Rajasthan High Court - Jaipur
Shanker Lal Khandelwal vs Union Of India on 1 December, 2016
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JAIPUR BENCH
O R D E R
S.B.CR. MISC. THIRD BAIL APPL.
NO.15377/2016
Shankar Lal Khandelwal S/o Shri Mohan
Lal Khandelwal, by caste Mahajan,
resident of 171, Officers Campus
Extension, Sirsi Road, Jaipur
(Presently lodged in Central Jail, Jaipur)
...Accused-petitioner
Vs.
Union of India through its Special Public
Prosecutor (C.B.I)
.....Respondent.
DATE OF ORDER 01/12/2016
HON'BLE MR.JUSTICE MAHESH CHANDRA SHARMA
Mr. Anand Purohit, Sr. Counsel with
Mr. Kapil Purohit, for the accused
petitioner.
Mr.Ashwini Kumar Sharma, Spl. PP for CBI.
This third bail application has
been filed by the accused petitioner
under Section 439 Cr.P.C for releasing
him on bail in the matter arising out of
FIR No. RC.BD 1/2016/E/0002 P.S. CBI,
BS&FC, New Delhi punishable under
Sections 120B read with 409, 420, 467,
468, 471 IPC and Sec.13(2) read with
2
13(1) (c)(d) of Prevention of Corruption
Act, 1988.
Brief facts of the case are that
an FIR came to be lodged on the basis of
written complaint of Sh. C. Sridharan,
Deputy General Manager, Syndicate Bank,
New Delhi stating therein that a fraud
was committed by branch officials and a
group of customers by resorting to
discounting of fake/forged cheques, fake
bills and arranging overdraft limit
against non-existent LIC policies
aggregating to Rs.1055.78 crores at
Malviya Nagar, Jaipur, MI Road, Jaipur
Branch and Udaipur Branches of Syndicate
Bank. It is averred in the FIR that the
petitioner entered into criminal
conspiracy with his relative Santosh
Kumar Gupta @ S.K.Gupta, the then Chief
Manager, Bharat Bamb and Vipul Kaushik
and others. In pursuance of the said
conspiracy, accused Vipul Kaushik got
issued cheques from his Patanjali Yog
Chikitasalya having an account No.135 at
Rajsamand Urban Cooperative Bank
Nathdwara. The said cheques were forged
3
by showing them as being issued by Temple
Board Nathdwara and were got discounted
by related concerns of Bharat Bamb i.e.
M/s. Mobile Associates, M/s. Everest
Ashiyana and others. In pursuance of the
conspiracy, the said defrauded bank
funds/crime proceeds were transferred to
the account of Shankar Khandelwal and
bank accounts of his associates/relatives
which were further used to reduce bank
liabilities of firms/companies owned by
his relatives. He is the beneficiary of
the bank funds/crime proceeds received
from the discounting of forged cheques
purportedly shown as having been issued
by Temple Board Nathdwara. He knowingly
and dishonestly allowed his bank accounts
for routing the defrauded bank
funds/crime proceeds which were
ultimately utilized by him for
clearing/reducing bank liabilities of
firms owned by his family
members/relatives. He received Rs.50.0
lacs from M/s. Raj Minerals which were
defrauded bank funds/crime proceeds
availed against forged cheques. The said
4
amount was further transferred by him to
Khandelwal Construction and Building on
28.5.2011. He is not only a beneficiary
of the above amount, besides that,
defrauded bank funds to the tune of
Rs.230 crores approximately were credited
in his group companies as received
through the companies controlled by
Bharat Bamb.
It was also mentioned that fake
transactions had been carried out in
Malviya Nagar and M.I. Road Branches and
Udaipur Branches of Syndicate Bank,
Jaipur city and that a group of customers
defrauded the bank by discounting fake
cheques and obtaining over draft limits
against non-existent LIC policies. In the
report, it was inter alia, alleged that
one Satish Kumar Goyal, GM, FGM's Office,
New Delhi, Sanjeev Kumar, DGM, Regional
Office, Jaipur, Desh Raj Meena, Chief
Manager, MI Road Branch, Jaipur, Adarsh
Manchanda, Asstt. GM, Malviya Nagar
Branch, Jaipur, Avdesh Tewari, Asstt. GM,
Udaipur Branch, all being employees of
5
Syndicate Bank along with one Bharat
Bamb, R/o Udaipur, Shankar Khandelwal
(petitioner), Piyush Jain, Vineet Jain,
other customers, companies,
proprietorship, persons involved in said
transaction etc, allegedly entered into a
criminal conspiracy, to defraud the
Syndicate Bank, in particular its
branches situated in Malviya Nagar,
Jaipur, MI Road, Jaipur and at Udaipur.
The fraud allegedly was stated to be
between 2011 to February 2016. It was
alleged that the fraud transpired through
providing of discounting facility of
cheques which were fake, discounting
facility against fake inland bills and
extending the facility of secured
overdraft limits. It was also alleged
that many transactions were settled with
proceeds of new fraudulent transactions.
