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Uttarakhand High Court · body

2016 DIGILAW 570 (UTT)

Avneesh Kumar Gupta v. CBI through S. P. E. Dehradun

2016-09-14

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. Since the factual matrix of the aforesaid bail applications is the same, therefore, they are being decided together by this common order for the sake of brevity and convenience. 2. Applicants seek bail in connection with RC no. RC 007 2016 A 0003 under Sections 120B IPC, Section 7 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and substantive offences thereof registered with CBI, Special Police Establishment, Dehradun. 3. Heard learned counsel for the parties, perused the documents brought on record and considered the grounds taken up in the bail applications. 4. An FIR was lodged by complainant Anil Kumar Yadav on 18.02.2016, enumerating the facts contained therein that the complainant is engaged in the business of manpower supply through five sister concern companies, all located at Rudrapur. On 30.03.2015, the officials from D.G.C.E.I. Dehradun conducted raid at the offices of all the five companies located at Arz Tower, Rudrapur, Uttarakhand with regard to service tax evasion and had seized the maximum original business records of all the concerned companies. Thereafter, the complainant, in consultation with his Advocate calculated the due service tax amounting to more than rupees one crore and deposited the same in Government Treasury and an intimation in this regard was given to concerned Service Tax Office. It has further been alleged that in August 2015, Sri A.K. Mishra, Asstt. Director, DGCEI, Dehradun called the complainant in person at his DGCEI office and also called other suspected officers to discuss the business details of the companies. During discussion, these suspected officers also demanded an amount of rupees ten lacs as bribe and also threatened the complainant that he will be sent to jail if the bribe amount is not given to them. After this meeting, it is alleged, that the above suspected officers used to frequently call the complainant either in person by summoning him or by making telephonic calls in order to pressurise him to pay the bribe amount. On 19.01.2016, Sri A.K. Mishra called the complainant to DGCEI, Dehradun office and again reiterated the demand for bribe. On 18.02.2016, Sri A.K. Mishra again called the complainant at his office and reiterating their demand asked the complainant to come with bribe amount at DGCEI, Dehradun office on 19.02.2016, at 03:30 P.M. 5. On 19.01.2016, Sri A.K. Mishra called the complainant to DGCEI, Dehradun office and again reiterated the demand for bribe. On 18.02.2016, Sri A.K. Mishra again called the complainant at his office and reiterating their demand asked the complainant to come with bribe amount at DGCEI, Dehradun office on 19.02.2016, at 03:30 P.M. 5. Learned Senior Counsel appearing for the applicant Anil Kumar Mishra @ A.K. Mishra drew attention of this Court towards following decisions rendered by Hon’ble Apex Court and other High Courts. A reference of these rulings is being given here-in-below for convenience: 6. Gurcharan Singh and others vs State (Delhi Administration), AIR 1978 SC 179 ; P. Das Gupta vs State, through CBI, 2003 Cr.L.J. 1055 (Delhi High Court); Anil Mahajan vs Commissioner of Customs and another, 2000 Cr.L.J. 2094 (Delhi High Court); State of Rajasthan vs Balchand, 1977 SCC (Cri) 594; Sanjaya Chandra vs CBI, [(2012) 1 SCC (Cri) 26] and Mohan Singh vs Union Territory, Chandigarh, AIR 1978 SC 1055. 7. The submission of learned Senior Counsel for the applicant, in the light of judgment pronounced by Hon’ble Supreme Court in Gurucharan Singh’s case (supra), is that two paramount considerations namely likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses relate to ensure the fair trial of the case and, therefore, it is essential that proper weightage should be bestowed on these two factors apart from others. It was also held by Hon’ble Supreme Court that unless exceptional circumstances were brought to the notice of the Court which might defeat proper investigation and a fair trial, the court would not decline to grant bail to a person who was not accused of an offence punishable with death or imprisonment for life. The overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence was committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; the likelihood of repeating the offence; the likelihood of jeopardising his own life being faced with grim prospect of possible conviction in the case; the likelihood of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. Reference has also been made of P. Das Gupta’s case (supra) emphasizing the overriding considerations in