Gujarat High Court
Lalit Amritraj Chowdhary vs State Of Gujarat on 10 March, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.MA/5555/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 5555 of
2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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LALIT AMRITRAJ CHOWDHARY....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR PRATIK B BAROT, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR RUTVIJ OZA, APP for
the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 10/03/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT The present is an application under Section 438 of the Code of Criminal Procedure, 1973.
2. The applicant has prayed for anticipatory bail in connection with First Information Report bearing Crime Register No.I-03 of 2015 registered on 01st April, 2015 with CID Crime, Gandhinagar in respect of offences under Sections 409, 418, 465, 467, 468, 471, 120-B and 114 of the Indian Penal Code, 1860 as well as under Sections 13(1)(c), (D)(2) of the Prevention of Corruption Act, 1988. The applicant had filed anticipatory bail application before the Court of learned Additional Sessions Judge, Court No.8, Ahmedabad being Criminal Miscellaneous Application No.4615 of 2016, which came to be dismissed on 09th January, 2017 which led the applicant to file the present one.
3. The First Information Report was filed on 01st April, 2015 by the Collector and Chief Executive Officer, Metrolink Express for Gandhinagar and Ahmedabad (MEGA) Company Limited which was a government company set up under a State Government Resolution for the purpose of carrying out the project of commissioning the Metro Railway transportation services between Gandhinagar and Ahmedabad. The employees were recruited in the company as per requirement; various categories of civil work related to the project was undertaken between August, 2012 to August, 2013. One Mr.Sanjay Gupta, former IAS, was appointed as Chairman of the MEGA Company on 08th April, 2011 and from 04th August, 2011 he was made Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT Executive Chairman. In the F.I.R. it was stated that the new management of the company got information in August, 2013 that in the works undertaken in the past, irregularities were committed and payments beyond the normal rates were made, which were found in respect of the work of earth filling and earth levelling work at the places enumerated at Motera site. It was alleged that until the period of September, 2013 the filling work for casting work and depot was to be undertaken in total 54 Hectors which was found to be in 31 Hectors. The height level for casting yard and depot were fixed, and the works done therefor were much below the level. The work orders were given to different agencies for material, etc., and as per the details given by the Accounts & Procurement Department, the total quantity for material was 67.54 lakhs MT of the value of Rs.254.10 Crores. The complainant stated that though there was no need for undertaking revised survey as the ground level was not likely to undergo any change, still however, revised surveys were ordered and undertaken.
3.1 The alleged irregularities committed were meticulously described in the F.I.R., not be elaborated by way of repetition. They related to creating forged purchase orders and fale bills or vouchers by which modus without undertaking the actual work, amounts were collected and allegedly misappropriated. As stated above, the allegations were that the supply orders to the tune of 67.54 Lakhs MT for estimated cost of Rs.254 crores and more were given; one agency was given more than one supply Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT order. During the period from 23rd April, 2013 to 03rd July, 2013, purchases were made under 26 Notes for which the then Executive Chairman said Shri Sanjay Gupta had granted approval. Out of the said Notes, nine were the Notes which was submitted by the present applicant as well as accused No.1. After approval of these Notes, purchase orders were issued. It was further alleged that five other cases-Notes were presented by the applicant herein and accused No.1; out of them in respect of four the purchase orders were issued by the present applicant whereas in respect of one, the purchase order was issued by applicant No.1. Three Notes in other three cases were presented by the applicant herein and he himself issued purchase orders. The purchase orders were required to be given stage-by-stage as per requirement and after making proposal in writing, which was not done and orders and bills were created. The payment was made for approximately 2849 number of bills from April, 2013 till date in respect of the Motera site, for which 73 suppliers were given purchase orders; Rs.80.89 crores were paid towards material cost and towards transport and Rs.59.53 crores were paid towards transportation cost and in total the payment of Rs.147.11 crores was made.
3.1.1 Six accused named above were named in the F.I.R. and it was alleged against them, stating in nutshell and substance that they prepared false record, certified the false documents, created false bills and make payment on the basis of such false and fabricated vouchers and bills, thereby misappropriated Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT the government money colluding and conspiring with one another. By such process, they showed the purchase of filling material of much larger quantity than estimated and beyond design requirement which was in respect of the area to the extent of 11,24,867.00 Sq. Meters of the total sanctioned value of Rs.113.22 crores.
