Chidambaram Denied Pre-Arrest Bail: What ‘Sibbia’ Case Tells Us

Was Chidambaram ‘wrongfully’ denied anticipatory bail? Here’s what we can learn from a precedent, viz. ‘Sibbia’.

Image of P Chidambaram used for representational purposes.

(Photo Altered By The Quint)

Former Finance Minister P Chidambaram’s plea for anticipatory bail, ended with polar opposite results from two courts on either end of the judicial hierarchy. The Supreme Court upheld the Delhi High Court's rejection of Chidambaram's application for anticipatory bail in the INX Media case. A few blocks away, the Special ED Court, on Rouse Avenue, granted the former union minister pre-arrest bail, in the Aircel-Maxis case.

It is not odd that two different courts should exercise their discretionary power differently. After all, a universal formula was never intended in the grant or denial of anticipatory bail. The standard is fluid, and courts have the widest amplitude in deciding cases. That said, the factors that weighed with the Supreme Court in declining anticipatory bail in P Chidambaram crystallized a departure from its point of origin.

What is Anticipatory Bail?

Anticipatory bail, loosely described, is bail before arrest. Unlike regular bail, an individual does not have to wait to be arrested to be then released on bail. The law permits anyone who apprehends arrest by the police, to move for anticipatory bail, without waiting to be taken into custody. Once anticipatory bail is granted, arrest is a mere formality. The accused, if arrested, is released immediately.

As an express remedy, anticipatory bail entered the statute book only in 1973. The Law Commission’s 41st Report (1969) recommended the inclusion of anticipatory bail as a remedy, in order to strike a balance between personal liberty of an accused, and the state’s power to investigate. The ruling was simple: one need not risk her personal liberty, if she is willing to submit to the court, stand trial and cooperate in the investigation.

Anticipatory bail, as a remedy, was thus introduced as an additional safeguard to one’s constitutional right to life and personal liberty.

Judgement in Sibbia’s Case: A Binding Precedent

Just a few years after anticipatory bail was introduced as a provision in the Code of Criminal Procedure in 1973, Gurbaksh Singh Sibbia, the then minister for irrigation of Punjab, approached the Punjab & Haryana High Court for the grant of anticipatory bail. Sibbia faced allegations of corruption and abuse of office. He pleaded that he be granted anticipatory bail, as he was willing to join and cooperate in the investigation.

The High Court however rejected Sibbia’s plea, on two principal grounds.

First, that anticipatory bail is an “extraordinary” power that needs to be used sparingly; and second, that grant of anticipatory bail would result in impeding the investigation. Sibbia appealed.

Sibbia’s challenge in the Supreme Court was heard by a constitution bench of five judges, resulting in a detailed ruling authored by Chief Justice YV Chandrachud. In Sibbia, the apex court rejected the Punjab & Haryana High Court’s conclusions, and set out with painstaking detail the contours of the grant and denial of anticipatory bail.

The judgment in Sibbia was among the earliest in relation to anticipatory bail.

The Court, in Sibbia, saw no reason as to why the power to grant anticipatory bail must be treated as something very “volatile” and “incendiary.” The constitution bench there held that the power to grant anticipatory bail is probably “extraordinary” in character, only in the sense that it is not ordinarily attracted like the power to grant regular bail. The intention of the law was clearly that personal liberty should not be in peril without cause, and arrest need not be the inevitable first step in every investigation.

The judgment in Sibbia, is till date, the largest bench of the Supreme Court to have ruled on the subject, and therefore, is also the binding precedent that holds the field.

From ‘Sibbia’ to ‘Chidambaram’: How the Courts Ruled

As per the settled law in Sibbia, anticipatory bail is a special procedural mechanism concerned with the life and liberty of an accused, who is otherwise entitled to the presumption of innocence.

