CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 1 of 30

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 14.09.2026

Date of Decision: 23.09.2026

Uploaded on: 24.09.2026

# CNR No. DLHC010140592023

+ CRL.M.C. 2749/2023

CENTRAL BUREAU OF INVESTIGATION .....Petitioner

Through: Mr. Rajesh Kumar, SPP for CBI

versus

SANJAY PANDEY .....Respondent

Through: Ms. Aparajita R. Jha and Mr. Rahul

Kamerkar, Advs. (through VC).

# CNR No. DLHC010140702023

+ CRL.M.C. 2751/2023

CENTRAL BUREAU OF INVESTIGATION .....Petitioner

Through: Mr. Rajesh Kumar, SPP for CBI

versus

CHITRA RAMAKRISHNA .....Respondent

Through: Mr. Shivam Batra, Mr. Rony O. John,

Mr. Arshdeep Singh, Ms. Arpita, Mr.

Mohd Ibrahim, Advs.

CORAM:

HON'BLE MS. JUSTICE MADHU JAIN

JUDGMENT

MADHU JAIN, J.

1.The present petitions have been instituted by the Central Bureau of

Investigation [hereinafter referred to as ‘CBI’] under Section 482 of the Code

of Criminal Procedure, 1973 [hereinafter referred to as ‘CrPC’], read with

Article 227 of the Constitution of India. The involved challenge herein is to

two separate orders dated 21.12.2022 passed by the same learned Special

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 2 of 30

judge [PC Act] [CBI], Rouse Avenue District Courts, New Delhi, inRC No.

2212022E0030-CBI/EO-III/New Delhi.Videthe said orders, Sanjay Pandey,

the respondent inCRL.M.C. 2749/2023, and Chitra Ramakrishna, the

respondent inCRL.M.C. 2751/2023, were granted regular bail, respectively.

2.Both the petitions arise from the same FIR and concern the same

alleged transaction. They were, therefore, heard together and are being

decidedvidethis common judgment.

BACKGROUND

Factual history

3.The controversy in the present petitions relates to the recording and

examination of the telephone calls that were made from the premises of the

National Stock Exchange of India Limited [hereinafter referred to as ‘NSE’].

The prosecution case itself proceeds on the basis that a system for recording

certain telephone calls existed at NSE even before iSEC Services Private

Limited [hereinafter referred to as ‘iSEC’] was engaged. The present

proceedings, however, relate to the engagement of iSEC between 01.01.2009

and 13.02.2017 under work orders described as relating to a“Periodic Study

of Cyber Vulnerabilities”. According to the CBI, the work undertaken

pursuant to the said work orders included the unauthorised interception and

monitoring of telephone calls of certain NSE employees.

4.Sanjay Pandey, an officer of the Indian Police Service [hereinafter

referred to as ‘IPS’] who has since retired, had incorporated iSEC in 2001,

held 50 per cent of its shareholding and was one of its two directors. He

resigned as a director and transferred his shareholding to the members of his

family in the year 2006. The CBI herein alleges, that, even after cessation of

his formal association with the company, he continued to participate in and

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 3 of 30

exercise control over its day-to-day affairs, the very extent and the nature of

which Sanjay Pandey disputes.

5.Chitra Ramakrishna was, during the corresponding period, a senior

functionary of the NSE. She served as its Deputy Managing Director [D.MD]

until 2010, Joint Managing Director [J.MD] until 2013 and Managing

Director [MD] until December 2016. The period during which she occupied

these positions substantially overlaps with the period for which iSEC

remained engaged by NSE under the concerned work order.

6.In 2009, iSEC submitted an undated proposal to NSE under the

description“Periodic Study of Cyber Vulnerabilities”, which was initiated

within NSE by Mahesh Haldipur and was approved by Ravi Narain and Chitra

Ramakrishna. A work order dated 03.06.2009 was thereafter issued to iSEC

with the endorsement“kind attention to Sanjay Pandey”. The arrangement

was subsequently renewed from year to year. CBI alleges, that the work

actually undertaken by iSEC included activities that were not disclosed in the

proposal or the work orders. These activities as per CBI included unauthorised

interception, recording and examination of telephone calls of certain NSE

employees.

7.In relation to Chitra Ramakrishna, CBI alleges that she introduced

Sanjay Pandey to Ravi Varanasi, a senior official of NSE, and entrusted Ravi

Varanasi with the responsibility of coordinating the assignment and

processing the approval notes for its continuation. It is further alleged that the

employees and telephone extensions whose calls were to be examined were

identified under her directions and communicated to iSEC through the

concerned officials of NSE. CBI also relies upon material, suggesting, that

Ravi Varanasi periodically briefed her about the reports received from iSEC

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 4 of 30

and that after becoming MD, she approved the continuation of the

arrangement.

8.Insofar as Sanjay Pandey is concerned, the CBI relies upon electronic

communications and statements collected during the investigation to allege,

that he continued to be involved in the functioning of iSEC even after his

resignation as its director. According to CBI, he sought updates regarding the

volume of call data examined, the calls identified as suspicious and the work

performed by the personnel associated with the assignment. The procurement

and installation of recording equipment at the premises of NSE are also

alleged to have been undertaken by iSEC at his very instance.

9.CBI further alleges that the recorded data was copied at regular

intervals by employees of iSEC and taken to its office for examination.

Selected calls were allegedly listened to and transcribed, following which

reports identifying calls that were considered suspicious were supplied to

senior officials of NSE. Some of these reports are stated to have been

recovered from the possession of NSE officials and others from the office of

iSEC. The prosecution further alleges that neither permission from the

competent authority nor the consent of the concerned employees had been

obtained and that NSE paid approximately Rs. 4.54 crores to iSEC during the

relevant period.

