Gujarat High Court
Shankardan Keshubhai Langa vs State Of Gujarat on 26 February, 2024
NEUTRAL CITATION
R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 21424
of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 21564 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHANKARDAN KESHUBHAI LANGA
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATY, SR. ADVOCATE with MR MAUNISH T PATHAK(5892)
for the Applicant(s) No. 1
MR MITESH AMIN, AAG with MR HK PATEL, ADDL. PUBLIC
PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/02/2024
CAV JUDGMENT
Rule returnable. Learned APP waives service of rule for the respondent State.
1. By way of the present petitions under Section 438 of the Page 1 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11216025230480 registered with Santej Police Station & C.R.No.11216008230490 both registered with Gandhinagar Sector 7 Police Station.
2. Brief facts of the case are as under:-
2.1 It is alleged that the petitioner is a retired collector, and lastly he was serving as collector at Gandhinagar as a Government Servant from 06.04.2018 to 30.09.2019. That sum and substance of the FIR is that loyalty and honesty was lacking in the service of the petitioner; the petitioner has ignored rules and regulations of the government and provisions of law for his Personal interest; he had adopted peak and choose policy; he has harassed the petitioners of the cases, where they have not settled it financially; the petitioner has caused loss of premium amount to the government; committed criminal breach of trust;
at the time of his retirement in the last week, he has decided many non-agricultural permission cases and in some cases he has decided after his retirement; and in the entire proceedings serious misconduct and irregularity is surfaced and he has misused his power and authority.
2.2 The petitioner has passed the orders and exercised his powers as a collector in his official capacity as a quasi- judicial/judicial authority and jurisdiction vested in him as a public servant. What is pertinent to note though is that till date those orders are not challenged by the Government to the higher Page 2 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined forum. Moreover, the orders passed by the present Petitioner are appealable / revisional in nature as per the provisions of Bombay Land Revenue Code as well as Gujarat Tenancy and Agriculturist Act.
2.3 It is further submitted that the FIR as CR No. 11216008230197 of 2023 is already registered against the present Petitioner on 17.05.2023 before Sector-7 Gandhinagar police station, Dist: Gandhinagar and as per the said FIR the offence with regard to alleged misappropriation and misuse of powers with regard to lands situated at Village: Mulsana, Taluka: Kalol, Dist: Ganhidnagar is already investigated by the Investigating agency.
2.4 That the petitioner herein had preferred anticipatory bail application before Session Court Gandhinagar at Kalol being Criminal Miscellaneous Application Nos. 432 of 2023 & 1625/2023. That said applications came to be rejected vide order dated 10.11.2023 & 8.11.2023. Hence, present petitions.
3. Heard learned Senior Counsel Mr. ND Nanavaty with learned advocate Mr. Maunish Pathak for the petitioner and learned AAG Mr. Mitesh Amin with learned APP Mr. HK Patel for the respondent.
4. Learned Senior Counsel appearing on behalf of the petitioner submits that initially, the FIR came to be lodged for the offences punishable under Sections 409, 217, 218 and 219 of the IPC and Sections 13(1)(a), 13(1)(b) and 13(2) of the Page 3 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined Prevention of Corruption Act, 1988 (herein after referred to as the "Act"). Learned Sessions Court would further submit that the incident alleged in the FIRs had taken place between the period 06.04.2018 and 30.09.2019 for which the FIRs came to be lodged on 7.10.2023. Thus, the FIR has been lodged after considerable delay i.e. three years for which no explanation is coming forth. Learned Sessions Court would submit that the the property in question was not put to his personal use by the present petitioner, and therefore, the ingredients as mentioned in Section 405 of the Code are not made out against the present petitioner, and therefore, the offence punishable under Section 409 of the Code is also not made out against him.