Interestingly, the apex court in P Chidambaram’s case, relies on Sibbia for a different purpose altogether, and does not cite it while analysing the case for the grant or denial of anticipatory bail. Instead, the Supreme Court’s analysis is guided by rulings of smaller benches to support its conclusion that pre-arrest bail is a privilege that should be granted only in exceptional cases; that it is an extraordinary remedy which courts must use sparingly — and that, discretion exercised in favour of the accused can hamper the investigation.

The court, in this regard, observed that “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.”

In other words, the Supreme Court came to the very same conclusions that the constitution bench in Sibbia had overturned. The ruling disregards the binding principles settled in Sibbia to instead adopt a position specifically rejected by it.

The transformation that the law has undergone from the Sibbia case to the Chidambaram case is hard to miss.

Sibbia viewed the power to grant pre-arrest bail as a mechanism tilted towards preserving personal liberty, and eschewed arrest as a matter of procedure. In contrast, the court, in P Chidambaram, decided that “…arrest is a part of the process of the investigation. There may be circumstances in which the accused may provide information leading to a discovery of material facts… Grant of anticipatory bail may hamper the investigation.”

Since the early 1990s, and certainly in P Chidambaram, the Supreme Court has preferred to err on the side of non-interference in the domain of the investigating agency.

What’s Different About the ‘Chidambaram’ Case?

Interestingly, on the claim of ‘interference’ with investigation, the constitution bench in Sibbia is categorical that “an order of anticipatory bail does not in any way — directly or indirectly — take away from the police their right to investigate.” On the contrary, a pre-condition to the grant of anticipatory bail is a commitment to court that the accused will join and cooperate with the investigation.

In negation of this approach, the court, in P Chidambaram, draws support from the ruling in CBI v Anil Sharma, which curiously holds that investigation with the accused in custody “is qualitatively more elicitation-oriented than questioning a suspect well ensconced…” with anticipatory bail.

The court, in P Chidambaram, points out that custodial investigation is more crucial in cases involving economic offences, since such crimes affect the economy as a whole. However, the court does not touch upon the issue that the chance of investigation involving documentary evidence over oral statements, is higher in economic offences than others. Shouldn’t the nature of the evidence involved rather the impact of the crime determine whether custodial investigation is warranted?

In the Aircel-Maxis case, it was precisely this mitigating aspect that influenced the Special ED Court to allow the application for anticipatory bail. 

The court there exercised its discretion by observing that the evidence of the allegations regarding the grant of FIPB clearances and the receipt of bribes, were all documentary. The court hence concluded that since the entire evidence in relation to the allegations against the accused was documentary in nature and was already in the custody of the investigating authority “it was not liable to be tampered with by the accused.”

The order granting anticipatory bail to the accused in the Aircel-Maxis case is not final, as it may well be challenged and set aside by a superior court. However, the Supreme Court’s judgment in P Chidambaram, has attained finality and has become the newest entrant to the common law precedent repository on anticipatory bail. It is now law for a future day’s court to follow, albeit relatively less binding than Sibbia.

Why We Need the Judicial Discipline of Following Precedents

The departure from ‘Sibbia’ raises concerns not only for issues of personal liberty, but also for the judicial discipline of following precedent. 

The judgment in Sibbia underscores the wide discretion available with courts deciding cases of anticipatory bail.

No doubt the Supreme Court in P Chidambaram has addressed the issues involved at length to justify the manner in which it exercised its discretion. However, the principal findings on the basis of which the decision in P Chidambaram is rendered, is directly in conflict with the ruling in Sibbia.

The 1923 decision of the Calcutta High Court in Nagendra v King Emperor held that wrongful denial of bail results in punishment.

If indeed the ruling in ‘Sibbia’ has not been applied, would that amount to the wrongful denial of anticipatory bail?

Would that not forsake the accused’s presumption of innocence? Would the risk to personal liberty not result in premature punishment? Perhaps, it is time that the law be revisited in light of our constitutional principles, to set the balance to scale with personal liberty on the one hand, and police powers on the other.

(Aditya Chatterjee is a lawyer practicing in the Supreme Court of India and High Court of Delhi. He tweets at @adityachatjee. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)