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2023 DIGILAW 590 (JK)

Ashok Kumar v. Central Bureau of Investigation

2023-10-06

JAVED IQBAL WANI

body2023
JUDGEMENT 1. The petitioner herein through the medium of the instant application seeks bail in FIR No. RC0042023A0009, dated 13.09.2022, registered with CBI, ACB Jammu under section 7 of the Prevention of Corruption Act, 1988 (for short, the Act of 1988). 2. According to the learned counsel for the petitioner, the petitioner herein while serving as a Revenue Inspector in the Cantonment Board, Jammu came to be arrested by the respondent herein on 14.09.2023 on the basis of a complaint lodged by one Sh. Vinod Sharma S/o Late Ratan Lal Sharma R/o Q. No. 12, Cantonment Board, Jammu Cantt. Satwari, Jammu who had alleged in the complaint that the petitioner herein had demanded a bribe of Rs. 2,00,000/- (Rupees Two Lacs) for not taking any action against him on the eviction notice issued by the Chief Executive Officer, Cantonment Board, Jammu and also for making allotment entry in the name of the mother of the complainant. 3. According to the learned counsel, prior to the filing of the instant bail application, the petitioner filed a bail application before the Court of Special Judge, Anti-Corruption (CBI Cases), Jammu on 15.09.2023, which application, however, came to be dismissed on 21.09.2023 on the ground that the investigation is at the early stage and that the statement of the material witnesses of pre-trap and post-trap proceedings have not been recorded and that, as such, there is every possibility of the petitioner herein hampering the investigation. 4. According to the learned counsel, the investigation in the case being an offence committed by the petitioner under section 7 of the Act of 1988 is complete as soon as the trap proceedings are concluded and, as such, the detention of the petitioner after completion of trap proceedings amounts to pre-trial conviction which is not being countenanced by law. According to the learned counsel, the petitioner undertakes to abide by any of the terms and conditions those may be imposed by this court in case, the petitioner is admitted to bail. More so, inview of the fact that only one day's remand was sought by the prosecution from the competent Court for the custody of the petitioner herein. 5. Objections to the application have been filed by the respondent herein wherein it is being stated that the petitioner herein came to be caught red handed while demanding and accepting a bribe of Rs. 5. Objections to the application have been filed by the respondent herein wherein it is being stated that the petitioner herein came to be caught red handed while demanding and accepting a bribe of Rs. 2,00,000/- from the complainant in presence of independent witnesses on 14.09.2023 after a verification of the said complaint was carried out and Case No. RC0042023A0009 was registered on 13.09.2023 u/s 7 of the Act of 1988 against the petitioner and consequently a trap was laid and the petitioner was caught red handed on 14.09.2023 while demanding and accepting bribe from the complainant and that considering the gravity of the offence, the earlier bail application filed by the petitioner before the Special Judge Anti Corruption (CBI Cases) Jammu came to be rejected vide order dated 21.09.2023 and that the accused-petitioner being a public servant has committed a heinous offence and that the accused-petitioner has also been found to be involved in demanding and accepting bribe for processing other cases as well pending in his office and that an amount of Rs. 6.50 lacs was recovered from his residence and that the investigation of the case is under way to trace further proceeds of crime acquired by the petitioner and that the petitioner is highly influential and investigation is at a crucial stage and that there is every possibility that the petitioner may tamper with the evidence and influence the witnesses if granted bail by this Court. Heard learned counsel for the parties and perused the record. 6. Before adverting to the rival submissions of the appearing counsel for the parties, it would be advantageous and appropriate to refer to the principles of law laid down by the Apex Court from time to time in the matter relating to bail. The Apex Court in case titled as “[1]Sanjay Chandra vs. Central Bureau of Investigation”, reported in (2012) 1 SCC 40 laid down as follows: “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 can be required to ensure that an accused person will stand his trial when called upon. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be 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. From time to time, necessity demands that some un-convicted 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. 24. In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." 25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to 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 valuable right of liberty of an individual and the interest of the society in general. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to 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 valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. 34. More recently, in the case of [2]Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 , this Court observed that "(j)ust as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important." 35. This Court further observed: "116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569 , [3]Vivek Kumar v. State of U.P., (2000) 9 SCC 443 , Mahesh Kumar Bhawsinghka v. State of Delhi.” A Co-ordinate Bench of this Court in case titled “[4]Mohd. Razak and Another vs. State of J&K and Another”, reported in 2007 Supreme (J&K) 48 has laid as follows: “8. So long as there were no such Special provisions in force providing severe punishment and stringent provisions regarding bail during investigation and trial of cases under the Prevention of Corruption Act and such like other Laws, persons accused of offences under the Prevention of Corruption Act, 2006, cannot, in my opinion, be treated differently to deny them consideration for bail during investigation and trial merely because they were alleged to be involved for infraction of offences under the Prevention of Corruption Act, 2006. 9. 9. While considering release of persons accused of offences under the Prevention of Corruption Act, general principles governing grant or refusal of bail and provision of Section 497 of the Code of Criminal Procedure are undoubtedly required to be kept in view, and bail in such non-bailable offences may not be claimed, as of right, and in the absence of any special circumstances warranting refusal of bail, the well recognized principle that bail is the rule and refusal an exception would always be a guiding factor for the Courts while considering the grant or refusal of bail in such cases.” 7. Keeping in mind the aforesaid principles of law and reverting back to the facts of the case in hand, admittedly the petitioner has been arrested on 14.09.2023 by the respondent on account of having allegedly demanding and receiving bribe from the complainant during a trap laid by the respondent at the instance of the said complainant. 8. The fundamental objections raised by the respondent in opposition to the application is that the petitioner is an influential officer in the Revenue Department and that there is every likelihood, if released on bail, he would tamper with the evidence and influence with the witnesses, however no instance has been referred to or relied upon by the respondent in the objections that the petitioner has a background that he would either influence the prosecution or tamper with the evidence. The contention, ex-facie, is speculative without there being any substantial material on record. Admittedly, the main witness in the prosecution case is the complainant and that there is no apprehension expressed by the respondent that there is every likelihood that the petitioner would flee from the process of law or tamper with the evidence which indisputably is substantive in nature. 9. Law is settled that the consequence of a pre-trial detention would be grave as, in law, an accused is presumed to be innocent till proven guilty. 10. Having regard to the aforesaid facts and circumstances of the case and principles of law, it is manifest that there is no danger to the course of the justice at the hands of the petitioner, so much so, there is no likelihood supported with any material on record by the respondent that the petitioner, if enlarged on bail, would repeat the offence or else would tamper with the evidence or influence the witnesses. 11. 11. For all what has been observed, considered and analyzed herein above, the petitioner has been able to carve out a case for indulgence of this Court and consequent grant of bail. Accordingly, application is allowed and petitioner is admitted to bail subject to the following conditions:- i. Furnishing of a surety bond to the tune of Rs. 1.00 lac with two sureties of the like amount to be furnished before Superintendent of Police, Central Bureau of Investigation Panama Chowk, Jammu; ii. That the petitioner/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the court; iii. That the petitioner/accused shall appear before the trial court on each and every date of hearing during the trial except for special circumstances beyond their control; iv. That the petitioner/accused shall not leave the territorial jurisdiction of the trial court without seeking prior permission; v. That in case respondent/CBI collects any material during the period the petitioner/accused is on bail that he is influencing the witnesses or has tried to intimidate them the prosecution would be within their rights to move an application before this court for cancellation of the bail; vi. That he shall surrender his passport with the investigating agency. 12. Application is accordingly disposed of.