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Himachal Pradesh High Court · body

2004 DIGILAW 61 (HP)

NARINDER PAL SINGH CHAUHAN v. STATE OF H. P.

2004-03-31

M.R.VERMA

body2004
JUDGMENT M. R. Verma, J.: - Since all these applications for grant of anticipatory bail, preferred by the accused/petitioners (hereafter referred to as the accused persons) D.L Arora, Kabir Pal Rana and Narinder Pal Singh Chauhan in FIR No. 4 of 2003, dated 9.12.2003, under Sections 420, 120-B and Section 13(2) of the Prevention of Corruption Act, and by accused D.L. Arora in case FIR No. 5 of 2003, dated 2.12.2003, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, both registered at Police Station Vigilance, Mandi, involve similar questions of law and facts, therefore, are being disposed of by this common order. 2. Brief facts leading to the filing of these applications are that on the basis of a preliminary inquiry No. 3336-38, dated 21.7.2003, it was found that during the year 1998-99 accused D.L. Arora then XEN HPPWD, Dharampur Division, awarded tender work order of Rs.74,10,496/- in favour of R.L. Rana, Contractor for construction of Sidhpur-Mari Road via Saklana and also awarded tender work of Rs.5,38,673/- to Suresh Kumar, Sandhol-Changala-Bhoor Road. The tender work orders in favour of R.L. Rana were awarded without codal formalities regarding publication of notice, inviting of tenders etc., but to show tender formalities having been performed, forged tender forms and comparative statements were prepared. Another tender work for RD No. 7/930 to 8/0 was also awarded in favour of R.L. Rana for Rs.87,525/- without inviting tenders. The construction work of the work order awarded to Suresh Kumar, Contractor was supervised by the accused persons. Though there was deviation from the approved alignment made by the Contractor, the aforesaid accused persons verified the road construction as per the approved survey and a sum of Rs.4,11,410/- was thus paid to the Contractor. This wrong verification resulted in unlawful gain to the said Contractor in the sum of Rs.1,46,300/-. Thus, case FIR No. 4 of 2003 aforesaid was registered against accused Dharshan Lal, Kabir Pal Rana, N.P.S. Chauhan and Suresh Kumar, Contractor. On investigation it was found that accused D.L. Arora had awarded eight different orders for different RDs. for Rs.12,74,591/- in favour of Suresh Kumar, Contractor and a substantial amount against these work orders had been released, whereas work from RD No. 0/775 to RD No. 1/01, carried out by Suresh Kumar, was found to be contrary to the road alignment. On investigation it was found that accused D.L. Arora had awarded eight different orders for different RDs. for Rs.12,74,591/- in favour of Suresh Kumar, Contractor and a substantial amount against these work orders had been released, whereas work from RD No. 0/775 to RD No. 1/01, carried out by Suresh Kumar, was found to be contrary to the road alignment. The investigation so conducted revealed that accused D.R. Arora, Narinder Pal Singh and Kalbir Pal Rana had conspired with Suresh Kumar, Contractor who unlawfully deviated the approved alignment so as to take it through his house without any public interest and by use of official position and thereby resulting in wrongful gain to the tune of Rs.4,25,509/- to Suresh Kumar and wrongful loss to the State exchequer. 3. In case of award in favour of K. L. Rana, Contractor, FIR. No. 5/2003 aforesaid was registered and the investigation revealed that without observing the codal formalities, 21 tenders for Rs.35,794/were awarded in favour of K.L. Rana by accused D.L. Arora and bogus tenders were placed on record to justify the sum of Rs.53,19,572/-which has been found to have been released in favour of accused K.L. Arora. Supervision of the work was done by Kharaiti Lal Mattu, AE and Inderpal Singh on the basis of which the aforesaid amount was released. The investigation is still on and more facts are likely to be discovered as per the police report. 4. The accused persons in each case have filed the bail petition on the grounds that at the relevant time when the payments were made, they had already been transferred and that they have been roped in the case on some false/wrong information whereas they have no concerned with the alleged commission of the offence. 5. I have heard the leaned counsel for the accused person and the learned Deputy Advocate General for the respondent-State and have also gone through the police report and the investigation records. 6. It was contended by the learned counsel for the accused persons that as per the allegations against the accused persons, contractors Suresh Kumar and K.L. Rana are the main beneficiaries of the alleged crime. However, in their cases the State Government has specifically come forward with the plea that they are not to be arrested in these two cases. 6. It was contended by the learned counsel for the accused persons that as per the allegations against the accused persons, contractors Suresh Kumar and K.L. Rana are the main beneficiaries of the alleged crime. However, in their cases the State Government has specifically come forward with the plea that they are not to be arrested in these two cases. It is, therefore, implicit that there is no case made out and the allegations of the alleged conspiracy falls to the ground when the alleged main co-conspirators are not intended to be arrested by the State Government. To substantiate his allegations the learned counsel has placed on record a copy of order dated 24.12.2002 passed in Cr. M.P.(M) No. 1426/2003 by a learned Single Judge of this Court. 7. It was further contended that the applications filed by the State Government, under Section 482 of the Code of Criminal Procedure for re-calling/modifying the said order and a similar order passed on the bail application of K.L. Rana also stood dismissed by the learned Single Judge. It is, therefore, contended that the State Government cannot adopt two different standards in respect of different-conspirators and the other is hostile to the official-co-conspirators and parity between the accused persons in the case has to be maintained. 