4.1 Learned Senior Counsel would submit that that the order, which was passed by the present petitioner exercising his powers as a Collector, Gandhinagar was passed by him in the Year- 2019. The said order appears to be the basis for the present FIR. The said order, if as per the case of the prosecution, was not tenable in law, the same ought to have been taken in review by the State Authorities, however, till date, the said orders have not been taken in review and the orders passed by the petitioner has attained the finality. Thus, the basis for lodging the present FIRs appears to be not germane to law. There is no material whatsoever on record indicate about any demand of illegal gratification by the present petitioner nor there is any sufficient material indicating about the acceptance of illegal gratification by the present petitioner. Learned Senior Counsel would further submit that though it is alleged against the petitioner that the petitioner, in the capacity of public servant usurp the powers Page 4 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined and jurisdiction vested in him, has purposefully passed wrong orders during his tenure as Collector, the Government has not bothered to challenge such alleged illegal orders till date. He would further submit that the present petitioner is a senior citizen and there is no flight risk as the petitioner is having movable and immovable properties at Ahmedabad and that the petitioner will cooperate with the investigation if the petitioner is enlarged on anticipatory bail. He would further submit that the entire case is based on documentary evidence which are with the authorities and investigating agency consisting voluminous digital and physical record and as such there is no question of tempering with the evidence and witnesses. He would further submit that the allegations about passing orders after retirement is baseless to prejudice the court as there is no specific mention in the FIR as to which order or orders came into existence after retirement of the petitioner. He would further submit that present FIR being abuse of process of law and filed with mala fide intention by the prosecution, the petitioner should be enlarged on pre-arrest bail. In nutshell, it is the main argument that the present petitioner is nowhere instrumental in commission of offense and his name is involved only with a malafide intention. Learned Senior Counsel has also argued that the affidavit filed by the investigating officer is vengeful and nowhere it is made out that there is even an iota of any evidence against the petitioner of any wrong having been done by him.
4.2 Learned Senior Counsel Mr. Nanavaty would further submit that the petitioner is persecuted instead prosecuted by the State. He would further submit that firstly, impugned FIR Page 5 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined filed against the petitioner alleging three incidents in one FIR. The petitioner was also arrested in first FIR being C.R. No.11216008230197 of 2023 registered with Gandhinagar Sector 7 Police Station; police remand was also asked for investigation of the said FIR on various grounds including the grounds, which are basis of second and third FIRs. He would further submit that the prosecution conveniently has separated three different incidents into three FIRs, which were slated in the first FIR and therefore, it is clearly revealed that the petitioner is persecuted. He would further submit that the petitioner is behind the bar since 11.7.2023, as he has been arrested and his bails are denied in first FIR. Yet, State has not interrogated the petitioner nor has moved the learned Special Court to seek permission for arresting the accused in second and third FIR. So, it is a clear case that the State is persecuting the petitioner.
4.3 Lastly, it is argued by learned Senior Counsel Mr. Nanavaty that the investigating officer has not taken permission required u/s 17A of the Prevention of Corruption Act (Amended), 1988 for commencement of the inquiry and therefore, the inquiry/investigation against the petitioner since justified without following mandatory provision cannot be termed as legally initiated.
4.4 Learned Senior Counsel Mr. Nanavaty would further submit that there can be no second FIR nor fresh investigation on receipt of every subsequent information in respect of same cognizable offence or same occurrence or same incident.
Page 6 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined 4.5. To buttress this submission, learned Senior Counsel Mr. Nanavaty has pressed into service following citations:-
(1) T.T. Antony Vs. State of Kerala reported in (2001) 6 SCC 181 (2) Amitbhai Anilchandra Shah Vs. CBI reported in (2013) 6 SCC 348 4.6 Upon such submission, learned Senior Counsel Mr. Nanavaty requests to grant anticipatory bail to the petitioner.
