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2001 DIGILAW 1017 (PNJ)

K. K. Jairath v. C. B. I.

2001-09-14

K.S.GAREWAL

body2001
Judgment K.S.Garewal, J. 1. Kanwal Kishore Jerath is seeking bail under the provisions of Section 439 Cr.P.C. in case RC 1(a)/98 ACU(II) dated January 9, 1998 registered with CBI under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 in respect of having disproportionate assets to the extent of Rs. 74.35 lacs. The petitioner was taken into custody on July 31, 2001. 2. The petitioner is already facing prosecution in six earlier cases which are FIR 1/98 dated February 3, 1998 (relating to receiving kickbacks from certain suppliers to the tune of Rs. 72.82 lacs), FIR 2/98 dated September 13, 1998 (in respect of the Medical College construction work), FIR 3/98 dated October 26, 1998 (also in respect of Medical College construction work), FIR 1/99 dated March 16, 1999 (in respect of furnishing inflated estimate in a particular contract), FIR 1/2000 dated March 15, 2000 (for causing loss to the government by misusing official vehicles) and FIR 2 of 2000 dated July 8, 2000 (also in respect of misusing official vehicles). 3. Originally the petitioner was taken into custody on November 27, 1998 and remained in custody continuously upto March 23, 2001 when he was released on bail on the basis of the orders of the Honble Supreme Court of India passed in SLP Nos. 390-393/2001 entitled as Kanwal Kishore Jerath v. Union Territory, Chandigarh on March 19, 2001 : 2000(1) RCR(Crl) 503 (P&H). The bail was granted in first four of the above-mentioned cases. 4. Subsequently, the petitioner was taken into custody on April 5, 2001 in the fifth case mentioned above leading to his filing a petition under Section 439 Cr.P.C. for bail, which was allowed on May 29, 2001. As regards the sixth cases, it has been stated that the petitioner has not so far been arrested. Therefore, the position is that the petitioner is on bail in five out of six cases mentioned above. The petitioner is now seeking bail in the present case which is the seventh case being faced by him though it was first to be registered. 5. The main ground raised by the counsel for the petitioner is that the allegation against the petitioner of holding assets disproportionate to his known sources of income is primarily based on the evidence collected in the first case against him relating to receiving commissions/kickbacks from various suppliers. 5. The main ground raised by the counsel for the petitioner is that the allegation against the petitioner of holding assets disproportionate to his known sources of income is primarily based on the evidence collected in the first case against him relating to receiving commissions/kickbacks from various suppliers. It is from the money received in the above manner that the various assets were created. Therefore, the argument is that both cases are based on evidence which is quite similar and the offence is also similar. As the petitioner has been admitted to bail in the kickback case by the Honble Supreme Court of India, he deserves to be released on bail in the present.(Case)Learned counsel has referred to the decision of the Honble Supreme Court of India in T.T. Antony v. State of Kerala, 2001(5) JT 440 : 2001(3) RCR(Crl) 436 (SC) wherein it has been held that no fresh investigation should take place with regard to the same offence or incident which had earlier been registered. 6. Learned counsel for the CBI has countered this argument on the basis of decision of the Supreme Court in K. Krishna v. State of Kerala 1999(3) SCC 247 wherein it has been clarified that in cases under the Prevention of Corruption Act a second FIR containing the same allegation against the same officer was not illegal when the first case was continuing separately. 7. Learned counsel for the CBI has serious objection to the release of the petitioner on bail on the ground that eight of the prosecution witnesses are such who would be vulnerable to pressure from the petitioner in case he is released on bail and their evidence is crucial to the success of the prosecution case. Some of these witnesses are common to the present case and the kickback case. The learned counsel has also submitted that the release of the petitioner may be deferred till the evidence of these eight witnesses has been recorded. The case is at the stage of framing of charge, which is scheduled for October 1, 2001. Thereafter the case will be listed for recording of prosecution evidence and the recording of evidence of these witnesses may still take a further period of two, three months. 8. The sole question to be considered is whether detention without bail is necessary on the ground that the witnesses may be won over by the accused. Thereafter the case will be listed for recording of prosecution evidence and the recording of evidence of these witnesses may still take a further period of two, three months. 8. The sole question to be considered is whether detention without bail is necessary on the ground that the witnesses may be won over by the accused. The evidence of the eight witnesses relates to property transactions where properties were sold by the witnesses and acquired by the petitioner. The sale deeds were registered at values much below the prices paid by the petitioner to the sellers. In the list of disproportionate assets the actual value of the properties has been included and not the rate at which the sale deeds were registered, therefore, there is a genuine reason for the CBI to fear that the witnesses may be influenced to reduce the consideration received by them leading to a reduction in the value of assets. 9. It will be important to note that the present case was the first to be registered. Six cases mentioned above were registered subsequently. In five of those cases, the petitioner is on bail. It seems a little strange that the case registered on January 9, 1998 has still not reached the stage of framing of the charge even though the petitioner has been in custody since November 27, 1998 and to expect him to continue in further custody until the main witnesses are recorded sounds a bit unfair. This is particularly so because in subsequent four cases the petitioner was admitted to bail by the Honble Supreme Court of India and in the fifth case he was admitted to bail by this court. The apprehension of the prosecution regarding the likelihood of the eight witnesses being won over may be real but the prosecution should have confidence not only in its witnesses by also in itself and in its capacity to safeguard the interest of the State and ensure that the witnesses depose at the trial without fear or monetary inducements. It may also be noted that the petitioner was dismissed from service on March 8, 1999. His bank accounts have been seized and in case the properties have not been seized, atleast there is a prohibition on their alienation. It may also be noted that the petitioner was dismissed from service on March 8, 1999. His bank accounts have been seized and in case the properties have not been seized, atleast there is a prohibition on their alienation. Therefore, it seems unlikely that the petitioner will be in a position to offer any kind of inducement or promise to the witnesses in order to win them over. 10. Under the circumstances, the petitioner is admitted to bail on furnishing personal bond in the sum of Rs. two lacs with two local solvent sureties in the like amount to the satisfaction of the trial court. The petitioner shall not attempt to approach any prosecution witnesses and shall not leave Union Territory of Chandigarh for a period longer than ten days without taking prior permission from the trial court. In case of violation of any of the above conditions, bail shall be liable to the cancelled. 11. Copy of the order be given decesition payment.