As far as the mode of discounting
of fake cheques is concerned, the modus
operandi with the aforesaid branches of
Syndicate Bank was to the effect that for
instance, cheques purported to be drawn
6
on Jan Jati Vikas Vibhag, a Government
department, were discounted and proceeds
credited to current accounts of various
parties. There funds were then
transferred to various current accounts
with Udaipur Branch. It is further
alleged that there is no evidence of
dispatch of discounted cheques by
concerning Branch of Syndicate Bank. As
far as Udaipur Branch of Syndicate Bank
is concerned, it was discounting cheques
purportedly issued by Pariyojna Adhikari,
Jan Jati Vikas Vibhag, a Government
Department, drawn on OBC, Kankroli. A
visit to Kankroli revealed that no such
office was located at kankroli. Further a
visit to OBC at Kankroli, revealed that
no such account was maintained with them
and the cheques were found to be fake. It
is also alleged that the discounted fake
cheques were never sent through post for
realization.
It was further alleged in the
complaint that the Malviya Nagar Branch
of Syndicate Bank commenced discounting
7
bills under L.C purported to be issued by
Bank of Baroda, Udaipur with L.C drawn by
Udaipur parties on the customers at
Jaipur with covering bill of exchange
without acceptance, covered the purported
delivery challan and transport documents
without vehicle numbers.
It was also alleged that over
draft facility was extended by the
Malviya Nagar and MI Road Branch of
Syndicate Bank against fake LIC policies,
surrender value certificates and premium
receipts. It was also alleged that the
proceeds of these over drafts were
utilized for adjusting debit balances in
current accounts and these transfer
transactions were completely done from
Udaipur Branch during February, 2016.
On the aforesaid complaint, CBI
proceeded to register a formal FIR
bearing No.RC.BD 1/2016/E/0002 PS-CBI,
BS&FC, New Delhi for offences mentioned
therein. The investigation then was
commenced and during the course of
8
investigation, the accused petitioner was
arrested on 18.3.2016. On behalf of the
petitioner, a bail application was moved
before the trial court, but same was
dismissed vide order dated 12.7.2016.
Against the said order the accused
petitioner moved bail application before
this Court which was dismissed by a
detailed order passed on 07.09.2016 with
the observation that if the petitioner
moves any application before the Court
below under section 54 of the Criminal
Procedure Code, the Court below after due
satisfaction or after hearing both the
parties, or after inquiring from
concerned Medical Officer, or other
responsible persons, will pass the
appropriate order in accordance with law.
Thereafter the petitioner moved
the second bail application before this
Court, which was also dismissed vide
order dated 4.11.2016. On that day, it
was contended on behalf of the
petitioner that the accused petitioner
moved the bail application under section
54 CrPC before the Court below, but till
9
date no order has been passed by the
court below on the aforesaid application.
In such circumstances, while dismissing
the second bail application of the
petitioner, it was observed by this Court
that if the application filed by the
accused petitioner before the Court below
under Section 54 CrPC is pending
consideration, it is expected from the
court below to decide the same in
accordance with law.
Now this third bail application
has been filed on behalf of the
petitioner.
Mr. Anand Purohit assisted by Mr.
Kapil Purohit, appearing on behalf of the
accused petitioner has contended that
there are every chances of delay in
concluding the trial. He has further
contended that the accused petitioner is
suffering from Cancer disease and the
health of the petitioner is deteriorating
on daily basis. He has further contended
that the learned Court below is now
stating the liability of the accused
petitioner to the tune of Rs. 50.00 crore plus
10
interest and declining an offer, which
was made by the petitioner for depositing
Rs. 5.00 crores immediately and remaining
Rs. 45.00 crores in installments. In this
view of the matter, the accused
petitioner be released on bail.
Mr. Ashwini Kumar Sharma, learned
Special Public Prosecutor appearing for
the CBI has opposed the bail application
and has submitted that no new
developments have taken place in the
matter after rejecting the earlier bail
applications by this Court. It has been
further submitted by Mr. Sharma that this
Court in the order dated 7.9.2016 passed
by this Court on the first bail
application has already considered the
disease suffered by the accused
petitioner. Learned Special Public
Prosecutor has further submitted that the
allegations against the present accused
petitioner and other co-accused persons
are of putting the Syndicate Bank to the
loss of approx. one thousand crores by
way of criminal conspiracy.