10.The respondents deny having participated in any unauthorised

interception. Sanjay Pandey maintains that iSEC was supplied with pre-

recorded call data by NSE for analysis from the perspective of information

security and cyber vulnerability. Chitra Ramakrishna maintains that the

engagement was processed through the contractual and internal approval

mechanisms of NSE.

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 5 of 30

11.The arrangement with iSEC continued until 13.02.2017. The CBI

further alleges that, after the registration of a separate case concerning the

NSE co-location issue in 2018, certain recording systems and software used

during the relevant period were caused to be sent for scrap in 2019 by some

of the officials of NSE. This allegation subsequently formed part of the basis

on which Section 201 of the IPC was invoked in the charge-sheet.

Brief procedural chronology

PARTICULARS RESPONDENTS

SANJAY

PANDEY

CHITRA RAMAKRISHNA

DIRECTORATE OF ENFORCEMENT [ED]

Arrest 19.07.2022 14.07.2022

Status of Bail

[learned Special

judge]

04.08.2022

[Rejected]

29.08.2022 [Rejected]

Status of Bail [this

Court]

08.12.2022

[Granted]

09.02.2023 [Granted]

CENTRAL BUREAU OF INVESTIGATION [CBI]

Arrest 24.09.2022 27.09.2022

Status of Bail

[learned Special

judge]

21.12.2022

[Granted]

21.12.2022[Granted]

Procedural history

12.On 07.07.2022, acting upon a complaint received on the same date, CBI

registeredRC No. 2212022E0030against iSEC, the present respondents and

the other persons named therein. The FIR invoked Sections 120-B, 409 and

420 of the Indian Penal Code [hereinafter referred to as ‘IPC’], Sections 69B,

72 and 72A of the Information Technology Act, 2000 [hereinafter referred to

as ‘IT Act’], Sections 20, 21, 24 and 26 of the Indian Telegraph Act, 1885

[hereinafter referred to as ‘Tele Act’], Sections 3 and 6 of the Indian Wireless

Telegraphy Act, 1933 [hereinafter referred to as ‘WTA’] and Section 13(2)

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 6 of 30

read with Section 13(1)(d) of the Prevention of Corruption Act, 1988

[hereinafter referred to as ‘PC Act’].

13.On 11.07.2022, the Directorate of Enforcement [hereinafter referred to

as ‘ED’] registeredECIR No. ECIR/DLZO-I/28/2022on the basis of the

scheduled offences arising from the case registered by CBI. Chitra

Ramakrishna was arrested by ED in relation to its case proceedings on

14.07.2022 and Sanjay Pandey was subsequently arrested on 19.07.2022.

Their applications for bail in those very proceedings were rejected by the

learned Special judge on 29.08.2022 and 04.08.2022, respectively.

14.Sanjay Pandey was thereafter arrested by CBI in relation to its

registered case on 24.09.2022 and Chitra Ramakrishna subsequently, on

27.09.2022. Both of them moved separate applications for grant of regular

bail before the learned Special judge.

15.During the pendency of the aforesaid bail applications filed before the

learned Special judge seeking bail in the case registered by CBI, a coordinate

bench of this Court,videjudgment dated 08.12.2022 inBAIL APPLN.

2409/2022, granted regular bail to Sanjay Pandey with respect to the case

registered by ED. So, while considering the applications for grant of regular

bail to both the respondents in relation to the CBI’s case, the learned Special

judge referred to theprima facieobservations concerning the scheduled

offences made in the aforesaid judgment of this Court wherein only the

respondent Sanjay Pandey was granted regular bail, andvideseparate orders

dated 21.12.2022, granted regular bail to both the respondents in the present

petitions, subject to the conditions stipulated in the impugned orders.

16.On the following day, i.e. 22.12.2022, the CBI filedCharge-sheet No.

44/2022against iSEC, the present respondents and the other accused persons.

The charge-sheet alleged commission of offences under Section 120-B read

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 7 of 30

with Sections 409 and 201 of the IPC, Sections 24 and 25 of the Tele Act,

Sections 69B and 72A of the IT Act and Section 13(2) read with Sections

13(1)(c) and 13(1)(d) of the PC Act, together with the substantive offences

attributed to the respective accused.

17.Certain provisions invoked at the stage of registration of the FIR i.e.

Section 420 IPC, Sections 20, 21 and 26 of the Tele Act, Sections 3 and 6 of

the WTA and Section 72 of the IT Act were not carried into the chargesheet.

Section 201 of the IPC and Section 25 of the Tele Act were, however, added.

18.Chitra Ramakrishna was subsequently granted regular bail with respect

to the case registered by ED, by a coordinate bench of this Court on

09.02.2023. In the meantime, CBI instituted the present petitions challenging

the orders dated 21.12.2022 passed by the learned special judge wherein

regular bail was granted to the respondents in the present connected petitions.

Notice was issued in both the matters on 19.04.2023. In the meanwhile, the

special leave petitions [SLPS] preferred by ED against the judgments granting

regular bail to Sanjay Pandey and Chitra Ramakrishna in the connected ED

proceedings were subsequently dismissed by the Hon’ble Supreme Court on

08.05.2023 and 06.10.2023, respectively.

SUBMISSIONS ADVANCED

On behalf of CBI

19.Learned SPP appearing for the CBI submits that the present challenge

has two principal limbs. First, that the learned Special judge did not

independently assess CBI’s case and instead treated the bail judgment dated

08.12.2022 passed by a coordinate bench of this Court in the connected ED

proceeding against Sanjay Pandey as being determinative in nature. Secondly,

that the learned Special judge did not test the seriousness of the allegations

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 8 of 30

and the material collected by CBI during its investigation against the settled

parameters governing the grant of bail.