3.1.2 In the First Information Report, the offences under Section 409, 418, 465, 467, 468, 471, 120-B and 114 of the Indian Penal Code, 1860, as well as under Section 13(1)(c) and (d)(2) of the Prevention of Corruption Act, 1988 were mentioned. Seven accused persons were mentioned-(1) Shri Radhesh Dineshchandra Bhatt, the then Senior Manager in the Construction Wing of the company, (2) Ms.Smitaben Navinchandra Doshi, the then Senior Manager in the Construction Wing of the company, (3) Shri Balchandra Murlidhar Kakultage, the then Manager (Civil), Construction Wing, (4) present applicant Lalit Amritraj Chaudhari, the then General Manager, Construction and Procurement Division, (5) Shri Tarunkumar Himmatlal Padhiyar, the then Manager (Engineering), Construction Wing, (6) Shri Rahul Maheshkumar Upadhyay, the then Civil Manager, Construction Wing and (7) Shri Sudhanshu Kumar, the then Assistant Manager (Finance).
3.2 It is also stated that CID Crime, Gandhinagar Zone Police Station investigated the aforesaid complaint and chargehseeted 11 persons amongst whom did not figure the applicant. Against the present applicant, earlier report dated 23rd October, Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT 2015 was filed by the office of Deputy Superintendent of Police, CID Crime, Gandhinagar-the investigating officer of the case, according to whom there was no substance in the allegations against the present applicant and he opined to delete name of the applicant as co-accused. However, the said Summary Report No.02 of 2016 filed by the said earlier investigating officer, when placed before the learned Additional Sessions Judge, City Civil & Sessions Court No.5, Ahmedabad City, the said Court has by order dated 19th July, 2016 refused the permission to delete name of the applicant. It is not out of place to mention that in the said report of the investigating officer in which he opined to delete name of the applicant, it was observed at the same breath that the applicant was not co-operating in the inquiry and further that the irregularities noticed during the audit needed to be looked into and inquired upon.
4. Learned advocate Mr.Pratik Barot submitted that against the present applicant investigation was over long back, that in January, 2016 the investigation was taken over by CID Crime, the First Information Report was filed in the year 2015 and all the time till the investigation was being carried on and handed over to CID Crime, the applicant was available but not arrested. He was not even called for interrogation by the new investigating officer. It was, therefore, submitted that in such circumstances, anticipatory bail deserves to be granted to the applicant. It was submitted that even otherwise, the role alleged against the present applicant has been Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT exhaustively investigated by the earlier investigating officer, who at the conclusion of the investigation, was of the opinion that no overt act or omission could be attributed to the applicant and filed 'B' Summary Report.
4.1 Learned advocate for the applicant next submitted that looking to the position of the applicant in the entire set up, he was an advisor procurement consultant and his duty was to procure materials as required for different construction activities. Mr.Radhesh Bhatt-accused No.1 was his superior in capacity of Senior Manager in the company and it was he who had to verify the bills. In the hierarchy of administration of the company and distribution of duties, it was sought to be submitted, the applicant was much below for any role to be played and that he would not know if things were manipulated at the highest level of Mr.Sanjay Gupta or his superior. It was sought to be submitted that since the charge-sheet was filed against the other accused, investigation could be said to have been over.
4.1.1 Attempting to rest the case of the applicant on the principle of parity, learned advocate for the applicant submitted that since accused No.1-Radhesh D. Bhatt as well as accused No.3- Balchandra Murlidhar Kakultage have been released on bail, the present applicant should also be allowed anticipatory bail on the ground of parity. In this connection, he invited attention of the Court to the order of this Court dated 19th February, 2016 being Criminal Miscellaneous Page 7 of 16 HC-NIC Page 7 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT Application No.2044 of 2016 in case of said Radhesh Bhatt who was released on regular bail under Section 439 of the Cr.P.C. Attention was also invited on order in Criminal Miscellaneous Application No.467 of 2016 decided by learned City Civil 7 Sessions Judge, Court No.5, Ahmedabad whereunder accused No.3-Balchandra Murlidhar Kakultage came to be released on bail under Section 438 of the Cr.P.C. It was submitted that when the said co-accused were granted bail, there is no reason for the present applicant should be treated similarly. It was next submitted that other accused persons including accused No.2-Smitaben have been granted regular bail.
4.1.2 Learned advocate for the applicant thereafter submitted that whether it is a release under Section 439 or bail granted under Section 438, the consideration and grounds do not bear difference and the same principles would govern for grant of ordinary bail as well as the anticipatory bail. In support of this submission, learned advocate for the applicant press into service with reference to observations of the Apex Court in paragraphs 22 and 23 of the decision in Bhadresh Bipinbhai Sheth v. State of Gujarat [(2016) 1 SCC 152].