The learned Special Public Prosecutor
11 has drawn attention of the Court on the relevant part of the order dated 7.9.2016 passed by this Court in the first bail application, which is reproduced as under:
"I have heard learned counsel for the parties and perused the impugned order dated 12.7.2016, relevant portion of which is reproduced as under:
izdj.k ds lexz rF;ks ls Kkr gksrk gS fd vfHk;qDr 'kadj [k.Msoky dh lafyIrrk ds fcuk mlds }kjk bruh cMh jde dks izkIr djuk laHko ugh FkkA Hkkjr ckWEc ,oa 'kadj [k.Msyoky ds cSad [kkrks esa lg vfHk;qDr larks"k dqekj xqIrk }kjk QthZ pSdks] fcyks ,oa QthZ ,yvkbZlh ikWfyfl;ks ds fo:} djksMks dh jkf'k dk iFkkUrj.k fd;k x;kA ;s iFkkarj.k vfHk;qDr 'kadj [k.Msyoky ,oa mlds lacaf/k;ks ds [kkrksa esa fd, tkus ds nLrkost orZeku vuqla/kku vf/kdkjh }kjk layXu fd, gSA bl izdkj "kM;a= ds rgr izkIr dh xbZ jkf'k dk iz;ksx vfHk;qDr 'kadj [k.Msyoky }kjk mldh dUVªD'ku daiuh esa fd;k x;kA bl izdkj djhc 230 djksM :i, dh jkf'k dk iFkkarj.k vfHk;qDr 'kadj [k.Msyoky dh daiuh dks Qk;nk igqapkus ds fy, vfHk;qDrx.k }kjk fd;k x;kA vuqla/kku vf/kdkjh }kjk vkjksii= ds lkFk ,sls nLrkost ladfyr fd, gS ftlls vfHk;qDr Hkkjr ckWEc o 12 vfHk;qDr 'kadj [k.Msyoky }kjk vkilh lgefr ls "kM;a= djrs gq, vijk/k dkfjr fd;k tkuk izFke n`"V;k izdV gks jgk gSA ;g vo/kkj.kk ysus esa U;k;ky; dks ladksp ugh gS fd vfHk;qDr 'kadj [k.Msyoky dks ;g Kkr Fkk fd O;fDrxr :i ls foiqy dkSf'kd ;k Hkkjr ckWEc 200 djksM :i, tSlh cMh jkf'k dk _.k Lo;a ds L=ksr ls mls miyC/k djkus esa l{ke ugh FksA ftu eseksjs.Me vkWQ v.MjLVsfMax dk gokyk fo}ku vf/koDrk } kjk cgl ds dze esa fn;k x;k gS] ;s nLrkost lk/kkj.k isij ij rS;kj fd, x, nLrkost gSa ftudh lR;rk ,oa izekf.kdrk ds laca/k esa fdlh izdkj dh iqf"V ugha gks jgh gSA vfHk;qDr 'kadj [k.Msyoky }kjk foiqy dkSf'kd ,oa Hkkjr ckWEc ds vfrfjDr Hkh laO;ogkj fd;k x;k gS rFkk mlds [kkrksa esa eSllZ eksckbZy ,slksfl,V~l] ,ojsLV vkf'k;kuk] jkt feujYl] inekorh ,aVjizkbZtst] eSllZ jkes'oje] eSllZ vfjgar] jkuw eksVlZ vkfn daifu;ksa ls Hkkjh jkf'k;ksa dk iFkkarj.k fd;k x;k] ftl laca/k esa fdlh izdkj ds eseksjs.Me vkWQ v.MjLVsfMax dks vfHk;qDr }kjk izdV ugha fd;k x;k gSA vuqla/kku esa ;g Hkh Kkr gqvk gS fd vfHk;qDr Hkkjr ckWEc }kjk eseksjs.Me vkWQ v.MjLVsfMax fnukad 30-11-2013 ij mlds gLrk{kj gksus dh Li"V rkbZn ugha dh xbZ gS rFkk lk{kh d`".k dqekj 'kekZ }kjk mlds c;kuksa esa ;g ys[kc} djok;k x;k fd ;g nLrkost nhikoyh R;kSgkj ds djhc o"kZ 2015 esa fu"ikfnr gqvk gS rFkk ftl izdkj ;g Kkr gksrk gS fd dkykUrj esa 13 iwoZ frfFk dk nLrkost fujksfir fd;k x;k gSA d`".k dqekj 'kekZ lk{kh dk dFku gS fd tc mlus nLrkost gLrk{kfjr djs Fks] ml le; ;g uksVjkbZt ugha Fks rFkk mlds }kjk gLrk{kj o"kZ 2015 esa fd, x, Fks tcfd vc layXu nLrkost fnukad 30-11-2013 dks uksVjkbZt gksuk izdV gks jgk gSA blls bl nLrkost dh lR;rk ,oa izekf.kdrk lansgkLin izrhr gksrh gSAizdj.k esa izdV gks jgk gS fd /kesUnz ekBs vfHk;qDr 'kadj [k.Msyoky dh gksVy iyd iSjkMkbZt dk deZpkjh gSA d`".k dqekj 'kekZ }kjk ;g ys[kc} djok;k x;k gS fd fnukad 18-02-2016 dks Hkkjr ckWEc }kjk mls VsyhQksu ij lEidZ dj fuosnu fd;k x;k fd 10 O;fDr;ksa dh cSad vdkm.V [kksyus ds fy, vko';drk gS ftl ij mlus 'kadj [k.Msyoky ls lEidZ fd;k rFkk 'kadj [k.Msyoky ds funsZ'k ij mlus mu O;fDr;ksa dks cqyk;k ftudk gkmflax yksu py jgk Fkk rFkk ftl yksu vdkm.V dks 'kadj [k.Msyoky }kjk bLrseky fd;k x;k rFkk 'kadj [k.Msyoky gh bl _.k dh fd'rksa dk Hkqxrku dj jgk gSA dqN O;fDr;ksa dks 'kadj [k.Msyoky }kjk cqyok;k x;k vkSj mUgksus egs'k dqekj xqIrk eSustj flafMdsV cSad] jfo /kuoky tks fd Hkkjr ckWEc dk deZpkjh Fkk] dh mifLFkfr esa nLrkost gLrk{kfjr djsA bl izdkj izdj.k esa lafyIr jgs fofHkUu vfHk;qDrksa dh Hkwfedk ds fo"k;