5. Learned AAG Mr. Mitesh Amin appearing on behalf of the respondent-State has opposed grant of pre-arrest bail by submitting that the orders, which are subject matter of the present FIR, were fraudulent orders passed by the present petitioner intentionally for illegal gratification. The land in question for which the said orders were passed were an unnumbered land belonging to the State Government. The petitioner, by his order, had allotted the said parcel of land to the person, who was not an agriculturist and had done so with an intention of getting illegal gratification. Learned AAG would further submit that the petitioner is at the flight risk, as the other members of the present petitioner, who also appear to be involved in commission of the offence in question have left the country. Learned AAG would further submit that from the place where the present petitioner was residing while absconding, certain documents like passport, jewelleries and hard cash were found. Therefore, there is a reason to believe that the petitioner was in all readiness to flee from the country. Learned AAG submits a list of the properties owned by the petitioner as well as Page 7 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined his other family members. The value of the said properties exceeds Rs.18 crores which is much beyond the known source of income of the present petitioner. Learned AAG would further submit that the order in question which is the basis for lodging the FIR has not attained the finality and the government has decided to take the said order in review and the process for the same is also going on.
5.1 Learned AAG would further submit that in the earlier FIR filed against the petitioner, the petitioner did not remain present before the investigating officer and not cooperated the investigation and therefore, petition cancelling the bail of the petitioner was filed and the concerned learned Sessions Court on 11.9.2023 cancelled the bail of the petitioner on account of breach of condition. He would further submit that to cover up aforesaid breach, in connivance with other police personnel, they have created forged government record showing that the petitioner has not committed any breach and had attended the police station as per the condition imposed by the concerned learned Sessions Court. He would further submit that thus, the petitioner had an audacity to place on record such type of tented records before the Court in a judicial proceedings by joining hands with some police personnel. It is therefore, submitted not to exercise discretion in favour of the petitioner.
5.2 Drawing the attention towards the affidavit filed by the investigating officer at Exh.4 and relying upon the reasons assigned in that affidavit, learned AAG would submit that the petitioner had criminally misused his official capacity in which Page 8 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined he is found involved in mal-practices having been adopted in respect to valuable lands. He has also vehemently argued that different offences are registered against the petitioner of similar kind of criminal activities at different places including Godhra. He has further argued that the petitioner has sent his family members to abroad and there are all likelihood of unearthing a big corrupt practice involved in amassing in-proportionate wealth in name of his family also. Therefore, learned AAG has argued that petitioner being an experienced IAS officer has caused great loss to Government exchequer and present offence being very distinct from the offences earlier registered against him, requires thorough and in-depth investigation.
5.3 Drawing the attention of this Court to para 6 of the impugned order, learned AAG would submit that going through the case papers pertaining to investigation carried out so far, prima facie, it transpires that present petitioner was Collector, Gandhinagar, at relevant time and during his tenure as such he is alleged to have been involved in corrupt practices pertaining to decision making in respect to valuable lands. It is also argued that the petitioner is said to have disposed total 5,904 files from which 424 files are scrutinized and on finding irregular practices there, an FIR was initially lodged with Sector 7 Police Station, Gandhinagar. It is also argued that earlier other FIR filed against the petitioner are in respect to different lands and the lands involved in the present FIRs seems to be different. It is also argued that as per the allegations, the petitioner is involved in malafide decision making pertaining to vast areas of lands which has caused heavy loss to the Government exchequer. Further, it Page 9 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined is also argued that the offences alleged to have been committed by the petitioner are covering different times and different transactions of lands. It is also argued that though the corrupt practices are alleged to have been put into practice by the petitioner in respect to different lands, it transpires that lands are situated at different places under the different outskirts of different villages. Thus, there is no sameness of occurrence.
5.4 To meet with the argument of learned Senior Counsel Mr. Nanavaty that the petitioner is persecuted as three different FIRs are filed for incident stated in the first FIR, learned AAG would submit that looking to the three incidents stated in the first FIR, all three of them were not coming from the same transaction, there was no "sameness of occurrence" in all three incidents and all three incidents are different and distinct.
5.5 As far as issue regarding permission u/s 17A of the Act is concerned, learned AAG would submit that the FIRs have been lodged at the fag end of the inquiry by the gazetted government officer after thorough inquiry made on the revenue side and therefore, prima facie, bar of taking permission u/s 17A of the Act does not arise.
