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Arrest of P. Chidarmaram

Since the night, former Financial Minister Mr Chidambaram was arrested, there has been a lot of debates, discussions and deliberations about the manner of his arrest by CBI, jumping his residence walls and entering his premises. What does it look like from a legal point of view?

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PC is accused in cases registered both by CBI And ED involving grant of FIBP clearances to a firm named INX media, when he was the then finance minister of India and his son Karti was hired as  consultant after the attempts on merits to secure finances failed. The allegations are very serious and speaks for itself on the face of it. Indrani Mukerjea and her husband Peter Mukherjea, who co-founded INX Media in 2007, had been charged with entering into a criminal conspiracy (120 B) with Karti Chidambaram to evade punitive measures for not having the necessary approvals from the Foreign Investment Promotion Board and thereby undue windfall gain to the accused persons. The Central Bureau of Investigation (CBI) had registered an FIR on May 15, 2017, alleging irregularities in the FIPB clearance, the Enforcement Directorate (ED) lodged a money laundering case in 2018. The company had proposed to get FDI worth ₹ 4.62 crore, which was cleared by the FIPB with approval from then finance minister Chidambaram. But in violation of the conditions, the company received ₹ 305 crore with a premium of ₹ 800 per share.

The investment raised suspicion, prompting the Income Tax (IT) department to issue a letter to the FIPB, demanding a probe in the matter. The board told the IT department that the matter was verified and also sought clarifications from INX Media.

There is no doubt that allegations no matter how strong cannot be taken the form of proof and elaborate documentation of the merits of the case is done at the stage of trial. But when and where the question of custodial integration comes is the fundamental question which needs to be discussed. CBI had given him statutory notices to appear before the agency and also to produce certain documents. He appeared respecting the summons. 

Wilful disobedience of summon itself is an offence. But, appearing diligently automatically does not mean that he cooperated with the investigation. Non cooperative and evasive attitude in providing answers to questions was the primary grievance of CBI. Another ground given by CBI was confrontation with other co-accused and massive documents. The argument that he has been arrested as a result of vindictive politics fails because of two accounts. Firstly, the Government arrested him during second term. They could have done so in their first term itself in case they had a grievance. Secondly, Mr Amit Shah never told him to give clearances to INX media. Provision 9.2 of the CBI manual makes it clear that it has to be seen whether the conduct of a public servant involved was a genuine decision in public interest or a criminal misconduct. 

After applying mind only a case is registered by CBI. If primafacie, no case was made out Mr PC could have filed a case challenging summons as illegal, instead of coming to CBI office and joining investigation. Many people in legal circle are discussing that confession of an approver is not creditworthy as per proviso to section 114 of the Indian evidence act unless corroborated with independent piece of evidence. Supreme Court also in Papu kalani’s case said that statement of a co accused is a very weak piece of evidence and only on the basis of which conviction cannot be made. The case rests on the evidence of one Indrani who herself is accused of killing her own daughter, who has turned approver in the case. 

In March, 2018, Indrani Mukerjea told the CBI in a statement that a $1-million deal had been struck between Karti Chidambaram and the Mukerjeas to secure FIPB approval in favour of INX Media. But, we have to understand that this statement is not the only piece of evidence. ED has documentary evidence and also have recovered money trail of the payments made to karti from INX.ED has already attached properties worth 54 crores of Karti.

The case has independent evidence and voluminous documents to at least form a strong prima facie case. Therefore the statement of co accused only gives credence to the facts. The arguments by Chidambaram who is a seasoned lawyer in the press conference soon before his arrest that FIR or charge sheet did not name him is fundamentally wrong. The Hon’ble Supreme Court of India has time and again said that FIR is not an encyclopaedia of the commission of offence. It can be even one paragraph only disclosing a commission of cognizable offence. Charge sheet has not been filed against him because investigation is still open, his name can come under 173(8) of Crpc in future. 

He was under the protective umbrella of an anticipatory bail till his arrest. When his bail application was rejected there was no bar under law by CBI to arrest him in the absence of any stay by any competent court. Arrest was made after obtaining warrant from competent authority and following due procedure of law. Even, under section 41 of Crpc CBI can arrest him without a warrant. However, the high court while dismissing bail application two days before his retirement should not have discussed the merits of the case and identified in the bail order about the conduct of the alleged accused. High court should have exercised restraint. The High court clearly crossed the brief envisaged, while deciding an anticipatory bail application on merits, which no doubt created a public opinion against the alleged accused. The high court may have been correct in facts but it was certainly not his duty at least while deciding a 438 petition. 

However, the grievance that Supreme Court did not give an early hearing against rejection also is also an illogical, irrational, and bad argument. Every day’s thousands of people in India who file anticipatory bail applications on merits have to wait for their turn to come serially. In Orissa High court sometimes it takes more than 15 days. In court of law, everybody is an alleged accused irrespective of the stature of the person. The court is not duty bound to give preferential treatment to somebody because of his stature. He could have very well stayed at a safe place than appearing in press conference and giving a guest lecture on life and liberty. Supreme Court never denied him a right of hearing infact supreme court listed the matter within 48 hours. 

Three former Advocate Generals of Orissa have got anticipatory bail and one has got regular bail. Coincidentally, they all had the same advocate to defend them. That never indicated that they were guilty or accused, it only meant that they apprehended arrest in case of non-bail able offences and they exercised a statutory right available under section 438 crpc. They never came out in open and did a press conference. Their applications were also listed serially and on merits. Supreme Court never got a chance to adjudicate the present case on merits because Mr Chidambaram indirectly surrendered before the investigating agency and appeared as a victim, thereby making the petition in Supreme Court redundant. Who knows? The court could have even granted him protection from arrest after hearing his advocates. Therefore, his advocates and wrong strategy is to be blamed for this entire situation. Blaming CBI and Supreme Court will be a sign of immaturity and lack of appreciation of ground realty. The only remedy for him is to file a regular bail application once his remand in police custody is over.

The lesson one need to learn is that no one can escape time and destiny. One needs to be absolutely honest and maintain their integrity, when no one is watching. No one is indispensable in this world and no one is above law. Power is a fluctuating thing and changes from time to time. Money may come and go but morality will come and grow. The blame game should be substituted with introspection. The illusion that power will stay forever and anybody can get away always gets destroyed with divine justice. No one, least Mr Chidambaram would have expected that he will be one day in the police custody, which he himself had inaugurated. If he feels that he has been wrongly accused and arrested and as a result of which his social prestige was hampered then he can file a discharge application under section 227 of Crpc at an appropriate state after the special court takes cognisance and before framing of charges and he may also seek compensation from state at an appropriate stage but only when he is found to be not guilty.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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Sarthak Nayak

The author is a Lawyer in The Supreme Court Of India

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