20.With respect to the first limb, it is submitted that the CBI proceeding

and the ED proceedings are legally distinct in nature. That CBI was not a party

to Sanjay Pandey's bail application in the ED case and that the report referred

to in paragraph 34 of the High Court's bail granting judgment had been filed

by the CBI in a separate quashing petition and was not a substitute for an

opportunity to place the its case in that particular bail proceeding. That the

prima facieassessment made in that judgment could not, therefore, be adopted

as a conclusion in CBI’s case.

21.Reliance is placed by the learned counsel appearing for CBI onManik

Bhattacharya v. Ramesh Malik, 2022 SCC OnLine SC 1465to submit that

an order or a judgment operating in a proceeding conducted by one

investigating agency cannot insulate an accused from lawful action in a

separate proceeding conducted by another investigating agency merely

because the two proceedings share a common factual foundation. That the

learned Special judge in the present case was required to examine CBI’s case

on its own merits and record rather than import an assessment made in the

proceedings connected with the ED’s case.

22.It is further submitted that the impugned orders in the present case

reproduce theprima facieconclusion arrived at in the PMLA bail judgment

dated 08.12.2022 which is that the ingredients of the scheduled offences were

not made out. So according to CBI, applying that conclusion to its own case

without an independent evaluation effectively prejudges the very offences

sought to be tried and is capable of seriously prejudicing the prosecution. That

the customary observation, that nothing in a bail order or judgment amounts

to an expression on the merits of the case does not cure an order which, in

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 9 of 30

substance, rests entirely on a conclusion that the prosecution’s case is not

made out.

23.With respect to the second limb, the learned SPP submits that the

present impugned orders do not at all engage with the substance of the

allegations that have been levelled by the CBI against the respondents in the

present case.

24.The learned SPP states that the chargesheet was filed on 22.12.2022,

one day after the impugned orders granting bail to the respondents in its very

own case were passed. The reason for submitting as above is, that the

chargesheet which now embodies the cumulation of the material CBI

collected during the investigation needs an independent assessment.

25.He expressly submits that, if the respondents satisfy the governing tests,

then bail may be granted to them but its grievance is that the decision must

follow a consideration of the allegations that have been levelled, the evidence

that has been collected during investigation and the applicable bail

parameters, rather than an adoption of aprima facieconclusion recorded in

another proceeding.

26.For this purpose, reliance is placed by the learned counsel onDeepak

Yadav v. State of U.P., (2022) 8 SCC 559. It is submitted that an order

granting bail may be set aside where relevant material has been ignored,

irrelevant considerations have governed the decision, or the discretion has

been exercised arbitrarily or perversely. The petitioners i.e. CBI accordingly

seek that the impugned orders dated 21.12.2022 be set aside and that the bail

applications decided, be remitted to the learned Special judge for fresh

consideration on the basis of the present material and record available.

27.At this stage, the learned counsel appearing for respondent Chitra

Ramakrishna submits that no cognizance has been taken since the filing of the

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 10 of 30

chargesheet and that nearly 4 years have elapsed since the same was filed. He

further submits that many of the provisions invoked in the FIR at the time this

case was registered have been dropped from the chargesheet.

28.In answer to the aforesaid submission, the learned SPP submits that

cognizance was not taken because the connected matters were pending at the

time. It is further submitted that this delay in taking of cognizance does not

validate the exercise of discretionary power by the learned Special judge in

the impugned orders and that likewise, alteration of penal provisions between

the FIR and the chargesheet is no ground to oppose the present petitions as

the remaining provisions must still be independently examined.

On behalf of respondent Sanjay Pandey

29.Learned counsel appearing on behalf of respondent Sanjay Pandey

submits that CBI has not met the threshold for interference with an order

granting regular bail. That the correctness of an order granting bail is tested

by asking whether the discretion was exercised improperly or arbitrarily and

whether the order is perverse, illegal or unjustified in nature. That cancellation

for subsequent misconduct stands on a different footing and ordinarily

requires supervening circumstances or breach of bail conditions. Reliance in

this regard is placed onDeepak Yadav v. State of U.P. [supra], which

reiterates the distinction explained inMahipal v. Rajesh Kumar, (2020) 2

SCC 118andNeeru Yadav v. State of U.P., (2014) 16 SCC 508.

30.It is submitted that the decision inManik Bhattacharya v. Ramesh

Malik [supra]does not govern the present case. That the aforesaid matter was

related to the effect of interim protection in relation to coercive action by a

different investigating agency and that the present case concerns regular bail

granted after the respondent had been in custody and the investigation had

substantially progressed. It is further submitted that the impugned order

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 11 of 30

neither restrains CBI from investigating nor grants the respondent an

immunity from CBI’s case. That it only determines whether continued

custody was warranted or not.

31.The learned counsel further submits that the learned Special judge was

entitled to consider the judgment dated 08.12.2022 as it arose from the same

FIR and examined the ingredients of the alleged scheduled offences, CBI's

report referred to in paragraph 34, the provisions of the IPC, the IT Act and

the PC Act and the nature of the NSE-iSEC arrangement and since bail under

Section 45 of the Prevention of Money Laundering Act, 2002 [hereinafter

referred to as ‘PMLA’] was granted after application of a more stringent

statutory test, the learned Special judge's reliance on that assessment was

rightful and relevant, and not a mechanical substitution of one proceeding for

another.