5.6 Upon such submission, learned AAG requests to reject this petition.
6. On perusal the material available on record, in present case, the first FIR came to be lodged on 7.10.2023 for the irregularities allegedly committed by the present petitioner while Page 10 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined he was posted as Collector, Gandhinagar for the period commencing from 06.04.2018 to 30.09.2019. From the record, it appears that irregularities have come to the notice of the State Government, and therefore, the State Government assigned a preliminary inquiry. The Inquiry Officer, after detailed preliminary inquiry, found some substance to the effect that the present petitioner had misused his position for his personal gain and had passed several orders against the provisions of law. It is further surfaced on record that present petitioner obtained bail in Godhara B Division Police Station I Cr.No. 11207002220158/ 2022 in which, he breached the conditions of the bail and even attempted to prepare got up evidences which resulted in cancellation of his bail. Considering this aspect and other glaring set of circumstances as discussed in detail above, it is very much manifest that petitioner can be said to be a very influential person having vast experience of an IAS Officer and looking to the entire surrounding circumstances when the investigation is in very sensitive phase, there are all likelyhood of his influencing the investigation. At this juncture, it may be noted that in several cases, Hon'ble The Apex Court has held that the Courts must draw a delicate balance between liberty of an individual and the need for a fair and free investigation, which must be taken to its logical conclusion.
6.1 In case of Nimmagadda Prasad Vs. CBI reported in 2013(7) SCC 466, the Hon'ble Apex Court has held in para 26 to 28 as under:-
"26. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country's economic structure. Incontrovertibly, Page 11 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat V/s. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:-
"5.....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.."
27. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character 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/State and other similar considerations. It has also to be kept in mind that for the purpose of granting 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 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.
28. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
6.2 In case of Rajesh Chandulal Shah Vs. State of Gujarat reported in 2019(3) GLR 1898, this Court has observed in para 13 to 20, which reads as under:-
"13. If liberty is to be denied to an accused to ensure corruption Page 12 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant - accused of indulging in corruption.
14. Avarice is a common frailty of mankind and Robert Walpole's famous pronouncement that all men have their price, notwithstanding the unsavoury cynicism that it suggests, is not very far from truth. As far back as more than two centuries ago, it was Burke who cautioned: "Among a people generally corrupt, liberty cannot last long". In more recent years, Romain Rolland lamented that France fell because there was corruption without indignation. Corruption has, in it, very dangerous potentialities. Corruption, a word of wide connotation has, in respect of almost all the spheres of our day to day life, all the world over, the limited meaning of allowing decisions and actions to be influenced not by the rights or wrongs of a case but by the prospects of monetary gains or other selfish considerations.
15. If even a fraction of what was the vox pupuli about the magnitude of corruption to be true, then it would not be far removed from the truth, that it is the rampant corruption indulged in with impunity by highly placed persons that has led to economic unrest in this country. If one is asked to name one sole factor that effectively arrested the progress of our society to prosperity, undeniably it is corruption. If the society in a developing country faces a menace greater than even the one from the hired assassins to its law and order, then that is from the corrupt elements at the higher echelons of the Government and of the political parties.
16. In Manoj Narula v. Union of India (2014)9 SCC 1, the Supreme Court held that corruption erodes the fundamental tenets of the rule of law and quoted with approval its judgment in Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra (2013) 4 SCC 642, it was held as under:-
"16......'26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance.'
17. In Subramanian Swamy v. Manmohan Singh and Another (2012) 3 SCC 64, the Supreme Court held as under:-
"68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes Page 13 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption.."
18. In K.C. Sareen v. C.B.I., Chandigarh (2001)6 SCC 584, the Supreme Court observed thus:-
"12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity.."
19. While approving the judgment of Subramanian Swamy v. Director, Central Bureau of Investigation and Anr., (2014)8 SCC 682, rendered by another Constitution Bench in Manoj Narula's case, a Constitution Bench of the Supreme Court, dealing with rampant corruption, observed as under:-
"17. Recently, in Subramanian Swamy v. CBI (2014) 8 SCC 682, the Constitution Bench, speaking through R.M. Lodha, C.J., while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946, which was inserted by Act 45 of 2003, as unconstitutional, has opined that: (SCC pp. 725-26, para 59) "59. It seems to us that classification which is made in Section 6- A on the basis of status in the government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status- Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988." And thereafter, the larger Bench further said: :
(SCC p. 726, para 60) "60. Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences."