esa vuqla/kku tkjh gS ftlesa vfHk;aqDr 'kadj [k.Msyoky dh daiuh o laLFkkuks ls lacaf/kr deZpkjh Hkh lfEefyr gSA mijksDr rF;ksa o 14 ifjfLFkfr;ksa esa vfHk;qDr 'kadj [k.Msyoky dk izdj.k esa lfEefyr u gksuk rFkk ek= okf.kfT;d laO;ogkj ds ekeys esa izkbZosV O;fDr;ksa Hkkjr ckWEc o foiqy dkSf'kd ls 200 djksM :i, tSlh jkf'k;ksa dk Lo;a ds [kkrksa esa izkIr djuk xaHkhj lansgkLin fLFkfr dks izdV djrk gS rFkk vfHk;qDr dh Hkwfedk ds fo"k; esa ladfyr nLrkostksa ls mldh vijk/k esa lafyIrrk izFke n`"V;k nf'kZr gksrh gSA izkFkhZ&vfHk;qDr dh vksj ls izLrqr U;kf;d n`"VkUr ds rF; gLrxr izdj.k ds rF;ksa ls fHkUu gksus ls vfHk;qDr dh dksbZ enn djrs izrhr ugha gksrsA mijksDr foospuk dh jks'kuh esa izkFkhZ&vfHk;qDr dks tekur dk ykHk fn;k tkuk mfpr izrhr ugh gksrkA Further, I have gone through the judgments cited by both the parties, as stated above, i.e. Sanjay Chandra Vs. Central Bureau of Investigation (2012)1 SCC 40 and, State of Gujarat v. Mohanlal Jitamalji Porwal and another, (AIR 1987 1321), Gajanand Aggarwal Vs. State of Orissa 2007 AIR SCW 2857, Sudha Verma Vs. State of Uttar Pradesh, AIR 2007 SC(Supp)779, and Himanshu Chandravardhan Desai & others Vs. State of Gujrat, AIR 2006 SC 179 and also 2012 Cr.L.J.1519 Dr.Subramanian Swamy Vs. Dr. Manmohan Singh and anr.
15Prima facie, it is admitted that the accused petitioner along with other co-accused persons have committed fraud of Rs.1055 crores approximately, and charge- sheet has been filed. Further, it is admitted fact that the sentence punishable under Sec.467 Cr.P.C is of life imprisonment, and the offence punishable under Secs.13(2) read with Sec.13(1)(c)
(d) of Prevention of Corruption Act, 1988 are triable only by Special Judge, CBI Cases, in such circumstances, looking to the aforesaid facts & circumstances of the case, specially the seriousness of charge, the nature of accusation and severity of punishment in the case of conviction, the evidence in support of the charge, and the fact that the petitioner is involved in a very serious matter of conspiracy, cheating and defraud to public institutions in a systematic manner, as also action of the petitioner may jeopardize the economy of the country also, I am not inclined to accept this bail application.
Accordingly, looking to the facts and circumstances of the case and the findings arrived at 16 by learned court below as quoted herein above, the learned court below is found to have dealt with each and every aspect of the matter, and has rightly passed the impugned order. I am in unison with the findings arrived at by the learned court below. Hence, in view of above, I do not think it just and proper to accept this bail application. The bail application is hereby dismissed.
However, if the petitioner moves any application before the court below under Sec.54 of the Criminal Procedure Code, the court below after due satisfaction or after hearing both the parties, or after inquiring from concerned Medical Officer, or other responsible persons, will pass the appropriate order in accordance with law."
He has further drawn the attention of this Court on the order dated 4.11.2016 passed by this court while rejecting the second bail
application of the petitioner, which is reproduced as under:-
17"This second bail application has been filed by the accused petitioner under Section 439 Cr.P.C for releasing him on bail arising out of FIR No. RC.BD 1/2016/E/0002 P.S. CBI, BS&FC, New Delhi punishable under Sections 120B read with 409, 420, 467, 468, 471 IPC and Sec.13(2) read with 13(1) (c)(d) of Prevention of Corruption Act, 1988.