8. The learned Deputy Advocate General while referring to the material on record in support of prayer by the Investigations filed by the accused persons, has no possible and lawful counter submissions on the plea of parity based on the action of the State Government coming forward with the plea that the Contractors aforesaid are not to be arrested in these cases. In the police reports filed in these applications, the respondent has strongly opposed the prayers of the accused persons for grant of anticipatory bail to them and has averred that their custodial interrogation is necessary. i 9. A perusal of the police report and the records, prima facie, shows complicity of the accused persons in the commission of the offences with the co-conspirators Suresh Kumar and K.L. Rana in the respective cases. However, it is not in dispute that Suresh Kumar, Contractor, accused in FIR. No.4 of 2003 and Krishan Lal (K.L. Rana) accused in FIR. No. ,5 of 2003 supra, have moved anticipatory bail applications each and the application of Suresh Kumar (Cr. However, it is not in dispute that Suresh Kumar, Contractor, accused in FIR. No.4 of 2003 and Krishan Lal (K.L. Rana) accused in FIR. No. ,5 of 2003 supra, have moved anticipatory bail applications each and the application of Suresh Kumar (Cr. M.P.(M) No. 1426/2003) was disposed of by a learned Single Judge of this Court by making the following observations:- "Learned Additional Advocate General on instructions states that petitioner is not intended to be arrested in case FIR No. 4 of 2003 registered with Police Station, Vigilance, Mandi. The application being misconceived is dismissed." 10. Similar orders were admittedly passed on the application of K.L. Rana. 11. It is evident from the above that the State Government did not intend to arrest the Contractors involved in each case. Faced with such baffling situation, this Court called upon the respondent State to clarify its stand. On affidavit of Himachal Pradesh, the State Government came forward with the following explanation:- "That from the aforesaid police reports, it is quite apparent that the Investigating Agency had been consistently opposing the bail applications of all the accused persons and seeking their custody for interrogation, as the investigation is still in preliminary stages. The present situation seems to have been arisen due to some communication gap between the Investigating Officer and the office of the Advocate General. However, appropriate steps petitioners are the main accused and have caused huge wrongful loss to the State. Their custodial interrogation is necessary and for that reason their petition may be rejected." (Emphasis supplied) 12. The applications moved by the State in each case for recalling of the aforesaid orders much after the filing of the above reply affidavit on a ground other than the one pleaded in the above reply affidavit viz. the subsequent event had revealed involvement of the Contractors stood admittedly dismissed vide order dated 12.3.2004 passed by the learned Single Judge and, thus, the aforesaid orders on the application of the Contractors have become final. 13. As per the police reports the bail applications are opposed on the grounds that custodial interrogation in the case is required. It is also mentioned in the report filed, in case FIR No. 4 of 2003 that the investigation in the case is still at the initial stage and the Contractor Suresh Kumar, who is real brother-in-law of Mr. Mahinder Singh, Ex. It is also mentioned in the report filed, in case FIR No. 4 of 2003 that the investigation in the case is still at the initial stage and the Contractor Suresh Kumar, who is real brother-in-law of Mr. Mahinder Singh, Ex. PWD Minister, is an influential person and may intimidate the witnesses and the accused may affect the investigation adversely. I fail to understand if this was the position why the State Government, should have conceded that Suresh Kumar co-Contractor in case FIR No. 4 is not to be arrested in the case. Whatever may be the reasons for the State not to arrest Suresh Kumar and K.L. Rana its opposition to the present applications as in the police reports is rendered of no use and consequences because in the case of two sets of co-Contractors, if the main conspirator/accused is not to be arrested, then he opposition for release of other co-Contractor falls to the ground. The Court will have to maintain the balance by treating the equally placed persons alike. Thus, in view of the principle of parity, the present accused persons are entitled for anticipatory bail as prayed for by them. 14. It is not in dispute that (the evidence against the accused persons mainly consists of the records/documents which are no more in possession of the accused but have been taken in possession by the Investigating Agency. Thus, there is no likelihood of tampering with the prosecution evidence by the accused even if they are released on bail. This is now the only saving feature of the case. 15. It is nobodys case that if released on bail, the accused persons are likely to abscond with a view to evade the trial. 16. Thus, in the totality of the circumstances, particularly the stand of the State Government itself that the Contractors-co-Contractors/co-accused in the case are not to be arrested and which has become final because of its subsequent applications for aforesaid modification having been dismissed, each of the accused is entitled for grant of anticipatory bail. 17. As a result these applications are allowed and the interim bail order as passed in each application are made absolute. Dasti copy, as prayed for, on usual terms.