32.It is further submitted that the judgment dated 08.12.2022, whereby the

respondent Sanjay Pandey was granted bail in the proceedings under the

PMLA, was assailed by ED before the Supreme Court by way of a special

leave petition [SLP], which came to be dismissed on 08.05.2023. Learned

counsel submits that the refusal of the Supreme Court to interfere left the order

granting bail undisturbed. It is, however, acknowledged that the Supreme

Court clarified that the observations made for the purposes of deciding the

said bail application would have no bearing on the final view to be taken after

trial. Reliance upon the said order is, thereby, placed not as an adjudication

upon the guilt or innocence of the respondent, but as a circumstance

supporting the continuance of bail.

33.The learned counsel appearing for respondent Sanjay Pandey submits

that the challenge to the grant of bail must be examined in the light of the

offences and the specific role ultimately attributed to the respondent in the

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 12 of 30

charge-sheet, and not on the basis of the wider array of provisions initially

invoked in the FIR.

34.In relation to the factual allegations, it is submitted by the learned

counsel that iSEC was engaged under written contracts to analyse calls

recorded within NSE's system and to identify suspicious communications

bearing on insider trading and related vulnerabilities. It is further submitted

that respondent Sanjay Pandey had ceased to be a director of iSEC before the

relevant work orders and that he had relinquished the company upon returning

to public service. It is submitted that NSE had been recording calls long before

iSEC was engaged and that Rs 4.54 crores represented not an unlawful

pecuniary advantage, but a consideration given for services that were

rendered.

35.It is lastly submitted by the learned counsel that the case is founded

substantially on documentary material which has been collected by the

investigating agency, that neither has there been a breach of a bail condition

nor any subsequent attempt to influence the investigation has been shown and

that the bail granted to certain co-accused persons has not been challenged.

The petition is therefore said to disclose neither any perversity in the

impugned order nor any subsequent circumstance warranting cancellation and

is accordingly stated as liable to be dismissed.

On behalf of respondent Chitra Ramakrishna

36.Learned counsel appearing for Chitra Ramakrishna adopts the

threshold submission that an order granting bail cannot be displaced merely

because another view might be possible. It is submitted that CBI must show

that the order is illegal, perverse, unjustified or the product of an arbitrary

exercise of discretion. He submits that there is no allegation that the

respondent violated any condition of bail or misused the liberty granted to her.

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 13 of 30

37.It is submitted that the order in her i.e. respondent Chitra

Ramakrishna’s case cannot fairly be described as an unreasoned order. It is

submitted that the impugned order granting regular bail to his client records

CBI's specific objections that her alleged role differed from Sanjay Pandey's

role, that the CBI was not a party to the ED bail proceeding and that the CBI

report considered by the High Court had been filed in the quashing petition.

It is further submitted that the concerned impugned order also considered all

the objections of the CBI with respect to the factual matrix of the case and

that the bail was granted after the consideration of the aforesaid.

38.The learned counsel now further submits that the reliance on the

judgment granting bail to respondent Sanjay Pandey in the PMLA case was

legally relevant as the concerned coordinate bench of this Court had examined

the ingredients of the alleged predicate offences under the more stringent

standard set out in Section 45 of PMLA and that ED’s challenge to that

judgment was thereafter also dismissed by the Supreme Court.

39.It is accordingly submitted that the challenge to the grant of bail must

be examined in the light of the offences and the specific role ultimately

attributed to the respondent in the chargesheet, and not on the basis of the

wider array of provisions initially invoked in the FIR.

40.The learned counsel also invokes the proviso to Section 437(1) CrPC

stating that his client’s status as a woman is not being put forward as an

absolute entitlement to bail but as an express statutory circumstance which

the court is permitted to consider along with the length of the proceedings, the

completion of investigation and her conduct while on bail.

41.Lastly, it is submitted that the other co-accused persons, including a

senior NSE officeholder were granted bail, and the CBI did not challenge

every such order wherein they were granted such bail. The learned counsel

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 14 of 30

further contends that no principled basis has been shown for unsettling his

client’s bail while leaving that of the others’ undisturbed. He submits that

since the learned Special judge considered the rival positions and no

supervening circumstance that may have arisen since has been shown by CBI,

the concerned petition is liable to be dismissed.

ANALYSIS

42.This Court has heard the learned SPP appearing for CBI as well as the

learned counsels appearing for the respective respondents. The material

placed on record has also been perused by this Court.

43.Having considered the rival submissions, this Court considers it

imperative to state at the very outset that, it has not been called upon to

adjudicate the prosecution’s case or make findings concerning the guilt or

innocence of any party involved herein.

44.It is also made clear that this Court is neither examining the correctness

of the judgment dated 08.12.2022 pronounced by a Coordinate bench of this

Court nor sitting in appeal over anyprima facieobservation contained therein.

45.Videthe impugned orders, regular bail was granted to the respondents

herein. Although setting aside of the impugned orders wherein bail is granted

to an accused person, and cancelling bail of that accused person may produce

the same practical consequence, the two are however, governed by distinct

legal considerations. This Court therefore, deems it appropriate to first

delineate the distinction between setting aside an order granting bail, on

account of perversity, illegality or material irregularity, and cancelling bail on

account of subsequent conduct or supervening circumstances, so as to identify

the principles that would govern the present petitions.

46.The Supreme Court inNeeru Yadav v. State of U.P. [supra]elucidated

the distinction between cancellation of bail founded upon post-release

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 15 of 30

misconduct or supervening circumstances, and the setting aside of an order

granting bail that is itself unjustified, illegal or perverse. It was held that where

relevant considerations have been ignored, or the grant of bail is founded upon

irrelevant considerations, a superior court is competent to examine the

justifiability and soundness of the order.

47.The aforesaid distinction was reiterated inY v. State of Rajasthan,

(2022) 9 SCC 269, wherein the Apex Court while examining, whether the

discretionary power under Section 439 CrPC had been appropriately

exercised or not, clarified that an inquiry into the legality and propriety of the

original order granting bail stands on a footing distinct from cancellation

sought on the basis of circumstances arising subsequent to the grant of bail.