Brief facts of the case are that an FIR came to be lodged on the basis of written complaint of Sh. C. Sridharan, Deputy General Manager, Syndicate Bank, New Delhi stating therein that a fraud was committed by branch officials and a group of customers by resorting to discounting of fake/forged cheques, fake bills and arranging overdraft limit against non-existent LIC policies aggregating to Rs.1055.78 crores at Malviya Nagar, Jaipur, MI Road, Jaipur Branch and Udaipur Branches of Syndicate Bank. It is averred in the FIR that the petitioner has entered into criminal conspiracy with his relative Santosh Kumar Gupta @ S.K.Gupta, the then Chief Manager, Bharat Bamb and Vipul Kaushik and others. In pursuance of the said conspiracy, accused Vipul Kaushik got issued cheques from his Patanjali Yog Chikitasalya having an account No.135 at Rajsamand Urban Cooperative Bank Nathdrawar. The said cheques were forged by showing them as being issued by Temple Board Nathdwara and were got discounted by related concerns of Bharat Bamb i.e. M/s. Mobile Associates, M/s. Everest Ashiyana and others. In pursuance of the conspiracy, the said defrauded bank funds/crime proceeds were transferred to the account of Shankar Khandelwal and bank accounts of his associates/relatives which were further used to reduce bank 18 liabilities of firms/companies owned by his relatives. He is the beneficiary of the bank funds/crime proceeds received from the discounting of forged cheques purportedly shown as having been issued by Temple Board Nathdwara. He knowingly and dishonestly allowed his bank accounts for routing the defrauded bank funds/crime proceeds which were ultimately utilized by him for clearing/reducing bank liabilities of firms owned by his family members/relatives. He received Rs.50.0 lacs from M/s. Raj Minerals which were defrauded bank funds/crime proceeds availed against forged cheques. The said amount was further transferred by him to Khandelwal Construction and Building on 28.5.2011. He is not only a beneficiary of the above amount, besides that, defrauded bank funds to the tune of Rs.230 crores approximately were credited in his group companies as received through the companies controlled by Bharat Bamb.
It was also mentioned that fake transactions had been carried out in Malviya Nagar and M.I.Road Branches and Udaipur Branches of Syndicate Bank, Jaipur city and that a group of customers defrauded the bank by discounting fake cheques and obtaining over draft limits against non-existent LIC policies. In the report, it was inter alia, alleged that one Satish Kumar Goyal, GM, FGM's Office, Vnew Delhi, Sanjeev Kumar, DGM, Regional Office, Jaipur, Desh Raj Meena, Chief Manager, MI Road Branch, Jaipur, Adarsh Manchanda, Asstt. GM, Malviya Nagar Branch, Jaipur, Avdesh Tewari, Asstt. GM, Udaipur Branch, all being employees of Syndicate Bank along with one Bharat Bamb, R/o Udaipur, Shankar Khandelwal (petitioner), Piyush Jain, Vineet Jain, 19 other customers, companies, proprietorship, persons involved in said transaction etc, allegedly entered into a criminal conspiracy, to defraud the Syndicate Bank, in particular its branches situated in Malviya Nagar, Jaipur, MI Road, Jaipur and at Udaipur. The fraud allegedly was stated to be between 2011 to February 2016. It was alleged that the fraud transpired through providing of discounting facility of cheques which were fake, discounting facility against fake inland bills and extending the facility of secured overdraft limits. It was also alleged that many transactions were settled with proceeds of new fraudulent transactions.
As far as the mode of discounting of fake cheques is concerned, the modus operandi with the aforesaid branches of Syndicate Bank was to the effect that for instance, cheques purported to be drawn on Jan Jati Vikas Vibhag, a Government department, were discounted and proceeds credited to current accounts of various parties. There funds were then transferred to various current accounts with Udaipur Branch. It is further alleged that there is no evidence of dispatch of discounted cheques by concerning Branch of Syndicate Bank. As far as Udaipur Branch of Syndicate Bank is concerned, it was discounting cheques purportedly issued by Pariyojna Adhikari, Jan Jati Vikas Vibhag, a Government Department, drawn on OBC, Kankroli. A visit to Kankroli revealed that no such office was located at kankroli, further a visit to OBC at Kankroli, revealed that no such account was maintained with them and the cheques were found to be fake. It is also alleged that the discounted fake cheques were never sent through post for realization.20
It was further alleged in the complaint that the Malviya Nagar Branch of Syndicate Bank commenced discounting bills under L.C purported to be issued by Bank of Baroda, Udaipur with L.C drawn by Udaipur parties on the customers at Jaipur with covering bill of exchange without acceptance, covered the purported delivery challan and transport documents without vehicle numbers.
It was also alleged that over draft facility was extended by the Malviya Nagar and MI Road Branch of Syndicate Bank against fake LIC policies, surrender value certificates and premium receipts. It was also alleged that the proceeds of these over drafts were utilized for adjusting debit balances in current accounts and these transfer transactions were completely done from Udaipur Branch during February, 2016.
