After CBI charge sheet, questions on need for arrest in cases turning on documentary proof

The CBI charge sheet against former Union Minister P. Chidambaram, his son Karti P. Chidambaram, and others does not contain any new material to add to the narrative of its 2017 FIR in the INX Media foreign investment case. If there is anything new, it is the claim that the probe is continuing, through letters rogatory sent to some countries, to ascertain whether payments worth ₹3.20 crore were received by the accused. This means that apart from a payment of ₹9.96 lakh by cheque to a consultancy firm, there is no evidence of anything amounting to a bribe having been paid. The basic charge is that Mr. Karti Chidambaram used his influence to get officials of the FIPB to ignore excess overseas investments received by INX Media (P) Ltd., and grant post facto approval for a downstream investment made by this company in INX News (P) Ltd. And that this was done for a paid consideration of about ₹10 lakh; that he made a further demand of $1 million; and that INX Media received invoices raised in the name of companies allegedly controlled by Mr. Karti Chidambaram for services that were not rendered. Mr. P. Chidambaram’s role is sought to be proved through the statement of Indrani Mukerjea, who was an INX Media director, and is undergoing trial for the alleged murder of her daughter. Now an approver, she has implicated Mr. P. Chidambaram by claiming to have met him for sorting out issues raised by the FIPB and that he had asked her for some quid pro quo. However, it is clear that her ex-husband and co-accused in the murder case, Peter Mukerjea, has not corroborated her statement, leading the CBI to complain that he was not ‘cooperating’ with the probe. Further, the CBI alleges that Mr. Chidambaram had not acted on complaints that INX Media had received overseas investments worth ₹403 crore, whereas its approval was for just ₹4.62 crore. In law, this assertion does not, in any way, lend weight to, or substantiate, the bribery allegation.

The final report also throws light on the alleged role of officials in enabling apparent irregularities. The officials charge-sheeted may have a case to answer on questions such as why they allowed the company to receive investment at premium value of the shares issued to foreign investors instead of their face value, although it is unlikely that such questions impinging on policy can lead to credible prosecution unless a quid pro quo can be proved. As all this ultimately turns on documentary evidence and legal questions on whether the FIPB’s handling was in line with extant policy, a question arises about the need for Mr. P. Chidambaram’s arrest and prolonged incarceration. There are serious doubts whether an offence has been established for the Enforcement Directorate to launch a money-laundering probe into “proceeds of crime’’, considering that the ED itself has stated in a provisional attachment order, dated October 10, 2018, against Mr. Karti Chidambaram that ‘’the company [INX Media] has clarified from the records that the payments [of ₹3.5 crore] have not been made against these invoices’’ allegedly raised by the accused. The ED recently arrested Mr. Chidambaram for custodial interrogation, extending deprivation of his liberty even further. It needs to answer why he was not questioned in the time he has spent in CBI and judicial custody. Apart from proving its case on merits, the CBI and the ED are duty-bound to show that they use arrest as an aid to investigation — and not as a punitive measure before the trial stage to please political masters.