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2002 DIGILAW 102 (JK)

Nazir Ahmad Pandit v. State

2002-04-11

MUZAFFAR JAN

body2002
1. These petitions have been filed praying for grant of anticipatory bail in F.I.R No. 4/2002 registered in Police Station, Vigilance Organisation Kashmir, Srinagar. 2. Since the ground, submission and prayer in all the petitions are similar and the respondents have adopted the same stand for cancellation of anticipatory bail as objections to all the applications, therefore all the applications will be governed by this common order. 3. The record reveals that Government of India evolved a scheme, to waive off individual loans upto the tune of Rs. 50,000/- drawn by pity trader from bank upto 30.6.1996. In order to protect the interest of the banks, the Government of India decided to compensate the banks by reimbursement of the loan amount. In pursuance of this scheme, it is alleged that officers/officials of the Central Cooperative Bank operating in the districts of Anantnag and Pulwama in 25 branches of the bank prepared highly inflated bills of Rs. 11,69.67 crores in pursuance of which the Central Government released an amount of Rs. 10,85.82 crores. It is alleged that the officers/ officials of these banks, prepared not only highly inflated claims, but projected that the loans have been drawn by the persons who were non-existing in order to cause wrongful loss to the government and wrongful gaint to the said officers. It is also alleged that lacs of rupees were shown adjusted under Agriculture Sector, which sector, as per the scheme, was not eligible for the said benefit. On these irregularities FIR Under No. 4 of 2002 was filed with Vigilance Organisation Kashmir, in which Gulam Mustafa Wani, Farooq Ahmed Khan (General Managers of Central Co-operative Bank Anantnag) Gulam Hassan Lone, Mohammad Yousuf Zargar, Mohammad Abdullah Rather Gulam Nabi Darzi and Nazir Ahmed Pandit were named as main accused instrumental in preperation/adjustment of ineligible non-existing borrowers for securing illegal benefits, to the extent of Rs. 10,85.82 crores. 4. In the petitions seeking anticipatory bail, it is submitted that the petitioners are innocent; they have not committed any offence; their names are not mentioned in the FIR; they were not incharge of any record or disbursement of the money and as such they may be saved from harrasment and arrest by the Vigilance Organisation in the said FIR. 5. Heard learned counsel for the parties at length. 5. Heard learned counsel for the parties at length. Learned counsel for the petitioners has submitted that the petitioner have not committed any mis-appropriation or embezzlement of the Goverment money; the entire money is lying safe with the respondents; the petitioners are co-operating, by being actually present with the Investigating agency for any recovery or evidence. The petitioners are respectable law abiding, senior citizens of the state and there is no apprehension of their absconding or keeping away from the Investigating Agency. On these grounds, it is submitted that the petitioners be admitted to bail in anticipation of their arrest. 6. On the other hand, the stand and submission of learned counsel for the respondents is that the petitioner as officer officials of the Central co-operative Bank at Anantnag and Pulwama, prepared ficticious claims in order to swindle the Government of an amount of Rs. 10,85.82 crores. The huge public money was drawn either by showing names of ficticious loanees or by misues and abuse of their official positions by adjusting the amount under Agriculture sector, when the petitioner knew that the loan drawn under Agriculture sector was not eligible for adjustment under the debit relief scheme. Besides the involvement of person named in the FIR the direct involvement of the petitioner is also made out FIR is meant to start the investigation process the plea taken by petitoners that they are not named in the FIR so they are not involved in any allegations, is not legally sustainable because their active involvement is made out. The petitioners have concealed the officials record which is evidence in the present offences, and in order to recover the said record from the custody of the petitioners, their custodial investigation and physical present before the Investigating Agency is fully justified under law. 7. On the facts and circumstances under law. Consideration of the record and submission of the learned counsel for the parties, the facts which are not denied but are admitted are that a scheme was evolved by the Central Government to provide relief to pity traders to waive off their loan to the extent of Rs. 50,000/- by compensating the banks from whom the petty traders had taken loan. It is also admitted that the petitioner are officials/ officers of the Central co-operative Bank in the District of Anantnag and Pulwama. The prosecution case simply put is that Rs. 50,000/- by compensating the banks from whom the petty traders had taken loan. It is also admitted that the petitioner are officials/ officers of the Central co-operative Bank in the District of Anantnag and Pulwama. The prosecution case simply put is that Rs. 10,85.82 crores of the funds of Central Government which were to be distributed under the debt relief scheme, have been misappropriated and in this regard FIR No. 4/2002 has been filed in Vigilance Organisation Kashmir, Srinagar. 