On the aforesaid complaint, CBI proceeded to register a formal FIR bearing No.RC.BD 1/2016/E/0002 PS-CBI, BS&FC, New Delhi for offences mentioned therein. The investigation then was commenced and during the course of investigation, the accused petitioner was arrested on 18.3.2016. On behalf of the petitioner, a bail application was moved before the trial court, but same was dismissed vide order dated 12.7.2016. Against the said order the accused petitioner moved bail application before this Court which was dismissed by a detailed order passed on 07.09.2016.
Mr. Anand Purohit assisted by Mr. Kapil Purohit, appearing on behalf of the accused petitioner has submitted that the accused petitioner is suffering from carcinoma (Rt.) buccal mucosa (Cancer) 21 disease which is a critical disease and he has been advised for Surgery by the Sawai Man Singh Hospital, Jaipur. Counsel has further submitted that vide order dated 7.9.2016 passed on the first bail application it was directed that if the accused petitioners moves any application before the court below under section 54 of the Criminal Procedure Code, the court below after due satisfaction or after hearing both the parties, or after inquiring from concerned Medical Officer, or other responsible persons, will pass the appropriate order in accordance with law. Counsel has further submitted that thereafter the accused petitioner moved an application under section 54 Cr.P.C before the court below but till date no order has been passed by the court below on the aforesaid application. Counsel in support of his case has placed reliance upon para No. 19 of the Judgment delivered by the Hon'ble Apex Court in the case of Dipak Shubhashchandra Mehta Vs. C.B.I. & Anr., Criminal Appeal No. 348 of 2012 (Arising out of S.L.P (Crl.) No. 8995 of 2011) decided on 10.2.2012, in which the Hon'ble Apex Court has been pleased to observe as under:
19) As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence 22 of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safe guard the interest of the CBI."
Thus, looking to the above submissions, the accused petitioner be released on bail.
Mr. Ashwini Kumar Sharma, learned Special Public Prosecutor appearing for the CBI has opposed the bail application and has submitted that no new developments have taken place in the matter after rejecting first bail application by this Court on 7.9.2016. It has been further submitted by Mr. Sharma that this Court in the order dated 7.9.2016 passed by this Court on the first bail application has already considered the disease suffered by the accused petitioner. Learned Special Public Prosecutor has further submitted that the allegations against the present accused petitioner and other co-accused persons are of putting the Syndicate Bank to the loss of approx. one thousand crores by way of criminal conspiracy. Learned Special Public Prosecutor with regard to para No. 19 of the Judgment delivered by the Hon'ble Apex Court in the case of Dipak Shubhashchandra Mehtra (supra) has submitted that in that case the investigating agency completed the investigation and submitted the charge- sheet but in the case in hand the 23 investigation against the accused petitioner is still pending. Thus the fact of the case is hand as also the case of Dipak Shubhashchandra Mehtra (supra) are different and same cannot be made applicable to the facts of the present case. The learned Special Public Prosecutor has drawn attention of the Court to the earlier order dated 7.9.2016 passed by this Court in the first bail application, which is reproduced as under:
"I have heard learned counsel for the parties and perused the impugned order dated 12.7.2016, relevant portion of which is reproduced as under:
