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2014 DIGILAW 474 (CHH)

Narsingh Rathore v. State of Chhattisgarh

2014-12-22

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this court under Section 439 of Cr.P.C., the applicant herein has filed this application for grant of regular bail who has been arrested on 26.11.2014 in connection with Crime No. 48/2010 registered at Police Station, Anti Corruption Bureau, Raipur (for Short, ACB) District Raipur, for the offence punishable under Section 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 (for short, PC Act). Case of prosecution, in brief, is that, applicant had amassed wealth of Rs.61,89,882/- disproportionate to his known source of income, while working as Executive Engineer and thereby he has committed aforesaid offences. 2. Shri Kanak Tiwari, learned senior counsel appearing for the applicant would submit as under: • That, for commission of offence under Section 13(1)(e) of PC Act, possession of the property disproportionate to his known source of income is necessary and in the instant case all the seizure and inventory has been made from his son Sourabh Singh from Raipur, Durg and Bhilai and from his other son Ajit Singh at Bilaspur, and therefore, it cannot be said that he was in possession of disproportionate property of his known source of income. • That, information to the check period is sine-qua-none for supplying information in shape of Form-Al, A2 and A3. He would further submit that despite several request made, check period was not informed and by letter dated 17.06.2013 it was informed by the investigating officer that no check period is required to be intimated by the investigating officer to the applicant in connection with said offence and thereafter again on 29.06.2013 the investigating officer taking a U-turn informed him that entire service period has to be taken as check period and again by letter dated 03.04.2014 said to be issued to him by the investigating officer intimated the check period from 01.04.2000 to 22.10.2010 [which was not served to him] which is also apparent From the fact that in the arrest memo dated 26.11.2014 he has also made a note that check period has not been intimated till this date, and therefore, he could not submit the explanation regarding alleged disproportionate property allegedly held by him. • That, the investigating officer and his team has collected 581 documents as per inventory prepared at the time of seizure on 22.10.2010 and all the documents including bank passbook, income tax documents, salary document, registration book of vehicles, PAN card and Gas card etc. have been seized and he is not in possession of single document, however, after great effort, out of 581 documents only 180 documents have been supplied to him on 27.09.2013, and as such, the applicant is not able to submit his reply in absence of document relating to property and accounts. • That, from 22.10.2010 to 26.11.2011, the department never issued any statutory notice in terms of Section 41-A of Cr.P.C. requiring him to appear and principles of law laid down by Supreme Court in case of Arnesh Kumar Vs. State of Bihar and Another 2014 (8) SCC 273 , with regard to arrest has not been followed, in which, the Supreme Court has clearly indicated that arrest has to be made only when it is imperative, whereas, in the present case, the investigating officer did not supply the information regarding check period till this date and made arrest which is contrary, illegal and in teeth of authoritative pronouncements rendered by the Supreme Court. • Mere acquisition of property may not constitute an offence under the P.C. Act, but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. It is also argued by the learned senior counsel that, in the instant case, the prosecution is yet to prove the case against the applicant and only on the prosecution discharging its burden that the burden shifts to the accused to show that the possession of the amount referred to in the F.I.R. is not in excess of the known sources of income of the applicant and his family. • That, no further custodial interrogation from the applicant is required as the property said to be disproportionate had already been identified and has been seized and applicant is in jail custody since 26.11.2014 till this date. • That applicant cannot prepare his defence, remaining inside the jail. 3. On the other hand, Shri A.S. Kachhwaha, Additional Advocate General and Shri Neeraj Jain Govt. • That applicant cannot prepare his defence, remaining inside the jail. 3. On the other hand, Shri A.S. Kachhwaha, Additional Advocate General and Shri Neeraj Jain Govt. Advocate, counsel appearing for the State vehemently opposed the bail application and would submit as under: • That, check period has already been intimated to the applicant vide letter dated 03.04.2014 through Directorate, Nagariya Prashashan which has been duly received by the applicant on 05.04.2014 and after a period of more than seven moths, the applicant has not submitted his explanation in shape of Form-Al, A2 and A3 though requisite document has been supplied to him on 27.09.2013 running into 180 pages as per seizure memo and therefore, making allegation of non-supply of document is contrary to the record. • That, since the applicant has not cooperated in the investigation by not furnishing requisite information as request was made from the applicant from time to time to supply information, and as such, he was arrested on 26.11.2014 and the further custodial interrogation is necessary. 4. I have heard the counsel appearing for the parties and perused the case diary carefully. 