48.The distinction between the two categories was further explained in

Meena Devi v. State of U.P., (2022) 14 SCC 368wherein the Hon’ble

Supreme Court explained that while a challenge to the correctness of an order

granting bail requires an examination of whether the discretion was exercised

improperly or arbitrarily, an application seeking cancellation of bail ordinarily

proceeds on the basis of supervening circumstances or a violation of the

conditions of bail.

49.More recently, inAshok Dhankad v. State (NCT of Delhi), 2025 SCC

OnLine SC 1690the Apex Court after considering its earlier decisions

including the decisions inNeeru Yadav v. State of U.P. [supra], Y v. State of

Rajasthan [supra]andMeena Devi v. State of U.P [supra]consolidated the

principles governing a challenge to an order granting bail and distinguished

such a challenge from an application seeking cancellation of bail. The

principles were summarised as follows:

“19. The principles which emerge as a result of

the above discussion are as follows:

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 16 of 30

(i)An appeal against grant of bail cannot be

considered to be on the same footing as an

application for cancellation of bail;

(ii)The Court concerned must not venture into

a threadbare analysis of the evidence adduced

by prosecution. The merits of such evidence

must not be adjudicated at the stage of bail;

(iii)An order granting bail must reflect

application of mind and assessment of the

relevant factors for grant of bail that have been

elucidated by this Court. [See: Y v. State of

Rajasthan (Supra); Jaibunisha v. Meherban⁹ and

Bhagwan Singh v. Dilip Kumar @ Deepu¹⁰]

(iv)An appeal against grant of bail may be

entertained by a superior Court on grounds such

as perversity; illegality; inconsistency with law;

relevant factors not been taken into

consideration including gravity of the offence

and impact of the crime;

(v)However, the Court may not take the conduct

of an accused subsequent to the grant bail into

consideration while considering an appeal

against the grant of such bail. Such grounds

must be taken in an application for cancellation

of bail; and

(vi) An appeal against grant of bail must not be

allowed to be used as a retaliatory measure. Such

an appeal must be confined only to the grounds

discussed above.” [Emphasis supplied]

50.The legal position emerging from the aforesaid authorities is that a

challenge to the correctness of an order granting bail and an application

seeking cancellation of bail on account of subsequent events operate in

distinct fields. In the former, the superior court examines whether the

discretion exercised at the time of granting bail stands vitiated by perversity,

illegality, non-application of mind, consideration of irrelevant material or

omission to consider material and relevant circumstances. In the latter, the

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 17 of 30

inquiry ordinarily centres upon the subsequent conduct of the accused,

violation of the conditions of bail or the emergence of supervening

circumstances. Even while examining the correctness of an order granting

bail, the superior court cannot undertake a“threadbare”evaluation of the

evidence or substitute its own view merely because another view might also

be possible.

51.Applying the aforesaid, the present petitions fall within the former

category. CBI does not seek cancellation of bail on the ground of any

misconduct allegedly committed by the respondents after their release on

regular bailvidethe impugned orders or on the ground of violation of the

conditions imposed upon them or because of the emergence of any

supervening circumstance. Its challenge, is directed against the legality and

soundness of the original exercise of discretion by the learned Special judge.

The principal grievance of CBI is that the learned Special judge relied upon

theprima facieobservations made in the judgment dated 08.12.2022 in the

connected PMLA proceedings passed by a Coordinate bench of this Court

without independently examining the allegations levelled against the

respective respondents, the material collected during investigation and the

respective roles attributed to the respondents in the case registered by CBI.

52.This Court therefore, in the present petition is only required to conduct

a limited assessment of whether the impugned orders dated 21.12.2022vide

which regular bail was granted to the respondents in CBI’s case suffer from

any perversity, illegality, material defect or non-application of judicial mind

so as to warrant interference by this Court in exercise of its inherent

jurisdiction.

53.To conduct the aforesaid limited assessment, two questions have to be

considered by this Court. First, whether reference to and taking into

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 18 of 30

consideration of, the judgment dated 08.12.2022 passed by a Coordinate

bench of this Court in the PMLA proceedings with respect to respondent

Sanjay Pandey granting him regular bail therein, by the learned Special judge,

to grant regular bail to both the respondents herein, amounted to an abdication

of the jurisdiction vested in the learned Special judge. Second, whether any

material circumstance placed by the CBI before the learned Special judge was

left out of consideration so as to render the grant of bail perverse or unjustified

in nature.

First

54.The proceedings whenever conducted, in relation to the case of the CBI

and the ED, are undoubtedly distinct in nature. An order passed in one

proceeding neither binds the other investigating agency to the one with respect

to which the said order has been passed, nor does it confer immunity on an

accused person from lawful action that might be taken by the other

investigating agency under a different enactment. At the same time, where

both proceedings arise from the same FIR and the alleged scheduled offences

form a common factual foundation, a judicial assessment of those very

offences cannot be treated as being wholly irrelevant to being considered for

the purposes of grant of bail.

55.The PMLA judgment dated 08.12.2022 was not merely a judgment that

concerned an unrelated transaction. The aforesaid judgment examined the

very ingredients of the offences that formed ED’s case at the time i.e.

ingredients of offences punishable under Section 120-B read with Sections

409 and 420 IPC, Section 72 of the IT Act and Section 13(2) and 13(1)(d) of

the PC Act arising from the same alleged NSE-iSEC arrangement. The very

offences, ingredients of which were examined in the aforesaid judgment also

form a part of CBI’s case presently. Now even though, the findings were

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 19 of 30

prima facie in nature and did not bind the learned Special judge, the judgment

still constituted relevant material which the learned Special judge was entitled

to consider.

