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2021 DIGILAW 438 (GAU)

K. Khekiho Shohe v. State of Nagaland

2021-07-19

S.HUKATO SWU

body2021
JUDGMENT : S. Hukato Swu, J. 1. Mr. Wati Jamir appears for the petitioners and Mr. N. Mozhui assisted by Ms. N. Rupreo appears for the respondent No. 2/Nagaland Lokayukta Police, Nagaland. 2. The present matters relates to an order passed by this Court on 23-04-2021 granting ad-interim bail to the petitioners on certain conditions. The matters has been kept pending due to several reasons and the interim order stands till date without hearing on the regularization. On the last occasion, CD was called for and learned counsel representing the respondent No. 2 is before the Court today with the case diary furnished by the Lokayukta Police Station. 3. Learned counsel for the petitioners Mr. Wati Jamir submits that the arguments to be presented by the petitioners are in nutshell contained in the previous order dated 23-04-2021 granting interim bail wherein, facts of the case have already been fairly reproduced. The Lokayukta in connection with RC No. 2/2020 under Section 13(1)(a)(b)(2) P.C. Act, 1988, several items were seized from the resident of the applicants. The matter basically concerns with the Integrated Catchment Area Treatment (ICAT) fund sanctioned by the Central Government for the period 2016-2017 amounting to Rs. 1.9 crores in respect of Kohima District. The fund could not be utilized for non compliance of the guidelines of ICAT by the then District Soil Conservation Officer (DSCO) of the Department for the district of Kohima. Only an amount of Rs. 15 lakhs was utilized and the money that was not utilized was parked with the department. Since the scheme was not put up for release of the said fund by the DSCO. The seizure by the Lokayukta Police is related to the unutilized fund. 4. Learned counsel for the petitioners submits that the merits of the case would be decided after the trial. As of now, we are concerned with the issues as to whether the petitioners case merits for grant of anticipatory bail considering their antecedents, character and status and the possibility of their absconding from the trial and also tempering with the evidence. 5. The petitioners were allowed to go on ad-interim bail on 23-04-2021 and has all along been cooperating with the investigation and are ready to appear before the investigation or Special Judge as the case may be as and when called for. The petitioners are also responsible citizens. 5. The petitioners were allowed to go on ad-interim bail on 23-04-2021 and has all along been cooperating with the investigation and are ready to appear before the investigation or Special Judge as the case may be as and when called for. The petitioners are also responsible citizens. The petitioner in AB No. 2/2021 is at present Additional Director while the petitioner in AB No. 3/2021 is a retired Director having deep roots in the society and responsible citizens. They are not likely to evade the Court of justice and tamper with the evidence or abscond or flee from the Court of law. Learned counsel has placed reliance upon the ruling of the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra, reported in (2011) 1 SCC 694 . They are not likely to evade the Court of justice and tamper with the evidence or abscond or flee from the Court of law. Learned counsel has placed reliance upon the ruling of the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra, reported in (2011) 1 SCC 694 . In the above cited ruling of the Apex Court, the matter for consideration of anticipatory bail application has been thoroughly discussed by the Apex Court wherein, it has pronounced that the following factors and parameters should be taken into consideration while dealing with anticipatory bail:- (1) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made (2) the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence (3) the possibility of the applicant to flee from justice (4) the possibility of the accused likelihood to repeat similar or other offence (5) where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her (6) impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people (7) while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused (8) the court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant (9) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. (10) Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. (10) Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 6. The above pronouncement of the Apex Court being the guiding principle while considering anticipatory bail, the present petitioners being responsible persons and having no previous antecedents of imprisonment in the criminal court there is no likelihood of their absconding etc their cases should be considered for regularization of the anticipatory bail granted on 23-04-2021. 7. The fact of the matter is that all the documents and the money involved in the investigation has already been seized. Therefore, there is no further necessity for the custodial investigation or interrogation of the present petitioners. There is no absolute necessity for the detention of the petitioners in custody and therefore, the present petition merits regularization. 8. Learned counsel for the respondent No. 2 Mr. Mozhui appears and submits that the present offence is an offence which involves huge money transactions having impact on the society. The CD shows that the petitioners have opened a Bank Account for the project without the approval of the Government. Several transactions which are illegal have been made by the petitioners. An amount of Rs. 1,12,36,809/- has been transferred to two firms who were not even beneficiaries in the scheme. In total Rs. 8,23,50,000/- have been drawn in cash on different occasions by the petitioners with effect from 05-12-2016 to 16-12-2017. Furthermore, an amount of Rs. 4,28,90,000/- was transferred to the personal account of the two petitioners. The above being the amount of the illegal transaction and also gratification made by the petitioners they have defrauded the State exchequer by illegal means thus causing huge loss to the Government. The magnitude of the offence is therefore great and is in public interest, the petitioners should not be allowed to go scot free. 9. Objecting to the regularization of the interim bail order passed by this Court, learned counsel for the respondent has also submitted that the petitioners have brought the matter to the Hon'ble High Court inspite of the Special Court under the P.C. Act which is in existence. 9. Objecting to the regularization of the interim bail order passed by this Court, learned counsel for the respondent has also submitted that the petitioners have brought the matter to the Hon'ble High Court inspite of the Special Court under the P.C. Act which is in existence. Although there is no bar to filing the application before this Court it is a method to get benefit which is not due. Learned counsel for the respondent has therefore objected to the regularization of the anticipatory bail as prayed for. 10. On hearing the submissions of the learned counsels for the parties, it is observed that the regularization for the interim order has been kept pending since the last 2 ½ months. In the previous interim order it was considered that the cash that was involved is already in the custody of the Lokayukta Police and there is no further need of custodial interrogation of the petitioners. On the filing of the CD by the Lokayukta Police, apparently, certain new facts have emerged as the figure presented in the previous petition and the figure presented today varies. However, I am of the view that the petitioner have not violated the conditions of the ad-interim order and I am also satisfied that the petitioners have no previous criminal antecedents and the petitioners are responsible officer who have roots in the society and there is no reason to believe that they will abscond from trial or they will tamper with the investigation. There is no compelling reasons to keep the petitioners under custody. 11. Having observed as above, I am of the considered view that the ad-interim bail order dated 23-04-2021 be regularized under the following terms and conditions:- (1) that the petitioners shall execute bail bond of Rs. 5,00,000/- (Rupees five lakhs) only each which shall be forfeited in the event of violation of the bail conditions (2) the petitioners shall furnish surety each who shall be a Government servant resided within the jurisdiction of this Court and to the satisfaction of the Special Judge, P.C. Act. (3) the petitioners shall appear before the Lokayukta Police or Special Jude, P.C. Act as the case may be, whenever called for (4) the petitioners shall not leave the jurisdiction of this Court without prior permission. With the above conditions, at-interim bail dated 23-04-2021 is hereby regularized. Anticipatory bail applications stands disposed of accordingly.