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2000 DIGILAW 1229 (PNJ)

Kanwal Kishore Jerath v. State (U. T. Chandigarh)

2000-10-10

S.S.NIJJAR

body2000
Judgment S.S.Nijjar, J. 1. This order will dispose of four petitions i.e. Crl. Misc. Nos. 215999-M, 21601-M, 21603-M and 21605-M of 2000. 2. Four FIRs have been registered against the petitioner, being FIR No. 1 of 1998 dated 3.2.1998, FIR No. 2 of 1998 dated 23.9.1998, FIR No. 3 of 1998 dated 26.10.1998 and FIR No. 1 of 1999 dated 16.3.1999. FIR No. 1 of 1998 has been registered under Sections 13(1)(b)(c)(d) and 2 of the Prevention of Corruption Act, 1988 read with Sections 406/409/420/120-B of the Indian Penal Code. FIR No. 2 of 1998 has been registered under Sections 13(1)(b)(c)(d) and 2 of the Prevention of Corruption Act, 1988 read with Sections 406/409/420/467/471/120-B IPC. FIR No. 3 of 1998 has been registered under Section 13(1)(b)(c)(d) and 2 of the Prevention of Corruption Act, 1988 read with Sections 420 and 120-B of the IPC. FIR No. 1 of 1999 has been registered under Sections 13(1)(c), and 2 and 15 of the Prevention of Corruption Act, 1988 read with Sections 409, 120-B and 511 of the Indian Penal Code. In all these proceedings, challans have been presented in the trial Court. In FIR No. 1 of 1998, challan has been presented on 4.2.1999. In FIR No. 2 of 1998, challan has been presented on 24.2.1999. In FIR No. 3 of 1998, challan has been presented on 27.12.1998 and in FIR No. 1 of 1999, challan has been presented on 6.9.1999. In all there are 59 persons who are to face the trial. 3. The house of the petitioner was raided by the Income Tax Department on 20.11.1997. According to the petitioner, the prosecutions have been launched against him at the instance of Smt. Anuradha Gupta who was at the relevant time, working as the Home Secretary, U.T., Chandigarh. The petitioner was made Secretary Engineering one day prior to Mrs. Anuradha Gupta took over as Home Secretary. Earlier the Home Secretary, exercised the powers of Secretary, Engineering. Smt. Anuradha Gupta is stated to have resented this loss of power as the Engineering Department is stated to have enjoyed the largest chunk of the budget of the Chandigarh Administration. According to the learned counsel for the petitioner, nothing incriminating was recovered either from the residence of the petitioner or from the places of his relatives which were also raided and searched. According to the learned counsel for the petitioner, nothing incriminating was recovered either from the residence of the petitioner or from the places of his relatives which were also raided and searched. However, FIR No. 1 of 1998 was registered against the petitioner and 38 other accused on 3.2.1998. 4. The petitioner applied for anticipatory bail on 9.2.1998 which was rejected by this Court on 23.2.1998. The petitioner moved the Supreme Court by way of SLP (Criminal) No. 876 of 1998. Interim anticipatory bail was granted. The Special Leave Petition was also dismissed on 27.3.1998. Thereafter, the petitioner made applications for bail in FIR Nos. 1, 2 and 3 of 1998. These were rejected by this Court by order dated 22.3.1999. On March 16, 1999, FIR No. 1 of 1999 was registered against the petitioner alongwith six other persons. This, according to the petitioner, was a mere repetition of the case which was covered by FIR No. 3 of 1998. The petitioner applied for quashing of FIR No. 1 of 1999 by way of petition under Section 482 Cr.P.C. This petition was disposed of on May 21, 1999 with a direction to the prosecution to amalgamate the challan of FIR No. 1 of 1999 to that of the others FIRs. Although the petitioner has been in custody, he was again arrested on 15.6.1999 in FIR No. 1 of 1999. The earlier applications for bail of the petitioner were dismissed with the observations that the same are dismissed at this stage. Therefore, the petitioner had again moved the applications for bail. In these applications, notices were issued to the Union Territory, Chandigarh. These applications for bail were dismissed order dated 26.10.1999. The petitioner challenged the aforesaid judgment by means of Special Leave Petition Nos. 3960-3963/1999. The Supreme Court passed the following order :- "We are not inclined to entertain these petitions taking into account the gravity of offence. The SLPs are dismissed. The petitioner may renew his prayer for bail after expiry of 6 months from today." 5. It is on the basis of the observations made above, that the petitioner has filed the present four petitions for bail. 6. Mr. Deepak Sibal, counsel appearing for the petitioner has virtually reiterated all the arguments which had been put forward on behalf of the petitioner in earlier proceedings. It is on the basis of the observations made above, that the petitioner has filed the present four petitions for bail. 6. Mr. Deepak Sibal, counsel appearing for the petitioner has virtually reiterated all the arguments which had been put forward on behalf of the petitioner in earlier proceedings. The learned counsel has also laid considerable stress on the mala fides of Smt. Anuradha Gupta. The petitioner was permitted to implead Smt. Anuradha Gupta as respondent so that she can file a reply to the allegations which were made against her. Detailed reply has been filed in Crl. M. 21599-M of 2000 and short affidavits have been filed in the other three petitions. 