And again: (SCC pp. 730-31, paras 71-72) "71.Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can Page 14 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined two public servants against whom there are allegations of corruption of graft or bribe-taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.
72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decisionmaking power does not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation."
18. From the aforesaid authorities, it is clear as noonday that corruption has the potentiality to destroy many a progressive aspect and it has acted as the formidable enemy of the nation."
20. In Neera Yadav v. Central Bureau of Investigation, (2017)8 SCC 757, the Supreme Court observed thus :
"59. Every country feels a constant longing for good governance, righteous use of power and transparency in administration. Corruption is no longer a moral issue as it is linked with the search of wholesome governance and the society's need for re- assurance that the system functions fairly, free from corruption and nepotism. Corruption has spread its tentacles almost on all the key areas of the State and it is an impediment to the growth of investment and development of the country. If the conduct of administrative authorities is righteous and duties are performed in good faith with the vigilance and awareness that they are public trustees of people's rights, the issue of lack of accountability would themselves fade into insignificance.
60. To state the ubiquity of corruption, we may refer to the oft- quoted words of Kautilya, which reads as under:-
"Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least, a bit of the king's revenue. Just as fish moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out (while) taking money (for themselves).
It is possible to mark the movements of birds flying high up in the sky; but not so is it possible to ascertain the movement of government servants of hidden purpose."
[Ref: Kautilya's Arthasastra by R. Shamasastry, Second Edition, Page 77] As pointed out by Paul H. Douglas in his book on "Ethics of Government", "corruption was rife in British public life till a hundred years ago and in USA till the beginning of this century. Nor can it be claimed that it has been altogether eliminated anywhere."
(Ref: Santhanam Committee Report, 1962: Para 2.3).
61. Tackling corruption is going to be a priority task for the Page 15 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined Government. The Government has been making constant efforts to deal with the problem of corruption. However, the constant legislative reforms and strict judicial actions have still not been able to completely uproot the deeply rooted evil of corruption. This is the area where the Government needs to be seen taking unrelenting, stern and uncompromising steps. Leaders should think of introducing good and effective leadership at the helm of affairs; only then benefits of liberalization and various programmes, welfare schemes and programmes would reach the masses. Lack of awareness and supine attitude of the public has all along been found to be to the advantage of the corrupt. Due to the uncontrolled spread of consumerism and fall in moral values, corruption has taken deep roots in the society. What is needed is a reawakening and recommitment to the basic values of tradition rooted in ancient and external wisdom. Unless people rise against bribery and corruption, society can never be rid of this disease. The people can collectively put off this evil by resisting corruption by any person, howsoever high he or she may be."
6.3 In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., AIR 1995 SC 1198, the Supreme Court considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21."
6.4 While deciding the aforesaid cases, the Supreme Court referred to the 41st Report of the Indian Law Commission dated 24th September, 1969 recommending the introduction of a provision for grant of anticipatory bail wherein it has been observed that "power to grant anticipatory bail should be exercised in very exceptional cases".
6.5 In Jai Prakash Singh vs. State of Bihar & Anr., AIR 2012 Page 16 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined SC 1676, the Supreme Court has explained in details the parameters for grant of anticipatory bail. While holding that the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely enroped in the crime, the Supreme Court observed as under :
"16. Ms. Kavita Jha, learned counsel appearing for the accused/respondents has vehemently advanced the arguments on the concept of life and liberty enshrined in Article 21 of the Constitution of India placing a very heavy reliance on the observations made by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312, and submitted that unless the custodial interrogation is warranted in the facts and circumstances of the case, not granting anticipatory bail amounts to denial of the rights conferred upon a citizen/person under Article 21 of the Constitution. We are afraid the law as referred to hereinabove does not support the case as canvassed by learned counsel for the accused respondents. More so, the Constitution Bench of this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, while summing up the law in para 368, interalia, held as under: "Section 20(7) of the TADA Act excluding the application of Section 438 of the Code of Criminal Procedure in relation to any case under the Act and the Rules made thereunder, cannot be said to have deprived the personal liberty of a person as enshrined in Article 21 of the Constitution."