56.The entitlement of a Court to take note of such material flows from the

nature of the jurisdiction which is exercised while deciding an application for

bail. The judgment dated 08.12.2022 was rendered after examining whether

the material disclosed the ingredients of the scheduled offences which, as they

then stood in the FIR, also constituted the principal non-bailable offences in

CBI’s case. The assessment made therein was, therefore, not divorced from

the proceedings under the bail applications filed by the respondents herein

before the learned Special judge. It concerned the same FIR, the same NSE-

iSEC arrangement and the same alleged criminal activity. The fact that the

judgment was rendered in proceedings instituted by ED affected the weight

to be attached to it, but did not render it an irrelevant circumstance.

57.This position also finds support from the decision of the Hon’ble

Supreme Court inArvind Kejriwal v. CBI, 2024 SCC OnLine SC 2550

wherein, while considering the prayer for bail in the CBI case, the Hon’ble

Supreme Court expressly took note of the interim bail granted to the accused

in the connected ED matter arising from the same set of facts. Further, the

conditions imposed in the ED proceedings were made applicablemutatis

mutandisto the bail granted in the CBI case. The decision thus recognises that

a bail order passed in proceedings under the PMLA may constitute a relevant

circumstance in the connected CBI proceedings where both arise from the

same factual foundation or similar set of facts.

58.The relevance of an earlier order must, however, be distinguished from

its conclusiveness. InP. Chidambaram v. Directorate of Enforcement,

(2020) 13 SCC 791, the Hon’ble Supreme Court observed that the precedent

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 20 of 30

of another case cannot, by itself, form the basis for either granting or refusing

bail, though it may have a bearing on the consideration, which must ultimately

proceed on the facts of each case. Thus, the judgment dated 08.12.2022 could

be considered by the learned Special judge as one of the relevant

circumstances, but could neither bind the CBI nor substitute the requirement

of arriving at an independent satisfaction in the bail applications before the

concerned learned Special judge.

59.A similar qualification follows fromRamesh Bhavan Rathod v.

Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230. The Apex Court in this

case cautioned that parity cannot be applied mechanically and that the role

attributed to each accused, his or her position in relation to the incident and

the surrounding circumstances, must be examined. This qualification assumes

particular importance in the case of respondent Chitra Ramakrishna, who had

not been granted bail in the ED proceedings when the impugned order in her

case was passed. Nevertheless, the judgment dated 08.12.2022 was relevant

to her application to the limited extent that it examined the ingredients of the

offences forming the common foundation of both the proceedings. Her

individual role was however still required to be considered separately.

60.From the above discussion, it is clear, that the learned Special judge

was entitled to take the PMLA judgment dated 08.12.2022 into consideration

while deciding the applications for regular bail filed by the respondents in the

CBI’s case. Such reference did not, by itself, amount to an abdication of the

concerned Judge’s jurisdiction. The judgment, even though neither binding

nor determinative upon the learned Special judge when considering

applications for grant of bail, was a relevant circumstance. However, whether

the learned Special judge considered the remaining material placed by CBI

before her and independently exercised the discretion vested in her is a

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 21 of 30

separate issue, which shall now be examined and since the allegations against

the two respondents are not identical, even though arising from the same

factual foundation, the reasoning recorded in the two impugned orders shall

be examined separately for such assessment.

Second

Impugned order dated 21.12.2022 [Sanjay Pandey]

61.The relevant portion of the impugned order passed in respondent

Sanjay Pandey’s bail application is as follows:

“6. On the other hand,Ld. Sr. PP for CBI has

vehemently opposed the bail application and

submitted that accused cannot be allowed to take

benefit of aforementioned order of Hon’ble

High Court as the same was passed in a bail

application moved in a separate ED matter of

ECIR/DLZO-I/28/2022 and CBI was not even

party to said bail application and never got the

opportunity to put forward its case before

Hon’ble High Court regarding predicate

offences of the instant FIR. It is further

submitted that the report filed by the CBI which

finds mention in the para 34 of said order was

filed in a quashing petition filed by the accused

herein for quashing of instant FIR which is still

pending before the Hon’ble High Court.

7.I have given my thoughtful consideration to

the rival contentions, raised from both the sides

and also carefully gone through the entire

record.

8. It is pertinent to note here that aforementioned

ED matter i.e. ECIR/DLZO-I/28/2022 is based on

the premise that accused persons including the

applicant herein indulged in illegal interception

of MTNL lines at NSE during the period 2009-

2017, resulting into commission of various

offences under 120-B, 409, 420 of IPC, Section

72 of IT Act, Section 13(2) r/w 13(1)(d) of the PC

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 22 of 30

Act covered in the category of scheduled

offences/predicate offences under Prevention of

Money Laundering Act (PMLA) and same also

led to generation of proceeds of crime to the tune

of Rs. 4.54 crores given by NSE to applicant’s

company M/s iSec Services Pvt. Limited for the

aforementioned illegal activity, thereby making

them (accused) also liable for the offence of

money laundering punishable under Section 4 of

PMLA.

9. It is also important to note that for

consideration of bail in a case involving offence

of money laundering, the case has to withstand

the stringent conditions of Section 45 PMLA as

well as the triple test of 439 Cr.PC. As such,

when a bail plea is opposed by the prosecutor in

an ED case, the court needs to satisfy that the

accused is not guilty of the offence of money

laundering and will not commit any such crime

after his release on bail.”