4.1.3 Submitting further, learned advocate for the applicant placed reliance on decision of the Apex Court in Sumeet Saluja v. State of U.P. TR. CBI [2011 (3) Supreme 302] pressed the proposition that where similarly situated co-accused were granted bail, applicant also deserves a bail. He next relied on Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT another decision of the Supreme Court in Izharul Haq Abdul Hamid Shaikh v. State of Gujarat [(2009) 5 SCC 283] for its paragraph 33. Furthering his plea for applying parity, learned advocate submitted on the basis of this Court's decision in Rameshbhai Batubhai Dhabi v. State of Gujarat [2011 (3) GLR 1999] that unless there exist any extra-ordinary circumstances or striking dissimilarities and where the superior courts have granted bail to the co-accused, subordinate courts are duty-bound to consider the same extending the principle of parity. For the very purpose to press the principle of parity, learned advocate for the applicant relied on the decision of this Court in Dr.Govindbhai Mavjibhai Patel v. State of Gujarat being Criminal Miscellaneous Application No.10018 of 2009 decided on 18th September, 2009, in particular paragraph 14 thereof, decision in Afroz Mohd. Hanan Fatta v. State of Gujarat being Criminal Miscellaneous Application No.2191 of 2015 decided on 05th March, 2014 for its paragraph 16 and further decision of this Court in Nazimuddin Pakruddin Kazi v. State of Gujarat being Criminal Miscellaneous Application No.23042 of 2015 decided on 16th December, 2015 for observations in paragraph 37 thereof.
4.2 Learned Public Prosecutor Mr.Mitesh Amin while opposing the prayer for anticipatory bail, highlighted the enormity of the offence to submit that the company was a government company established out of the shareholdings and its capital was a public capital. In the entire affair, what he described as a Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT scam according to his submission, it was submitted that one Mr.Gupta was the principal accused and the entire offence is committed at the instance of said principal accused who, the counsel submitted, has already surrendered pursuant to the Hon'ble Supreme Court cancelling the bail granted to him by this Court. He submitted that the investigation progressed from which it was revealed that previous to the joining the Metro Project as executive head, said Mr.Gupta was a lead executive in a particular hotel business and after his engagement in the instant project, he brought in other accused persons who were his co-employees in the hotel running business. Learned public prosecutor, by presenting such details on the basis of investigation, wanted to pinpoint the aspect that all the accused had worked together and that there was a kind of meeting of mind amongst the principal accused and the other accused who were found involved in the alleged acts and transactions amounting to the offences alleged.
4.2.1 It was submitted that the modus operandi of committing offence was conspicuous. The suppliers from whom the material was shown to have been purchased were all fictitious and the bills, etc., showing the existing of such alleged suppliers were fabricated. The amounts collected with such modus, were being transferred to the different accounts of other companies of the principal accused. He submitted that it was a systematic commission of offence in which the accused persons hatched a criminal conspiracy and to cause loss to public money.
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R/CR.MA/5555/2017 JUDGMENT
4.2.2 Learned Public Prosecutor further submitted
that looking to the nature of charges, it was
necessary to probe the role of each of the accused persons. He countered the submission on behalf of the applicant that the applicant is entitled to anticipatory bail on the count of parity with accused No.1 or any other accused. He further submitted that the report of the investigating officer showed that the applicant was non-cooperative n the investigation.
5. Adverting to the ground of parity sought to be put forth for the applicant herein, the order of the Sessions Court whereby accused No.3-Balchandra Murlidhar Kakultage was allowed anticipatory bail on the ground that accused-Sanjay Gupta as well as accused-Radhesh Bhatt have been enlarged on bail by the High Court. The grounds mentioned in the order of the Sessions Judge would themselves render the peal of parity made for the present applicant to be meritless. As far as the order granting bail granted to the accused-Sanjay Gupta who is described as main accused is concerned, the same was challenged before the Apex Court by filing Special Leave to Appeal (Criminal) No.15287 of 2016 and by order dated 26th September, 2016 the Supreme Court has stayed the impugned order of bail passed by this Court. As far as accused- Radhesh Bhatt is concerned, his enlargement was on regular bail under Section 439, Cr.P.C. though it was argued that Radhesh Bhatt's case would attract the doctrine of parity for the applicant. When one accused is released on regular bail and other co-accused is Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT seeking anticipatory bail, it is not possible to draw exact parallels between them.