izdj.k ds lexz rF;ks ls Kkr gksrk gS fd vfHk;qDr 'kadj [k.Msoky dh lafyIrrk ds fcuk mlds }kjk bruh cMh jde dks izkIr djuk laHko ugh FkkA Hkkjr ckWEc ,oa 'kadj [k.Msyoky ds cSad [kkrks esa lg vfHk;qDr larks"k dqekj xqIrk }kjk QthZ pSdks] fcyks ,oa QthZ ,yvkbZlh ikWfyfl;ks ds fo:} djksMks dh jkf'k dk iFkkUrj.k fd;k x;kA ;s iFkkarj.k vfHk;qDr 'kadj [k.Msyoky ,oa mlds lacaf/k;ks ds [kkrksa esa fd, tkus ds nLrkost orZeku vuqla/kku vf/kdkjh }kjk layXu fd, gSA bl izdkj "kM;a= ds rgr izkIr dh xbZ jkf'k dk iz;ksx vfHk;qDr 'kadj [k.Msyoky }kjk mldh dUVªD'ku daiuh esa fd;k x;kA bl izdkj djhc 230 djksM :i, dh jkf'k dk iFkkarj.k vfHk;qDr 'kadj [k.Msyoky dh daiuh dks Qk;nk igqapkus ds fy, vfHk;qDrx.k }kjk fd;k x;kA vuqla/kku vf/kdkjh }kjk vkjksii= ds lkFk ,sls nLrkost ladfyr fd, gS ftlls vfHk;qDr Hkkjr ckWEc o vfHk;qDr 'kadj [k.Msyoky }kjk vkilh lgefr ls "kM;a= djrs gq, vijk/k dkfjr fd;k tkuk izFke n`"V;k izdV gks jgk gSA ;g vo/kkj.kk ysus esa U;k;ky; dks ladksp ugh gS fd vfHk;qDr 'kadj 24 [k.Msyoky dks ;g Kkr Fkk fd O;fDrxr :i ls foiqy dkSf'kd ;k Hkkjr ckWEc 200 djksM :i, tSlh cMh jkf'k dk _.k Lo;a ds L=ksr ls mls miyC/k djkus esa l{ke ugh FksA ftu eseksjs.Me vkWQ v.MjLVsfMax dk gokyk fo}ku vf/koDrk } kjk cgl ds dze esa fn;k x;k gS] ;s nLrkost lk/kkj.k isij ij rS;kj fd, x, nLrkost gSa ftudh lR;rk ,oa izekf.kdrk ds laca/k esa fdlh izdkj dh iqf"V ugha gks jgh gSA vfHk;qDr 'kadj [k.Msyoky }kjk foiqy dkSf'kd ,oa Hkkjr ckWEc ds vfrfjDr Hkh laO;ogkj fd;k x;k gS rFkk mlds [kkrksa esa eSllZ eksckbZy ,slksfl,V~l] ,ojsLV vkf'k;kuk] jkt feujYl] inekorh ,aVjizkbZtst] eSllZ jkes'oje] eSllZ vfjgar] jkuw eksVlZ vkfn daifu;ksa ls Hkkjh jkf'k;ksa dk iFkkarj.k fd;k x;k] ftl laca/k esa fdlh izdkj ds eseksjs.Me vkWQ v.MjLVsfMax dks vfHk;qDr }kjk izdV ugha fd;k x;k gSA vuqla/kku esa ;g Hkh Kkr gqvk gS fd vfHk;qDr Hkkjr ckWEc }kjk eseksjs.Me vkWQ v.MjLVsfMax fnukad 30-11-2013 ij mlds gLrk{kj gksus dh Li"V rkbZn ugha dh xbZ gS rFkk lk{kh d`".k dqekj 'kekZ }kjk mlds c;kuksa esa ;g ys[kc} djok;k x;k fd ;g nLrkost nhikoyh R;kSgkj ds djhc o"kZ 2015 esa fu"ikfnr gqvk gS rFkk ftl izdkj ;g Kkr gksrk gS fd dkykUrj esa iwoZ frfFk dk nLrkost fujksfir fd;k x;k gSA d`".k dqekj 'kekZ lk{kh dk dFku gS fd tc mlus nLrkost gLrk{kfjr djs Fks] ml le; ;g uksVjkbZt ugha Fks rFkk mlds }kjk gLrk{kj o"kZ 2015 esa fd, x, Fks tcfd vc layXu nLrkost fnukad 30-11-2013 dks uksVjkbZt gksuk izdV gks jgk gSA blls bl nLrkost dh lR;rk ,oa izekf.kdrk lansgkLin izrhr gksrh gSAizdj.k esa izdV gks jgk gS fd /kesUnz ekBs vfHk;qDr 'kadj [k.Msyoky dh gksVy iyd iSjkMkbZt dk deZpkjh gSA d`".k dqekj 'kekZ }kjk ;g ys[kc} djok;k x;k gS fd fnukad 18-02-2016 dks Hkkjr ckWEc }kjk mls VsyhQksu ij lEidZ dj fuosnu fd;k x;k 25 fd 10 O;fDr;ksa dh cSad vdkm.V [kksyus ds fy, vko';drk gS ftl ij mlus 'kadj [k.Msyoky ls lEidZ fd;k rFkk 'kadj [k.Msyoky ds funsZ'k ij mlus mu O;fDr;ksa dks cqyk;k ftudk gkmflax yksu py jgk Fkk rFkk ftl yksu vdkm.V dks 'kadj [k.Msyoky }kjk bLrseky fd;k x;k rFkk 'kadj [k.Msyoky gh bl _.k dh fd'rksa dk Hkqxrku dj jgk gSA dqN O;fDr;ksa dks 'kadj [k.Msyoky }kjk cqyok;k x;k vkSj mUgksus egs'k dqekj xqIrk eSustj flafMdsV cSad] jfo /kuoky tks fd Hkkjr ckWEc dk deZpkjh Fkk] dh mifLFkfr esa nLrkost gLrk{kfjr djsA bl izdkj izdj.k esa lafyIr jgs fofHkUu vfHk;qDrksa dh Hkwfedk ds fo"k;
esa vuqla/kku tkjh gS ftlesa vfHk;aqDr 'kadj [k.Msyoky dh daiuh o laLFkkuks ls lacaf/kr deZpkjh Hkh lfEefyr gSA mijksDr rF;ksa o ifjfLFkfr;ksa esa vfHk;qDr 'kadj [k.Msyoky dk izdj.k esa lfEefyr u gksuk rFkk ek= okf.kfT;d laO;ogkj ds ekeys esa izkbZosV O;fDr;ksa Hkkjr ckWEc o foiqy dkSf'kd ls 200 djksM :i, tSlh jkf'k;ksa dk Lo;a ds [kkrksa esa izkIr djuk xaHkhj lansgkLin fLFkfr dks izdV djrk gS rFkk vfHk;qDr dh Hkwfedk ds fo"k; esa ladfyr nLrkostksa ls mldh vijk/k esa lafyIrrk izFke n`"V;k nf'kZr gksrh gSA izkFkhZ&vfHk;qDr dh vksj ls izLrqr U;kf;d n`"VkUr ds rF; gLrxr izdj.k ds rF;ksa ls fHkUu gksus ls vfHk;qDr dh dksbZ enn djrs izrhr ugha gksrsA mijksDr foospuk dh jks'kuh esa izkFkhZ&vfHk;qDr dks tekur dk ykHk fn;k tkuk mfpr izrhr ugh gksrkA Further, I have gone through the judgments cited by both the parties, as stated above, i.e. Sanjay Chandra Vs. Central Bureau of Investigation (2012)1 SCC 40 and, State of Gujarat v. Mohanlal Jitamalji Porwal and another, (AIR 1987 1321), Gajanand Aggarwal Vs. State of Orissa 2007 26 AIR SCW 2857, Sudha Verma Vs. State of Uttar Pradesh, AIR 2007 SC(Supp)779, and Himanshu Chandravardhan Desai & others Vs. State of Gujrat, AIR 2006 SC 179 and also 2012 Cr.L.J.1519 Dr.Subramanian Swamy Vs. Dr. Manmohan Singh and anr.