(See also: Narcotics Control Bureau v. Dilip Prahlad Namade (2004) 3 SCC 619).
Therefore, we are not impressed by the submissions so advanced by learned counsel for the accused-
respondents.
17. This Court in Siddharam Satlingappa Mhetre (supra) after considering the earlier judgments of this Court laid down certain factors and parameters to be considered while considering application for anticipatory bail :
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. 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; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.Page 17 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024
NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
viii. 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;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. 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.
123. The 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 that case.
124. 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."
18. 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 therefore. 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 & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305).
19. The case at hand, if considered in the light of aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused.
21. In the facts and circumstances of this case, we are of the considered opinion that it was not a fit case for grant of anticipatory bail. The High Court ought to have exercised its extraordinary jurisdiction following the parameters laid down by this Court in above referred to judicial pronouncements, Page 18 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined considering the nature and gravity of the offence and as the FIR had been lodged spontaneously, its veracity is reliable. The High Court has very lightly brushed aside the fact that FIR had been lodged spontaneously and further did not record any reason as how the pre-requisite conditions incorporated in the statutory provision itself stood fulfilled. Nor did the court consider as to whether custodial interrogation was required. The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order dehors the grounds provided in Section 438 Cr.P.C. itself suffers from non-application of mind and therefore, cannot be sustained in the eyes of law."
6.6 In case of CBI Vs. Santosh Karnani and another reported in 2023 Scale 6-250, the Hon'ble Apex Court observed in para 31 as under:-
"31. The nature and gravity of the alleged offence should have been kept in mind by the High Court. Corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious."
7. Hence, this Court is also of the humble view that time tested principles are that no straight jacket formula can be applied for grant or refusal of anticipatory bail. Therefore, considering the mammoth transactions affected by unlawful orders passed by the petitioner, his complicity is indicative and as such looking to the nature and gravity of the offence in light of the material placed on record, this Court is not inclined to accept the arguments of the learned advocate of the petitioner. The petitioner, who was very senior IAS officer has taken advantage of his experience and position and passed serious of Page 19 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined illegal orders at fag end of his career, just before retirement to achieve mala fide intention and received illegal gratification. Prima facie, this aspect is established from record.
8. As far as three incidents recorded in the first FIR is concerned, it is to be prima facie viewed that they are of different transactions. The principle of "sameness of occurrence" is applied so as to say that three different incidents are recorded in the first FIR. Therefore, it cannot be said that the petitioner is persecuted. However, this is a prima facie view and limited to the extent of present bail application and it shall have no influence over other proceeding. Since the inquiries were conducted prior to registration of the impugned FIRs, submission of not taking permission u/s 17A of the Act would not survive, at this juncture.
9. Thus, the Case Law cited by learned advocate of the petitioner in case of T.T.Antony (supra) and in case of Amitbhai Anilchandra Shah (supra) are not applicable to his arguments.
10. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases. It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the applicant fleeing from justice and other factors to decide whether Page 20 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024 NEUTRAL CITATION R/CR.MA/21424/2023 CAV JUDGMENT DATED: 26/02/2024 undefined it is a fit case for grant of anticipatory bail.
11. In the result, present petitions fail and stand dismissed. Rule discharged.
12. After pronouncement of CAV judgment, but before signing it, learned Senior Counsel Mr. ND Nanavaty appearing with learned advocate Mr. Bharda for the petitioner seeks permission to withdraw present petitions. Learned AAG submits no objection for withdrawal of these petitions. Permission granted. The petitions stand disposed of as withdrawn. Rule discharged.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 21 of 21 Downloaded on : Tue Feb 27 20:44:46 IST 2024