“11. In the light of the aforementioned

observation made by the Hon’ble High Court

regarding lack of essential ingredient of the

predicate offences, this court is inclined to grant

bail to the accused/applicant even in the instant

case. Mere fact that CBI was not a party to bail

application of the applicant moved before the

Hon’ble High Court in said ED matter, cannot

be a ground to urge before this court to take a

different view with regard to the predicate

offences. Undoubtedly, the observations

contained in the aforementioned order are

reflective of only the prima facie view taken by

the Hon’ble High Court but, this court also at

this stage is required to only take a prima facie

view of the matter. Furthermore, the reply filed

by the CBI in the quashing petition pending

before the Hon’ble High Court was also taken

into account by the Hon’ble High Court before

passing the aforementioned order in favour of

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 23 of 30

the applicant.

12.Considering the fact that the Hon’ble High

Court has already granted bail to the

accused/applicant in the connected ED matter,

which in the light of Section 45 PMLA embodies

far more stringent conditions for grant of bail, I

find no reason to decline bail to the applicant in

the present case.As already noted above, all the

offences other than predicate offences of the

present FIR are bailable. In view thereof, accused

is granted bail…” [Emphasis supplied]

62.A bare reading of the aforesaid shows, that the learned Special judge

did not overlook the objections raised by CBI. That the objection that CBI

was not a party to the ED proceeding was expressly recorded. That the further

objection, that the CBI’s status report had been filed in the quashing

proceedings, and not in the PMLA bail application before the Coordinate

bench of this Court, was also noticed. It is also clear, that the learned Special

judge thereafter examined the factual connection between the two

proceedings that both arose from the alleged interception of telephone lines at

NSE during the period from 2009 to 2017. The alleged payment of ₹4.54

crores by NSE to iSEC and the offences which formed the basis of the ED

proceedings were also recorded. The reliance upon the judgment dated

08.12.2022 was, therefore, preceded by an identification of the common

factual and legal foundation of the two proceedings.

63.The learned Special judge was also conscious that the observations

made in the judgment dated 08.12.2022 were onlyprima faciein nature. The

impugned order did not treat those observations as an adjudication upon the

guilt or innocence of the respondent. It proceeded on the limited consideration

required at the stage of bail and expressly clarified that nothing stated in the

order would amount to an expression of opinion on the merits of the case.

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 24 of 30

64.A perusal of the impugned order clearly shows that it cannot be

characterised as one which was passed upon a mere mechanical adoption of

the judgment passed in the PMLA proceedings. The learned Special judge

considered the objection of CBI, the common factual foundation, the nature

of the alleged predicate offences, the additional rigours of Section 45 of the

PMLA and the fact that the remaining offences invoked in the FIR were

bailable. Conditions were also imposed to secure the presence and

cooperation of the respondent and to prevent any interference with the

investigation or prosecution witnesses.

Impugned order dated 21.12.2022 [Chitra Ramakrishna]

65.The case of respondent Chitra Ramakrishna requires separate

consideration. When the impugned order was passed, her bail application in

the ED proceedings had been heard by the coordinate bench of this Court and

was reserved for judgment. She had not, at that stage, been granted bail in the

ED case. CBI had also specifically contended that her role was different from

that of respondent Sanjay Pandey. The learned Special judge recorded and

considered the said objection in the following terms:

“9.On the other hand, Ld. Sr. PP for CBI

vehemently opposed the bail application by

submitting that the role attributed to

accused/applicant Chitra Ramakirshnan in the

instant FIR is entirely different from the role

attributed to co-accused Sanjay Pandey, who

was granted bail by the Hon’ble High Court vide

aforementioned order dated 08.12.2022. It is

further submitted that said order was passed on

the bail application moved in a separate ED

matterECIR/DLZO-I/28/2022and CBI was not

even party to said bail application and never got

the opportunity to put forward its case before

Hon’ble High Court regarding predicate

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 25 of 30

offences of instant FIR. It is further submitted

that the report filed by the CBI which finds

mention in para 34 of said order, was filed in a

quashing petition and not in the bail application

and said quashing petition filed by co-accused

Sanjay Pandey for quashing of instant FIR is

still pending before the Hon’ble High Court.

10.I have given my thoughtful consideration to

the rival contentions raised from both the sides

and also carefully gone through the entire

record.

14. As per instant FIR, top officials of NSE

including the applicant herein conspired with

M/s iSec to cheat the NSE and its employees and

in furtherance of this criminal conspiracy iSec

was hired for illegal interception of the phone

calls of NSE employees. For said purpose, iSec

was issued Agreement/work orders in the guise of

Periodic Study of Cyber Vulnerabilities of NSE

and same was done in contravention of the

provisions of Telegraph Act as no permission was

taken from competent authority as per provisions

of Telegraph Act. Transcripts of these calls were

provided by M/s iSec and received by the officials

of NSE at the top level, which resulted in breach

of confidentiality and privacy of the employees of

NSE and caused wrongful gain of Rs. 4.54 crores

to iSec as payment for this task and

corresponding wrongful loss to NSE.

15. As per the allegations, the applicant was

directly connected with the illegal recording of

telephone calls of NSE employees because the

approvals for giving contract of Periodic Study

of Cyber Vulnerabilities under the guise of

which illegal tapping of phone calls of NSE

Employees was done, was processed/granted by

the applicant/accused in her capacity as Deputy

Managing Director/Joint Managing

Director/Managing Director of NSE during the

period of offence between 2009-2017.

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 26 of 30

16. However, in the light of the aforementioned

observation made by the Hon’ble High Court

regarding lack of essential ingredient of the

predicate offences, this court is inclined to grant

bail to the accused/applicant in the instant case.

Mere fact that CBI was not a party to bail

application of the co-accused moved before the

Hon’ble High Court in said ED matter, cannot

be a ground to urge before this court to take a

different view with regard to alleged predicate

offences. Undoubtedly, the observations

contained in the aforementioned order are

reflective of only the prima facie view taken by

the Hon’ble High Court but, this court also at

this stage is required to only take a prima facie

view of the matter for consideration of bail

application of the accused. Furthermore, the

reply filed by the CBI in the quashing petition

pending before the Hon’ble High Court was also

taken into account by the Hon’ble High Court

before passing the aforementioned order.

