Criminal Lawyer: In economic offences, being a class apart, an accused is not generally entitled for anticipatory bail; SC.

Supreme Court of India

Justice R Banumathi and Justice A S Bopanna

The SC {P. CHIDAMBARAM v. DIRECTORATE OF ENFORCEMENT} holds that grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. It was held that grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, it was held that it is not a fit case to grant anticipatory bail.

It was held that in a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. As held in case of Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. It was held that Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless.

It was held that in the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, it was held that, the investigating agency has to be given sufficient freedom in the process of investigation. 

In the present case the appeal was preferred against the dismissal of anticipatory bail in ED case by the High Court. The same was also denied by the SC.

In view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, it was held by the SC that the appellant cannot seek anticipatory bail after he is arrested. Accordingly, the appeal against refusal of anticipatory bail in CBI case was rendered infructuous, in view of arrest by CBI of the appellant, and as such dismissed being rendered infructuous by the SC.