granting bail as laid down by the Hon’ble Supreme Court in Gurucharan Singh’s case (supra). In Balchand alias Baliay’s case (supra) it has been held by Hon’ble Supreme Court that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. In Sanjay Chandra’s case (supra) while arguing the case before Hon’ble Apex Court on behalf of the appellants, it was submitted that a citizen of this country, who is charged with a criminal offence, has the right to be enlarged on bail. Per contra, learned A.S.G. replied that one of relevant considerations for the grant of bail is the interest of the society at large as opposed to the personal liberty of the accused, and that the Court must not lose sight of the former. In Mohan Singh’s case (supra) it was observed by Hon’ble Supreme Court that the corruption of which the appellant was guilty prima facie (according to the results of the investigation) was substantial. Even then refusal of bail is not an indirect process of punishing an accused person before he is convicted. The Hon’ble Apex Court has explained the real basis of bail law in Gurucharan Singh v. State (Delhi Administration), AIR 1978 SC 179 . 8. Learned Senior Counsel for the applicant further drew attention of this Court towards following decisions which too are being referred to here-in-under for convenience: 9. Suraj Mal vs State of Delhi Administration, 1979 Cr.L.J. 1087; C.M. Girish Babu vs CBI, Cochin, High Court of Kerala, (2009) 2 SCC (Cri) 1; State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede, (2010) 2 SCC (Cri) 385; Banarsi Dass vs State of Haryana, (2010) 2 SCC (Cri) 864; B. Jayaraj vs State of Andhra Pradesh, (2014) 5 SCC (Cri) 543; P. Satyanarayana Murthy vs The Dist. Insp. of Police, (2015) 10 SCC 152 and Krishan Chander vs State of Delhi, (2016) 1 SCC (Cri) 725. 10. Insp. of Police, (2015) 10 SCC 152 and Krishan Chander vs State of Delhi, (2016) 1 SCC (Cri) 725. 10. In Suraj Mal’s case (supra) the defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. …It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. Reliance is also placed upon the judgment of C.M. Girish Babu’s case (supra) where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence from demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record. In State of Maharashtra’s case (supra) it has been held by Hon’ble Apex Court that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. It has been observed by Hon’ble Supreme Court in Banarsi Dass’s case (supra) that to constitute an offence under Section 161 IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused. The same legal principle has been held by the Hon’ble Apex Court in Krishan Chander’s case (supra). In B. Jayaraj’s case (supra) it has been underlined, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. In B. Jayaraj’s case (supra) it has been underlined, in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. …The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail… In P. Satyanarayana Murthy’s case (supra) it was pronounced by Hon’ble Supreme Court that the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction there under. 11. Reliance is also placed upon Anvar P.V. vs P.K. Basheer and others, (2015) 1 SCC (Cri) 24, which throws light on Sections 65A, 65B and 62 of the Indian Evidence Act, 1972, as to how a secondary evidence of electronic record has to be proved. 12. It is also argued before this Court that the applicants are officers of Central Excise Intelligence department and their personal liberty cannot be taken away only for certain unjustified reasons, especially, when there is no incriminating evidence against them. Why a person should remain behind bar, for something which he has not done? The prosecution has relied upon privately recorded conversation. When and under what circumstances the recording has been done, has not been made clear. In the transcript of conversation, no specific demand has been made. Recording is pre-trap, in the case in hand. Why a person should remain behind bar, for something which he has not done? The prosecution has relied upon privately recorded conversation. When and under what circumstances the recording has been done, has not been made clear. In the transcript of conversation, no specific demand has been made. Recording is pre-trap, in the case in hand. FIR was lodged on 19.02.2016 at 11:30 A.M. Voice identification report has not yet been filed. In other words, Central Forensic Science Laboratory report has not been filed by the prosecution as yet. Why should the applicants be detained in jail unnecessarily? 