7. Mr. Deepak Sibal has submitted that the petitioner has been in custody since 27.11.1998 i.e. almost a period of two years. He has further submitted that the petitioner was kept in police remand for a period of 12 days, and thereafter, the petitioner has been in judicial custody. Therefore, there is no need for any further incarceration of the petitioner. He has laid considerable stress on the fact that the petitioner himself surrendered before the authorities after the dismissal of the SLPs of the petitioner with regard to anticipatory bail. Not only the petitioner surrendered himself, but he had also handed over his passport to the Regional Passport Officer to demonstrate his bona fide that he had no intention to flee from justice. He has also submitted that charge-sheet has not been filed till today. The cases are still pending at the stage of examination of the documents. The prosecution has cited 179 witnesses, whereas there are 58 accused persons who are to face the trial alongwith the petitioner. He reiterated that nothing incriminating was recovered from the petitioner. Furthermore, the entire case is based on documentary evidence. Therefore, the continued incarceration of the petitioner is not called for. He has also submitted that the co-accused of the petitioner have already been granted bail. He has relied upon the order passed by this Court in the case of Yash Pal Saggi in Crl. Misc. No. 1282-M of 1999 (Annexure P-2). He has submitted that the petitioner is entitled to be released on bail on the principle of parity. He has further submitted that the petitioner is no longer in a position to tamper with the evidence nor he is in a position to influence the witnesses. Misc. No. 1282-M of 1999 (Annexure P-2). He has submitted that the petitioner is entitled to be released on bail on the principle of parity. He has further submitted that the petitioner is no longer in a position to tamper with the evidence nor he is in a position to influence the witnesses. He was suspended from service on 24.11.1997 and subsequently dismissed on 8.3.1999. Thus the career of the petitioner has been virtually finished. His only purpose in life at the moment is to face the trial and hope to clear his name from the false allegations which have been made against him. He has further submitted that because of mala fides of Smt. Anuradha Gupta, the prosecution has been proceeding in a biased manner. There are a total of 59 accused. Out of the 58 co-accused, only seven have been suspended. 51 co-accused are still working on the same post. In fact, the so-called main co-conspirator Jagdish Mitter, Superintending Engineer has turned approver. He confessed to his crime on 29.10.1998. He was reinstated in service on 30.10.1998 after he obliged the prosecution by giving a false confessional statement on 29.10.1998. This co-accused has even attested all the documents which were filed alongwith the challans. The only purpose of the prosecution is to ruin the petitioner. All the co-accused are said to be on bail. 8. Mr. Deepak Sibal has readily admitted that the petitioner had committed a mistake by not surrendering to the authorities as soon as the case was registered against him. This resulted in the petitioner being declared a proclaimed offender. He has further submitted that the petitioner remained absent not because he wanted to flee from justice but in the hope of getting justice. He was hoping during that period that his representations to the higher authorities would be accepted and the matter with regard to investigation would be referred to the C.B.I. It was only when the matter was not referred to the C.B.I., the petitioner surrendered. Therefore, it is submitted that the mistake, if any made by the petitioner was bona fide. He was not absent with the intention to flee from justice. He was and is always ready and willing to face the trial. His only grievance was that the investigation should be done by the C.B.I., where Smt. Anuradha Gupta would not be in a position of power and influence. He was not absent with the intention to flee from justice. He was and is always ready and willing to face the trial. His only grievance was that the investigation should be done by the C.B.I., where Smt. Anuradha Gupta would not be in a position of power and influence. Commenting on the reply filed by Smt. Anuradha Gupta, the learned counsel for the petitioner was submitted that the affidavits are false to the knowledge of the deponent. He has submitted that she ought to be proceeded against for having filed false