fact, been committed, is contrary to the very concept of fair trial.

The Supreme Court said: “It would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail”.

This would have far-reaching implications. In several bail hearings of late, the prosecution lawyers have resorted to the tactic of claiming to have sensational or incontrovertible new evidence that cannot be made public and hence needs to be shown only to the presiding judge in confidence.

The apex court Bench took strong exception to judges placing blind faith in such sealed cover documents and refusing to grant bail on that basis. In Chidambaram’s case, the Delhi High Court had recorded findings from the sealed cover notes submitted by the Enforcement Directorate and rejected bail.

The apex court has now spelt out a clear guideline. On one hand, courts at bail hearings can certainly receive evidence and documents collected during the investigation. But, on the other, the judge cannot and should not record findings on the basis of the material contained in the sealed cover.

The Bench came down heavily on the Delhi High Court judge who refused bail to Chidambaram. Incidentally, he passed the order just 48 hours before his retirement and was promptly given a prestigious new position as a tribunal chief within a few days.

The apex court said: “While the learned Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned Judge ought not to have recorded finding based on the materials produced in a sealed cover”.

It went further: “Hence in our opinion, the finding recorded by the learned Judge of the High Court based on the material in sealed cover is not justified”.

Yet another peculiar aspect of the Delhi HC judge’s rejection of bail was that the wording of his judgment contained an almost verbatim copy of certain paragraphs from the ED’s arguments. Chidambaram's lawyers had indeed submitted that the Delhi High Court had incorporated the contentions made in the counter-affidavit filed by the ED, as if to give the impression that they were the findings of the Court.

Whereas in fact there were startling similarities in the wording in paragraph 57 to 62 of the High Court judgment authored by Justice Suresh Kumar Kait and paragraphs 17, 20 and 24 of the counter-affidavit submitted by ED.

The Solicitor General, trying to counter this, submitted that the conclusions of the Delhi High Court were based on the documents given by the ED in a sealed cover.

It was then that the Supreme Court questioned the propriety of the high court's reliance on sealed cover documents. The apex court said: “In the present circumstance we were not very much inclined to open the sealed cover although the materials in sealed cover was received from the respondent. However, since the learned Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for us to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent”.

The Apex Court said that the sealed cover notes contained allegations regarding Karti Chidambaram opening shell companies and purchasing benami properties in the name of relatives. The Court stated that it had no wish to refer to those documents any further except for mentioning the nature of allegations in them. Ultimately, these allegations needed to be proved in trial, the Court said.

The Court disapproved the factual observations made by the high court and clarified that they should not be regarded as an opinion on the merits of the allegations.

The apex court said: “We disapprove the manner in which the conclusions are recorded in paragraphs 57 to 62 (of Delhi HC judgment) wherein the observations are reflected to be in the nature of finding relating to the alleged offence”.

In another instance, a similar thing happened while the Delhi High Court considered the bail plea of Chidambaram in the case registered by CBI in relation to INX transaction. There too, the Supreme Court had disapproved the manner in which that judge had verbatim quoted from the notes given by the respondent .