13. All these forceful arguments have been answered by learned counsel for CBI while placing different Annexures with its counter affidavit. The Annexures enclosed with the counter affidavit (of CBI) will reveal entire conversation between the complainant and accused persons on different occasions. It is not necessary for the Court, while deciding the bail applications, to quote the entire conversation between the complainant, on the one hand and different accused persons, on the other hand. Suffice will it be to say, that there are reasonable grounds for believing, at this stage, that the accused persons are guilty of such offences, as are alleged against them. The authenticity of the recorded conversation can be proved only at the stage of trial. 14. The scope for bribery and corruption of public servants has enormously increased over the years. Contracts are being terminated; large amounts of government surplus stores are being disposed of; there will be shortage of various kinds requiring imposition of controls and there will be disbursement of large sums of government money. The conscience of the court can never be bound by any rule, but that is coming itself, dictates the consciousness and prudent exercise of the judgment, said Hon’ble Supreme Court in Gurbachan Singh vs Satpal Singh and others, 1993 (3) Crimes 518 SC. Sometimes justice and life are larger than law. Justice is a word which has a larger connotation and has to be understood in its proper perspective and spirit in the background of given facts and circumstances. The instant case appears to be an illustration of demanding and accepting illegal gratification. The transcript of recorded telephonic conversation has been brought on record by respondent CBI in an effort to bring home guilt to the accused persons and denial of bail. The instant case appears to be an illustration of demanding and accepting illegal gratification. The transcript of recorded telephonic conversation has been brought on record by respondent CBI in an effort to bring home guilt to the accused persons and denial of bail. A wholesome reading of those conversations brings life to the story. 15. The courts have to strike a reasonable balance between the societal interest and individual interest. When these interests are irreconcilable, societal interest must prevail. In a society governed by rule of law, there should be zero tolerance to corruption. Oft repeated arguments that if the accused has committed an offence, he will be convicted by the trial court, and therefore, he should be granted bail at the very first go, does not seem to be palatable / acceptable to corruption cases. One should not lose sight of the fact that those involved in the corruption are normally high and mighty, and therefore, may exercise their influence in scuttling the legitimate prosecution. The law should always help the poor and needy, and not to those who are ever ready to sweep corruption under the carpet. 16. The nature of graft cases is entirely different from other common offences and, therefore, greater care should be taken while scrutinizing such cases. The same does not mean that the general principles of law relating to bail are to be given a go bye, or a deviation, but the only thing, which this Court would like to thrust, is that bail in such cases should be considered with great circumspection and only when there exists reasonable ground for believing that the accused is not guilty of such offences, bail should be granted. It should not be done in a casual and routine manner. 17. Roscoe Pound pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law Courts also to apply the law depending upon the situation. Since the law is made for the society and whichever is beneficial for the society, the endeavour of the law Court would be to administer justice having due regard in that direction. [Balbir Kaur vs Steel Authority of India, 2000 (2) SCT 899, at PP.901 & 904: 2006 (6) JT(SC)281]. 18. Since the law is made for the society and whichever is beneficial for the society, the endeavour of the law Court would be to administer justice having due regard in that direction. [Balbir Kaur vs Steel Authority of India, 2000 (2) SCT 899, at PP.901 & 904: 2006 (6) JT(SC)281]. 18. The following golden rules, in the humble opinion of this Court, must be kept in mind while dealing with corruption cases: (1) Power tends to corrupt and absolute power corrupts absolutely. Caesar’s wife must, therefore, be above suspicion. (2) The concept of fairness to the accused must not be stretched till it is harrowed to a filament. (3) The crime problem is the overdue debt a society must pay for tolerating, for years, the conditions that breed lawlessness. (4) Courtroom is a microcosm of society. Judges are central players for the prevalence of rule of law. This Court does not see any reason to grant bail to the accused-applicants. All the bail applications are hereby dismissed.