The apex court, while denying anticipatory bail to senior Congress leader and former union minister P Chidambaram in the INX Media money laundering case, said it must be left to the discretion of the investigating agency to decide the course of probe and except in rare cases, the judiciary should keep itself out of it.
A bench of Justices R Banumathi and A S Bopanna said it is not the court’s function to monitor investigation process as long as it does not violate any provision of law, and it should be left to agencies to proceed in their own manner in interrogation of accused and nature of questions put to him.
The bench said Solicitor General Tushar Mehta had rightly submitted that if accused are to be confronted with materials which were collected by the ED with huge efforts, it would “lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences”.
“The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds,” the bench said.
Courts can interfere and issue appropriate direction only when it is convinced that the power of investigating officer is “exercised mala fide” or there is abuse of power and non-compliance of the provisions of Code of Criminal Procedure, it said.
“Investigation into crimes is the prerogative of the police and excepting in rare cases, the judiciary should keep out all the areas of investigation,” the bench said in its 57-page judgement.
Referring to earlier judgements rendered by the top court, the bench said there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication.
“If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused,” it said.
The bench also said it is open for the courts to quash the proceedings where there is a clear case of abuse of power by the investigating officer.
“In the initial stages of investigation where the court is considering the question of grant of regular bail or pre-arrest bail, it is not for the court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses,” it said.
The bench did not accept the contentions of Chidambaram’s lawyer that Enforcement Directorate (ED) be directed to produce transcripts of his interrogation by the probe agency on three dates — December 12 last year and January 1 and 21 this year — so that it could be seen whether his answers to the questions put to him were evasive or not.
It said since the interrogation of accused, questions put to him and answers given by him are part of the investigation, which is purely within the domain of investigation officer, “unless satisfied that the police officer has improperly and illegally exercised his investigating powers in breach of any statutory provision, the court cannot interfere”.
The top court said that privilege of pre-arrest bail should be granted only in “exceptional cases” as grant of this relief, to some extent, interferes in the sphere of probe of an offence and hence, “the court must be circumspect while exercising such power for grant of anticipatory bail”.
“Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy,” it said.
“We are conscious of the fact that the legislative intent behind the introduction of section 438 CrPC (power of granting bail to person apprehending arrest) is to safeguard the individual’s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody,” it said.
The top court said a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest.
The apex court dismissed Chidambaram’s appeal challenging the August 20 verdict of the Delhi High Court denying him anticipatory bail in INX Media money laundering case lodged by the ED saying there were no grounds warranting interference with the order.
The CBI had lodged an FIR on May 15, 2017, alleging irregularities in FIPB clearance granted to INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram’s tenure as finance minister.
Thereafter, the ED lodged a money laundering case in 2017.