Delhi High Court reserves order on Karti Chidambaram’s anticipatory bail

The case relates to the grant of approval for re-use of project visas by a Chinese company which was engaged in establishing a power plant in Punjab in 2011.

A trial court had dismissed Karti’s application last week.

The ED’s case is based on a CBI case which, too, was registered last month. According to the agencies, Rs 50 lakh was paid by Talwandi Sabo Power Ltd (TSPL) to secure approval for re-use of project visas issued for the employees of Chinese company Shandong Electric Power Construction Corp, which was assisting the Indian company in establishing a thermal power plant in Mansa.

It is alleged that TSPL had approached S Bhaskararaman, a close aide of Karti, the son of then Home Minister P Chidambaram, for the purpose.

The amount of Rs 50 lakh was paid by TSPL through Mumbai-based Bell Tools Limited Director Sushil Morarka, who died in 2018, according to the CBI.

Senior Advocate Kapil Sibal, representing Karti, earlier argued before the bench of Justice Poonam A. Bamba that there is nothing on record to show that the amount alleged to be paid by TSPL to Morarka was given to Bhaskararaman or Karti. There is no overt act attributed to Karti nor is there any allegation that he induced any public servant, said Sibal

Sibal contended that the agencies haven’t even named the then Home Secretary who had the power to grant the approval for re-use of Project Visas. They have only named the then Home Minister, he added. “Has the [then] Home Secretary said that this was granted on the basis of a bribe. Have they checked who the Home Secretary is? Did he reveal any bribe? The Home Secretary is currently a Cabinet Minister. They should have asked him,” added Sibal, without naming the minister, who he said “apparently” had granted the approval.

It was also argued that if the power project had got delayed, only the State would have suffered. Sibal further argued that the agencies had documents since 2017 but have woken up now. “In this particular case, there can be no proceeds of crime. If money has no rot reached me, how can I launder it? There is nothing to show that the money has ever reached me. First they have to show that the money has reached Bhaskararaman,” said Sibal.

Sibal added that the ED registered the ECIR merely 10 days after registration of the FIR by CBI. “Only after prima facie investigation, he could have been arrayed [as accused]. If they have investigated nothing, why shouldn’t I be protected? Is it their case that they wish to investigate and for that he should be taken into custody?,” asked Sibal.

Additional Solicitor General, SV Raju, representing the ED, submitted that the application for anticipatory bail is not maintainable as investigation has not yet started and the applicant has to first show reason for apprehending arrest. “There has to be genuine apprehension. That apprehension has to be objective. He cannot move for anticipatory bail on figment of imagination,” argued Raju.

Raju also argued that there are severe limitations on power of arrest under Section 19 of PMLA and merely on registration of an ECIR, a person cannot show apprehension of arrest. However, the counsel also termed Karti’s application at this stage a “smart move” to “scuttle investigation”, saying that tomorrow if it is found Rs 100 Cr is involved in the case, he would already stand protected if anticipatory bail is granted. The court was also told that only an ECIR has been registered by the ED and no summons have been issued to Karti.

“When ECIR is registered and the accused [soon] rushes to court, the material [evidence] is not going to be there. If the bail is granted, it would create a situation  where protection is granted only because the investigation agency could not collect material because of time factor,” argued Raju.

Sibal in rebuttal said that the officers under Section 19 PMLA to make an arrest only have to make an entry in the book that they have ‘reason to believe’ that a person is guilty of offence. “If his [ASG’s] argument is right, there can never be anticipatory bail. This is contrary to all principles of criminal jurisdiction,” added Sibal.