SC: Findings cannot be based on materials produced in a sealed cover

The Hon’ble Supreme Court, on 4th December 2019, in the matter of P. Chidambaram v. Directorate of Enforcement observed that materials produced in a seal cover can be looked into to satisfy judicial conscience but a finding cannot be based on them.

The Hon’ble Supreme Court observed that:

The grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. (Para 21)

Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. (Para 21)

One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. (Para 21)

Even if the allegation is one of grave economic 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. (Para 21)

Irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. (Para 21)

While a Judge is empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, but he ought not to record a finding based on the materials produced in a sealed cover. (This inference has been drawn on the basis of Para 23)

It would be open for the Court to peruse the documents in a sealed cover, but 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 inference has been drawn on the basis of Para 23)

Copy of judgement: Judgement_04-Dec-2019

-Adv. Tushar Kaushik

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