5.1 Eventhough it may be true that the considerations for granting regular bail and anticipatory bail may have certain meetings points at some level, however a conspicuous distinction between the two cannot be overlooked. This distinction is the stage of consideration which is essentially the stage of investigation qua the accused concerned. An application when made under Section 438, Cr.P.C. is for pre-arrest protection where the investigation of the alleged crime has only commenced, and it is largely at the initial stage unconcluded. In case of bail asked for under Section 439, Cr.P.C. the stage would be entirely different. At this juncture, the claim of freedom from arrest of the applicant-accused has to be balanced with the imperatives of investigation. So the considerations would differ in that context. A vital factor which has to go into the judicial application of mind while entertaining the plea for anticipatory bail is the interests of investigation. Where the investigational needs has its imperativeness or where a shade of indication is available that the accused does not co-operating with the investigation or the accused, for any reason, is unlikely to co-operate with the investigation, the benefit of pre-arrest protection may not be properly extended.
5.2 When the context is of investigational needs and interests, it cannot be the acceptable argument from the side of the accused that investigation was Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT carried out qua other accused or that other accused persons were interrogated or that the charge-sheet qua other accused is filed or that other accused is available for interrogation. The investigational needs is to be considered with reference to particular accused and his role in the entire alleged offence. In the investigation which is for the entire offence and the range thereof, the individual role is always to be focused. The total steps in the investigation would be accordingly completed. There are types of crimes and offences, such as criminal conspiracy as in the present case, in which cases, an individual accused who may have committed crime in collusion or in conspiracy with others and an individual accused could be a person to provide a clue or indications in respect of the commission of crime.
5.3 Serious in itself, it was in the CAG Audit during 2015 that the audit observations revealed the entire irregularity and the commission of offence. The present applicant was a Procurement Manager and the entire procurement of material worth Rs.147.93 crores was processed by him. The investigating officer in his report dated 23rd October, 2015 narrated in detail the nature of act and involvement of the applicant though stated that there was no evidence and recommended deletion of his name from the array of accused, which has however not been approved by the competent court. The role of the applicant as discernible from the allegations in the F.I.R., the investigation report mentioned above and the attendant aspects is independent in its degree and seriousness. The need Page 13 of 16 HC-NIC Page 13 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT for interrogative exercise qua the role emerging in total could not be brushed aside lightly. The parity doctrine would not come to ready rescue of the applicant for the reasons stated above for claiming anticipatory bail.
6. Applying the parameters in Siddhram Stalingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] to the total facts emerging in this case, it could hardly be said that a special case is made out by the applicant in which he could successfully plead for anticipatory bail. One of the factors indicated in the Siddhram Stalingappa Mhetre (supra), amongst other considerations, is the magnitude of the offence. It was in a government project by a government company set up for public utility purpose of Metro Project that the accused persons including the applicant herein acted in the manner and the modus highlighted above to defalcate the money by fabricating the documents. The applicant could be said to be holding a position in the hierarchy of the company where his role could at all not be discarded, rather the allegations made in the F.I.R. clearly attracted and attributed the role independent in itself. The exact role of the applicant-accused was discernible from the allegations in F.I.R. and attendant facts and circumstance.
6.1 The alleged criminal conduct has resulted into loss to public exchequer and the crime allegedly committed by the applicant has to be public money dimension and consideration of societal interest at Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Mar 11 00:38:59 IST 2017 R/CR.MA/5555/2017 JUDGMENT large, therefore the nature and gravity of accusation is serious enough. Looking to the gravity of the alleged crime and the severity of punishment, the powers under Section 438 are not liable to be exercised in favour of the applicant. As discussed above, nor it could be said that the investigation would not require the applicant for the purpose of interrogation. The applicant is described as non- cooperative in the investigation by the investigating officer as per the report mentioned hereinabove.
6.2 The principles laid down in Siddhram Stalingappa Mhetre (supra) came to be relied on by the Supreme Court in Jai Prakash Singh v. State of Bihar [(2012) 4 SCC 379] and it was observed by the Supreme Court as under.
"Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [(2007) 4 SCC 434], State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [(2008) 1 SCC 213] and Union of India v. Padam Narain Aggarwal [(2008) 13 SCC 305]."
(Para 19) 6.3 On all the above considerations cumulatively operating, the parameters for grant of anticipatory bail in the present case are not satisfied.
7. For the above reasons, the prayer for anticipatory bail could not be accepted. Consequentially, the application stands rejected. Notice is discharged.
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