5. After hearing learned counsel for the parties and perusal of records, the following facts would emerge on the face of record: • That, the applicant is a public servant working as a Executive Engineer (now suspended) in Municipal Corporation, Raipur. • That, on 22.10.2010, the ACB conducted raid in three premises of the applicant/his family members and made seizure of the property alleged to be possessed by applicant. • That, the investigating Officer of ACB firstly informed to the applicant by memo dated 17.06.2013 that the check period during which the applicant has amassed the wealth disproportionate to his known source of income is not required to be intimated to him, and thereafter, by memo dated 29.06.2013 it was informed that his entire service period has to be taken as check period and ultimately it is claimed that by memo dated 03.04.2014 it has been intimated to the applicant that check period is from 01.04.2000 to 22.10.2010. The said memo is said to be served to the applicant through Directorate, Nagariya Prashashan with whom the applicant was attached at particular point of time. The said memo is said to be served to the applicant through Directorate, Nagariya Prashashan with whom the applicant was attached at particular point of time. • That, the applicant time to time claimed photocopy of documents as according to him all the documents relating to property, bank accounts, vehicles and household articles running into 581 pages have been seized which finds place in the inventory prepared by the ACB, but only on 27.09.2013, 180 documents have been supplied to the applicant. • That, no statutory notice under Section 41-A of the Cr.P.C. has been served to the applicant requiring him to appear and comply the terms of notice. • That, applicant is in custody from 26.11.2014 till this date i.e. for more than three weeks. • That, alleged disproportionate property have already been identified by the 10 ACB. 6. At this stage it would be pertinent to notice Section 13(1)(e) of the Prevention of Corruption Act, 1988, which provides as under:-- "73. Criminal misconduct by a public servant--(1) A public servant is said to commit the offence of criminal misconduct,-- (a)-(d) (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, or pecuniary resources or property disproportionate to his known sources of income. Explanation--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant." 7. From a careful and closed reading of the above-stated provision would show that, to substantiate a charge under Section 13(1)(e) of the Act the prosecution must establish: • the accused is a public servant; • the nature and extent of the pecuniary resources of property found in his possession; • his known sources of income i.e. known to the prosecution; • such resources or properties found in possession of the accused were disproportionate to his known sources of income. 8. The Supreme Court in a decision reported in State of Maharashtra Vs. 8. The Supreme Court in a decision reported in State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar AIR 1981 SC 1186 , dealing with Section 5(1)(e) of the Prevention of Corruption Act, 1947 which is para material provision to Section 5(1)(e) held that to substantiate the charge, the prosecution must prove the following facts:-- 1. it must establish that the accused is a public servant, 2. the nature, and extent of the pecuniary resources or property which were found in his possession, 3. it must be proved as to what were his known sources of income i.e. known to the prosecution, and 4. it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. It has further been held that once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. 9. Thereafter, in a decision reported in K. Krishna Reddy Vs. State Deputy Superintendent of Police (1992) 4 SCC 45 , their Lordships of the Supreme Court held that, it is not mere acquisition of property that constitutes an offence under Section 5(1)(e), but it is failure to satisfactorily account for such possession that make the possession objectionable as offending the law. 10. Similarly, following the principle of law laid down in K. Krishna Reddy (1992) 4 SCC 45 , (supra) their Lordships of the Supreme Court in P. Nallammal and another Vs. State (1999) 6 SCC 559 , held as under:-- "75. Thus, the two postulates must combine together for crystallization into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb.........." 11. "Check period" has not been defined in the Prevention of Corruption Act. However, the CBI Manual provided during course of hearing defines the check period as under:-- Check Period: Check period is the period during which the accused is alleged to have acquired assets disproportionate to the known sources of income. "Check period" has not been defined in the Prevention of Corruption Act. However, the CBI Manual provided during course of hearing defines the check period as under:-- Check Period: Check period is the period during which the accused is alleged to have acquired assets disproportionate to the known sources of income. Generally, it is fixed within three to four months from the date of search with the concurrence of the SP. Generally end of Check Period is the date on which search is made. On the basis of the scrutiny of records obtained, beginning of the Check Period is fixed. Criteria for fixing beginning of check period. The phase when the accused • Acquired large assets • Incurred heavy expenditure • Was on a lucrative posting Some important facts regarding Check Period • It is the prerogative of the investigating Agency • Entire service period of the public servant need not be taken as check period • There is no hard and fast rule as to what exactly should be the minimum check period. 12. It is well settled that in order to establish that a public servant in possession of pecuniary resources and property, disproportionate to his known source of income, it is not imperative that the period of reckoning be spread out for the entire scratch of the Anterior service of the public servant and there is no general rule criteria valid for all cases in regard to choice of period for which accounts are taken to establish criminal misconduct under Section 13(1)(e) of the Act and this period has to be chosen by the prosecution. The Supreme Court in case of State of Maharashtra Vs. Pallonji Darabshaw Daruwalla 1987 (Supp) SCC 379, held as under:-- '16. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probabilised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. 18. The assumptions implicit in the above observation of the High Court suffer from a basic fallacy. It is for the prosecution to choose what, according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterize and isolate that period for special scrutiny. It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession. Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, by the standard of criminal evidence, that the public servant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources." 13. At this stage it would be appropriate to notice Section 439 of the Code, Section 439 of the Code of Criminal Procedure, 1973 provides as under:-- "439. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources." 