8. The law regarding the grant of bail in anticipation of arrest where the allegations of mis-appropriation of huge amount of state is involved, is settled by Apex Court in number of judgment. The concept behind the exercise of jurisdiction has been projected by the Apex Court in judgment report in 2000 (5) SCC 88 at para 8 which is reproduced as under:- Corruption in a civilized society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading ot disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence- shaking of the socio- economic political system in an otherwise healthy, wealthy, effective and vibrating society.� 9. While dealing with a case in which an amount of 37 crores was involved in FERA violation, the Apex Court, while refusing the request for grant of bail in anticipation of arrest, has observed that grant of pre-arrest bail is improper. This view is reported in AIR 1998 SC 696 at para 11, which is reproduced as under:- We have no doubt that the Division Bench of the High Court has gone ostensibly wrong in passing the impugned order. This view is reported in AIR 1998 SC 696 at para 11, which is reproduced as under:- We have no doubt that the Division Bench of the High Court has gone ostensibly wrong in passing the impugned order. When we perused the files concerning the allegations against the respondent (which the Directorate had made available to us) we strongly feel that any further loss of time would further impair the effectiveness of the inquiry and investigation into those allegations. Considering the nature and seriousness of the allegation as well as largeness of the amount involved we have no doubt that the order granted by the city session Judge should not remain alive. We are, therefore, constrained to stretch the arms of the residual powers of this court to deal with the said order also.� 10. In the instant case, the main thrust of the objections as projected by the respondents, to the grant of bail in anticipation, is that the presence of the petitioners is required for custodial interrogation and recovery of record which has been concealed and suppressed by the petitioners and is essential evidence for the prosecution. 11. While considering the requirement of custodial interrogation in a similar petition, the Supreme Court has taken the view that custodial interrogation would be more appropriate for effective investigation of the case of tax evaders as reported in AIR 1998 SC 1934 at para 5 which is reproduced as under:- We do not wish to enter in to any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the constitution and sections 486 of the code of Criminal Procedure and their inter-relationship. We may only State in considering a petition for grant of bail necessarily if public interest requires detention of citizen in custody for purpose of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. This very aspect has been borne in mind by the High Court. We may only State in considering a petition for grant of bail necessarily if public interest requires detention of citizen in custody for purpose of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceeding. The special leave petition is, therefore dismissed.� 12. The submission of learned counsel for the petitioners that petitioners are highly placed, respectable and honourable citizens of the society and as such are entitled to bail, has also been considered by the Apex Court in one of the case reported in 1997 (7) SCC 18, which the Apex Court has held that while exercising discretion, the right of the highly placed citizens of the society and the Investigating Agency have to be balanced in order to ensure that no failure of justice is cause by non- consideration of these factors. The view taken by the Apex Court is reflected as under:- Criminal Procedure Code, 1973 . 438 Anticipatory bail when would not be granted to bail applicants holding high position and or wielding considerable influence Factors to be considered in exercise of discretion by court Advantage in custodial interrogation of eliciting more useful information and material should be kept in view- Court has to presume that police officers would conduct the custodial interrogation in a responsible manner without using three degree methods court™s approach in dealing with application for anticipatory bail under S 438 should not be the same as that in dealing with regular post arrest bail applications On facts held, high court erred in ignoring the apprehension expressed by CBI that considering the high office held by the applicant and wide influence he could wield, CBI would be subjected to great handicap in interrogating him in case of grant of pre-arrest bail to him.� 13. Considering the seriousness of the allegations and the indictment of the petitioner in allegations of mis-appropriation of Rs 10,85.82 crores of public money and the submission of the respondents that progress of the investigation has been hampered because of non-cooperation of most of the petitioners and suppression of the relevant record, the present petitions do not deserve to be permitted at this stage. The custodial interrogation has not only been permitted but held necessary by the Apex Court where the facts and cirucmstances justify, as held in 2001 (4) SCC 638. This is one of the cases where custodial presence of all petitioners is required to investigate allegation of mis-appropriation of Rs 10,85.82 crores of public money, as such the over all interest of the society overweights the individuals interest of the petitioners. The petitions to admit the petitioners for bail in anticipation of their arrest are rejected. The petitioner are accordingly dismissed.