17. Considering the fact that the Hon’ble High

Court has already granted bail to the co-accused

Sanjay Pandey in the connected ED matter,

which in the light of Section 45 PMLA embodies

far more stringent conditions for grant of bail, I

find no reason to decline bail to the applicant in

the present case.As already noted above, all the

offences other than predicate offences of the

present FIR are bailable. In view thereof, accused

is granted bail…” [Emphasis supplied]

66.The aforesaid extracts are an answer to the contention that whether

respondent Chitra Ramakrishna was granted bail solely on the basis of parity

with respondent Sanjay Pandey in the ED’s case or not. The learned Special

judge expressly recorded CBI’s objection that her role was different from that

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 27 of 30

of respondent Sanjay Pandey and the order thereafter sets out the substance

of the allegations against her.

67.In particular, the learned Special judge noticed that the work orders

issued to iSEC were allegedly processed or approved by respondent Chitra

Ramakrishna while she was holding different senior positions at NSE between

2009 and 2017. The allegation that transcripts of the recorded calls were

received by senior officials of NSE and that the arrangement caused a

wrongful gain of ₹4.54 crores to iSEC and a corresponding wrongful loss to

NSE was also recorded. Therefore, the factual role attributed to her was not

omitted from consideration.

68.The learned Special judge did not proceed on the basis that the

respective acts attributed to the two respondents were identical. The reliance

placed upon the judgment dated 08.12.2022 was directed towards the

common ingredients of the alleged predicate offences. The individual role of

an accused and the essential ingredients of an offence are distinct

considerations. Even where the acts attributed to two accused persons are

different, aprima faciejudicial assessment concerning the absence of an

essential ingredient of the common offence may still remain relevant to both.

The learned Special judge also clarified that the observations made in the

concerned judgment wereprima facieand that the consideration before her

was similarly confined to the grant of bail.

69.Therefore, the impugned orders passed in both of their cases, cannot be

read as having been passed without taking into account CBI’s objections or

the alleged factual role attributed respectively to both of them.

FINDINGS

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 28 of 30

70.The learned Special judge was not required, while deciding the

applications for bail, to undertake a detailed evaluation of every document or

record findings upon each ingredient of the alleged offences. Such an exercise

would have travelled beyond the limited consideration permissible at the stage

of bail and could have prejudiced the trial. What was required was an

application of mind to the material circumstances bearing upon the continued

custody of the respondents which is clear from the analysis taken above, was

the case in both the impugned orders.

71.The submission advanced by the learned SPP appearing for CBI that

the chargesheet filed one day after the impugned orders were passed now

warrants an independent assessment cannot be sustained. The legality of the

exercise of discretion on 21.12.2022 must be examined with reference to the

material and the prosecution’s case placed before the learned Special judge

on that date. The subsequent filing of the charge-sheet, including the alteration

or addition of penal provisions, cannot retrospectively render the impugned

orders perverse. The consequences of any offence subsequently added in the

charge-sheet are matters to be dealt with by the competent court in accordance

with law at the appropriate stage.

72.The decision inManik Bhattacharya v. Ramesh Malik, 2022 SCC

OnLine SC 1465also does not carry the matter further for CBI. That decision

arose from protective directions operating in relation to action by a particular

investigating agency and does not render an order passed in one proceeding

binding upon another agency. The respondents do not claim immunity from

investigation or lawful action by CBI. The limited question here was whether

the learned Special judge independently applied the governing parameters

while considering their applications for bail in the CBI case.

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 29 of 30

73.The objections now urged by CBI, that the CBI and ED proceedings

are distinct, that CBI was not a party to the bail proceedings arising from the

PMLA case, and that its status report had been filed in the connected quashing

proceedings, are not being raised for the first time. The same objections were

specifically advanced before the learned Special judge and stand recorded in

the impugned orders. CBI has not identified any material circumstance, which

placed before the learned Special judge, was omitted from consideration, nor

has it demonstrated that the discretion exercised was vitiated by perversity,

illegality or reliance upon an irrelevant consideration. A mere reiteration of

the same objections in the present proceedings, without establishing any

legally sustainable ground for interference with the grant of bail, cannot

justify substitution of this Court’s discretion for that exercised by the learned

Special judge. The objections are, accordingly, devoid of merit and are liable

to be rejected.

CONCLUSION

74.In view of the discussion above, this Court finds no ground that would

warrant an interference by this Court in exercise of its inherent jurisdiction

with the impugned orders dated 21.12.2022 passed by the learned Special

judge [PC Act] [CBI], Rouse Avenue District Courts, New Delhi, inRC No.

2212022E0030-CBI/EO-III/New Delhi.

75.Accordingly, the present petitions are dismissed and thereby, disposed

of.

76.Pending application[s], if any, also stand[s] disposed of.

77.Interim order[s], if any, also stand[s] vacated.

78.It is clarified that the observations made in this judgment are confined

to the adjudication of the present petitions. That the learned Trial Court shall

proceed with the matter, uninfluenced by anyprima facieobservation

CRL.M.C. 2749/2023 & CRL.M.C. 2749/2023 Page 30 of 30

contained in the impugned orders dated 21.12.2022, in the judgment dated

08.12.2022 and in the present judgment.

79.A copy of this judgment be sent to the concerned learned Trial Court

for necessary information, action and compliance.

80.This judgment be uploaded on the websiteforthwith.

MADHU JAIN

[JUDGE]

SEPTEMBER 23, 2026/PG