affidavits. He has submitted that in the affidavit, it is stated that all the requests for sending the matter to C.B.I. for investigation had been made after the dismissal of the applications for anticipatory bail. He has pointed out to one particular application which is dated 29.1.1998 which is prior to the registration of the FIRs. He has submitted that false averments have been made in the reply in order to oppose the applications for bail. He has also laid considerable stress on the fact that since it is going to be a marathon trial, the petitioner deserves to be released on bail. 9. On the other hand, Mr. R.S. Cheema, Sr. Advocate appearing on behalf of the respondents has submitted that the applications are not maintainable at all. The observations made by the Supreme Court cannot be taken to be a direction that the petitioner is to be released on bail after six months of the decision of the SLPs. He has further submitted that the conduct of the petitioner is such that he cannot be trusted to make himself available to stand trial. I have considered the submissions made by the learned counsel at length. 10. It is a matter of record that there is no change in circumstances after the dismissal of the applications for bail by this Court on 26.10.1999. All the submissions which have been made today by Mr. Deepak Sibal, had earlier been made before K.S. Kumaran, J. by Mr. H.S. Sibal, Sri Advocate. After considering the submissions, this Court came to the conclusion that the petitioner does not deserve to be released on bail. All the submissions which have been made today by Mr. Deepak Sibal, had earlier been made before K.S. Kumaran, J. by Mr. H.S. Sibal, Sri Advocate. After considering the submissions, this Court came to the conclusion that the petitioner does not deserve to be released on bail. With regard to the allegations of mala fides, it is to be noticed that the same had also been demonstrated earlier with equal amount of vehemence before this Court in the case of K.K. Jerath v. U.T. Chandigarh, 1998(3) RCR 536. All these allegations were considered by this Court. They were found to be unwarranted. This Court observed that it is very easy to level allegations because respondent No. 3 - Smt. Anuradha Gupta is the Home Secretary of the Chandigarh Administration. The allegations against the petitioner were verified by the Advisor also. Thus it was observed that the Investigating Agency should be given free hand to investigate the entire matter, which requires through scrutiny. It was also observed that there are reasonable chances that the petitioner, if released on bail, might try to tamper with the prosecution evidence directly or indirectly, creating further hurdles for the investigation. This Court went sofaras to say that if the petitioner and the co-accused are allowed to remain on bail, the investigation will become a ritual. 11. I have also independently considered the allegations levelled against Smt. Anuradha Gupta. A perusal of the same shows that these are very general in nature. The one reason set out for the alleged vendetta of Smt. Anuradha Gupta is the so-called professional rivalry. It is stated time and against that Smt. Anuradha Gupta was not happy with the powers of the Secretary, Engineering being handed over to a technocrat rather than a bureaucrat. Prima facie, it seems rather far-fetched that a Senior I.A.S. Officer would go to such lengths merely to hold on to some power which was not in existence at the time when she took over. Even according to the petitioner, the post of Secretary, Engineering was held by the petitioner at the time when the Home Secretary took over. Thus, it was not a case where power which was held by the Secretary earlier had been handed over to the petitioner on his taking over. Thus prima facie there does not seem much substance in the allegations of mala fides. Thus, it was not a case where power which was held by the Secretary earlier had been handed over to the petitioner on his taking over. Thus prima facie there does not seem much substance in the allegations of mala fides. In any case, it would be wholly premature to make any assessment of the factual situation as narrated by Mr. Deepak Sibal. With regard to the delay in the outcome of the trial, it has been brought to the notice of this Court by Mr. Cheema that proceedings in three out of the four cases have been stayed either at the instance of the petitioner himself or at the instance of the co-accused. The challans presented in the cases have been challenged by way of Criminal revision/criminal miscellaneous applications on the ground that the necessary documents have not been supplied. Hence, the further proceedings have been stayed. Therefore, it would not be possible to held that the prosecution is trying to delay the outcome of the trial with any oblique motive. With regard to the petitioner being a proclaimed offender prior to his surrender, Mr. Deepak Sibal has trial to justify the absence of the