13. At this stage it would be appropriate to notice Section 439 of the Code, Section 439 of the Code of Criminal Procedure, 1973 provides as under:-- "439. Special powers of High Court or Court of Session regarding bail--(1) A High Court or Court of Session may direct-(a) that any person accused of an offence and in custody be released on bail, and if the, offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 14. Very recently in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40 , highlighting the object of granting bail, their Lordships of the Supreme Court held as under:-- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." Their Lordships in the later part of judgment has held that the jurisdiction of criminal court to grant bail to the accused pending trial is discretionary and held as under: "25. The provisions of Cr.P.C. confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. 27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 15. The Supreme Court laid down the principles for granting or declining bail in Prahlad Singh Bhati Vs. NCT, Delhi (2001) 4 SCC 280 as under:-- "8. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution." 15. The Supreme Court laid down the principles for granting or declining bail in Prahlad Singh Bhati Vs. NCT, Delhi (2001) 4 SCC 280 as under:-- "8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the ban, the court has to keep in mind the nature of accusations, the nature of [the] evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 16. Further their Lordships of the Supreme Court in State of U.P. Vs. Amarmani Tripathi (2005) 8 SCC 21 , held as under:-- "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course., of justice being thwarted by grant of bail [see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admn.) (1978) 1 SCC 118 ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused." 17. It has further been held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan (2004) 7 SCC 528 , by their Lordships of the Supreme Court as under:-- '11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudorshan Singh (2002) 3 SCC 598 , and Puran Vs. Rambilas (2001) 6 SCC 338 .)' * * * 22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary." 18. In case Sanjay Chandra (2012) 1 SCC 40 , (supra), their Lordships of the Supreme Court pertinently held as under:-- "39. ........ In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. In case Sanjay Chandra (2012) 1 SCC 40 , (supra), their Lordships of the Supreme Court pertinently held as under:-- "39. ........ In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required." 19. In Dipak Shubhashchandra Mehta Vs. Central Bureau of Investigation (2012) 4 SCC 134 , following the Sanjay Chandra (2012) 1 SCC 40 , (supra), their Lordships of the Supreme Court have concluded as under:-- "32. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted." 20. Their Lordships of Supreme Court in case of Moti Ram & Others Vs. State of M.P. 1978 (4) SCC 47 , considering pre-trial detention held as under: "14. The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job is he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family." 21. The ratio of law laid down by Supreme Court in case of Mod Ram 1978 (4) SCC 47 , (Supra) has been followed in case of Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40 . 22. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family." 21. The ratio of law laid down by Supreme Court in case of Mod Ram 1978 (4) SCC 47 , (Supra) has been followed in case of Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40 . 22. After hearing the learned counsel for the parties bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-mentioned decisions and taking note of nature of the offence alleged and punishment prescribed for the said offences and taking note of the facts apparent of the face of the record as recorded in paragraph 6 of order and further taking into consideration that alleged disproportionate assets of the applicant have already been identified by the investigating agency and the check period has only been intimated/supplied to the applicant only on 03.04.2014 (same is disputed by the applicant) and further taking into consideration, that the applicant is in custody from 26.11.2014 i.e. for a period of more than three weeks, further, taking into consideration that he was holding the post of Executive Engineer of Municipal Corporation (now suspended) it is unlikely that applicant might flew from justice and nothing has been brought on record to say that applicant has from date of seizure to date of arrest has tempered the prosecution evidence or he is likely to temper with prosecution evidence, however, the suitable conditions can be put to safeguard the interest of the prosecution. 23. Consequently, the application under Section 439 of Cr.P.C. filed by the applicant is allowed. It is directed that the applicant shall be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/- with one surety for the like sum to the satisfaction of the trial court and he shall abide by the following terms and conditions: • That, the accused/applicant shall make himself available for interrogation before the concerned Investigating Officer as and when required and he shall co-operate with the investigating officer till completion of the investigation and, in addition, he shall mark his attendance before the Superintendent of Police, Anti Corruption Bureau on 20th of every month at any time between 10:00 AM to 05:00 PM. • That, the accused/applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer; • That, the accused/applicant shall not act, in any manner, which wilt be prejudicial to fair and expeditious trial; and • That, the applicant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. • The applicant shall surrender his passport and shall not leave the country without previous permission of Magistrate in writing. • Liberty is reserved in favour of respondent/State to move for cancellation of this order in event the applicant violates any of the aforesaid conditions. 24. It is clarified that observation made herein shall not be taken into consideration in other stage of criminal case, as it is only for the purpose of consideration of application for bail under Section 439 Cr.P.C. and criminal case will be considered and decided on its own merit without being influenced by any of the observation made hereinabove. Certified copy as per rules.