Court Can Peruse Sealed Cover Documents While Deciding Bail Cases, Says Supreme Court
Members of the media gather outside of the Supreme Court in New Delhi, India. (Photographer: Pankaj Nangia/Bloomberg)

Court Can Peruse Sealed Cover Documents While Deciding Bail Cases, Says Supreme Court

During former finance minister P Chidambaram’s anticipatory bail hearing in the Supreme Court, one of the most strongly contested arguments was whether the Enforcement Directorate could present certain documents related to the investigation in a sealed cover to the court. While the apex court did not take into account the sealed cover documents to deny Chidambaram bail but held that it can surely ‘peruse them to satisfy its conscience’.

Former Finance Minister P Chidambaram’s role is being investigated by the Enforcement Directorate for alleged irregularities in the Foreign Investment Promotion Board approvals granted to INX Media in 2007. Chidambaram had moved the Supreme Court after the Delhi High Court rejected his plea for protection from arrest by the Enforcement Directorate.

Sealed Cover: Key Arguments

Senior Advocate Kapil Sibal, who was appearing for Chidambaram, had argued that the ED cannot randomly produce documents ‘behind the back’ of the accused while it is seeking custody. Such a submission cannot be allowed as it takes away the right of the accused to respond to material sought to be used against him, he had said.

Sibal has also pointed out that the Delhi High Court—while hearing Chidambaram’s anticipatory bail plea—had taken on record a note which was submitted by the ED after the hearing in the case was over. Chidambaram was not confronted with any of the facts which were alleged in the note, Sibal had said.

“Handing over document or reports/proceedings for investigation in a sealed envelope is a concept alien to the statutory regime, as applicable in India,’’ said the affidavit filed by Chidambaram during the hearing.

Solicitor General Tushar Mehta had, however, argued that even in the past, the apex court has looked into case diaries and documents which were presented to it. He had said that since the investigation was ongoing, the intention of submitting the documents in a sealed cover was to satisfy the court that Chidambaram’s custody is needed for interrogation.

Mehta cited the example of arrest hearings in the Bhima Koregaon case to support his arguments. There, he had said, the court—while considering the plea seeking immediate release of the activist, had allowed submission of documents related to the case in a sealed cover.

Sealed Cover: The Supreme Court View

The bench consisting of Justice Banumathi and Justice AS Bopanna held that while hearing a bail plea, the court can look into documents collected during the investigation including those which have not been disclosed to the accused.

“It is seen from various judgments that on several instances, court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc.” - Supreme Court, P Chidambaram’s Case

The apex court pointed out that Section 172(2) of the Code of Criminal Procedure allows the court to examine the entries of the case diary which has to be mandatorily maintained by the police officer while investigating a case. The law, however, does not provide such a right to the accused as it may consist of “information which cannot be divulged to the accused,” the Supreme Court said.

And so it rejected the arguments presented by Chidambaram’s counsel to say that “it is clear that the denial of right to the accused to inspect the case diary cannot be characterised as unreasonable or arbitrary.’’

We have held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. In the present case, though sealed cover was received by this court, we have consciously refrained from opening the sealed cover and perusing the documents.
Supreme Court, P Chidambaram’s Case

Sealed Cover Jurisprudence

A number of high profile cases have seen submissions being made through sealed cover but as a matter of judicial policy it should be discouraged, Senior Advocate Sanjay Hegde said. He pointed out that when it comes to deciding bail cases, it is not a necessary condition for courts to look at the strength of the prosecution’s case by perusing documents collected during the evidence.

There are provisions available in law to claim privilege and share documents only with the court and not the other side involved in the matter and sealed cover submissions should be allowed only when such provisions of the Evidence Act are resorted to, Hegde said.

The provision of the Indian Evidence Act that Hegde is referring to states that a public officer cannot be compelled to disclose communication made to him in confidence if he believes that it will be against public interest to disclose the information. Only when a public officer uses this provision to claim privilege should the courts allow for documents to be submitted in a sealed cover, Hegde explained.

As far as the judgment in Chidambaram’s bail case is concerned, one cannot fault the judges who have chosen to blindly follow the past precedents, said Senior Advocate Chander Uday Singh. However, what is unfortunate is that the apex court has at all permitted this pernicious sealed cover procedure in past precedents, he said.

Handing over documents to the court in a sealed cover is anathema to jurisprudence and a gross violation of natural justice. It is fundamental that if you want the court to see something then you have to show it to the other side, and the only exception is where a claim of privilege is allowed by the court under Section 123 of the Evidence Act.
Chander Singh, Senior Advocate

Though the Supreme Court dismissed Chidambaram’s appeal, it also disagreed with the approach of the Delhi High Court in refusing anticipatory bail to him. It noted that the high court judge could have perused the note sought to be presented by the probe agency but quoting the note verbatim in the judgment should have been avoided.

“The learned Single Judge was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail.” - Supreme Court, P Chidambaram’s Case

But this doesn’t impact the correctness of the conclusion of denying anticipatory bail, the apex court added.

Chidambaram is currently in Tihar Jail after being arrested by the Central Bureau of Investigation which is also investigating the INX Media case.

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