petitioner. He has stated that the petitioner was absent as he did not expect any justice in an investigation which was conducted at the instance of Smt. Anuradha Gupta. It may be noticed here that Smt. Anuradha Gupta had been transferred since May, 1999. Even then, there has been no change in the attitude of the prosecution. Had there been any substance in the allegations of mala fides, surely the attitude of the prosecution would have changed with the transfer of Smt. Anuradha Gupta. It is also to be noticed that although the petitioner is in custody, there seems to no impediment in his ability to secure proper representation of his case. The petitioner has been given all the legal rights which are available to the accused who are in custody pending trial. Merely because the co-accused have been released on bail would not justify the petitioner also being released on bail. The FIR was registered on 3.2.1998. The petitioner has applied for anticipatory bail on 9.2.1998. On 10.2.1998, he was granted interim anticipatory bail. However, the application for anticipatory bail was dismissed by this Court on 23.2.1998. The petitioner did not surrender. Merely because the co-accused have been released on bail would not justify the petitioner also being released on bail. The FIR was registered on 3.2.1998. The petitioner has applied for anticipatory bail on 9.2.1998. On 10.2.1998, he was granted interim anticipatory bail. However, the application for anticipatory bail was dismissed by this Court on 23.2.1998. The petitioner did not surrender. He moved the Supreme Court by way of SLP on March 2, 1998. On March 5, 1998, the Supreme Court granted interim anticipatory bail. The SLP was dismissed on 27.3.1998. The petitioner allegedly surrendered his passport to the Regional Passport Officer, Chandigarh through his son on 3.4.1998. He was declared as proclaimed offender on 28.5.1998. The petitioner surrendered before the trial Court only on 27.10.1998. It thus becomes apparent that the petitioner successfully evaded his arrest for a period of eight months. The offences are of a serious nature. The offence under Section 467 IPC carries a sentence of life imprisonment. The Court cannot be oblivious of the fact that these are offences allegedly committed by Head by Department who was entrusted with public funds to the tune of many crores of rupees. I also do not find much substance in the submission of Mr. Deepak Sibal to the effect that the petitioner would not be able to influence the witnesses simply because he has been dismissed from service. The petitioner was a very high ranking Officer. He no doubt enjoys connections in very influential places. Furthermore, from the allegations made in the reply filed by the respondents, it becomes abundantly clear that the petitioner has tried to win over the witnesses. The trial has been brought to a stand-still by the petitioner and the co-accused. This cannot be permitted to be used as a lever to claim that bail ought to be granted as the trial is going to take a long time. As noticed earlier, there is no change in circumstances, which would permit this Court to take a view different from the view which has been consistently taken by this Court and the Supreme Court in the earlier applications for bail. Mr. R.S. Cheema has also brought to the notice of this Court that the petitioner had been permitted to be temporarily released of bail in order to attend certain ceremonies by two orders passed by this Court. Mr. R.S. Cheema has also brought to the notice of this Court that the petitioner had been permitted to be temporarily released of bail in order to attend certain ceremonies by two orders passed by this Court. In one application, the petitioner had claimed that the Kirya cermony of the husband of the sister of the petitioner was scheduled to be held on 11.10.1999 at Nasik. The Court had granted permission. He was, however, ordered to be taken to Nasik in the custody of the police. The petitioner refused to take advantage of this order on the ground that he does not wish to be released in the custody of the police. Similarly, the petitioner had sought interim bail to attend the Shivratri festival at his residence on the evening of 14.2.1999 to 15.2.1999. Again this Court granted permission. Again the petitioner refused to take advantage of this order as he did not wish to be taken to attend the festival in the custody of the police. I am also not much impressed by the submissions of Mr. Deepak Sibal that the petitioner had surrendered his passport and, therefore, he is not likely to flee from justice. It is by now common knowledge that any person who wishes to flee can easily make arrangements by obtaining different sets of passport from different parts of the country. Keeping in view the past conduct of the petitioner and the gravity of the offences that have been committed, I am of the considered opinion that the petitioner cannot be granted bail. Dismissed. Petition dismissed.