Prima facie, it is admitted that the accused petitioner along with other co-accused persons have committed fraud of Rs.1055 crores approximately, and charge- sheet has been filed. Further, it is admitted fact that the sentence punishable under Sec.467 Cr.P.C is of life imprisonment, and the offence punishable under Secs.13(2) read with Sec.13(1)(c)
(d) of Prevention of Corruption Act, 1988 are triable only by Special Judge, CBI Cases, in such circumstances, looking to the aforesaid facts & circumstances of the case, specially the seriousness of charge, the nature of accusation and severity of punishment in the case of conviction, the evidence in support of the charge, and the fact that the petitioner is involved in a very serious matter of conspiracy, cheating and defraud to public institutions in a systematic manner, as also action of the petitioner may jeopardize the economy of the country also, I am not inclined to accept this bail application.
Accordingly, looking to the facts and circumstances of the case and the findings arrived at by learned court below as quoted herein above, the learned court 27 below is found to have dealt with each and every aspect of the matter, and has rightly passed the impugned order. I am in unison with the findings arrived at by the learned court below. Hence, in view of above, I do not think it just and proper to accept this bail application. The bail application is hereby dismissed.
However, if the petitioner moves any application before the court below under Sec.54 of the Criminal Procedure Code, the court below after due satisfaction or after hearing both the parties, or after inquiring from concerned Medical Officer, or other responsible persons, will pass the appropriate order in accordance with law."
Thus looking to the aforesaid submissions, the second bail application filed by the accused petitioner be dismissed.
I have heard learned counsel for the accused petitioner, learned Special Public Prosecutor appearing for the CBI and carefully scanned the entire material made available to me.
Without commenting any opinion on the merits and demerits of the case but looking to the fact that no new developments have taken place after rejecting first bail application by this Court on 7.9.2016, at this stage it is not a fit case where indulgence of bail can be granted to the accused petitioner under section 439 Cr.P.C.
The second bail application filed by the accused petitioner under section 439 Cr.P.C is accordingly dismissed. If 28 the application filed by the accused petitioner before the court below under section 54 Cr.P.C is pending consideration, it is expected from the court below to decide the same in accordance with law"
I have heard learned counsel for the accused petitioner, learned Special Public Prosecutor appearing for the CBI and carefully scanned the entire material made available to me including the order dated 23.11.2016 passed by the trial court on the IInd bail application filed by the petitioner.
For ready reference, Section 54 of the Code Of Criminal Procedure, 1973 is reproduced as under:
54. Examination of arrested person by medical practitioner at the request of the arrested person.
When a person who is arrested, whether on a charge or otherwise alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the 29 arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.
A plain reading of Section 54 of CrPC suggests that it is the Magistrate concerned who decides as to from which registered medical practitioner, the accused is to be treated and the accused has no option to get the treatment from his own choice Doctor.
Learned trial court while rejecting the second bail application of the petitioner, vide order dated 23.11.2016 recorded that after obtaining the opinion of the medical board, the jail authorities presented the accused in Oncology Department of SMS Hospital. The accused petitioner was taken to Birla Cancer Center on 16.8.2016 and on 25.10.2016, the Doctor concerned advised the petitioner to come on 28.11.2016 for surgery, but the accused petitioner wanted to get the treatment from the same 30 Doctor, who operated him in the year 2003 for Carcinoma in Mouth at Bombay Hospital and Medical Research Center, Jaipur.
Under any law there is no provision for the accused persons to get the treatment from the Doctor of their choice.
Furthermore, nothing was found to have been mentioned as to who was the Doctor and from whom he wished to get the treatment. Rather the application dated 14.7.2016 was about getting treatment from Max Hospital, Gurgaon for backbone ailment and not for cancer.
It has also been mentioned by the trial court in its order that the petitioner accused cannot throw his weight by willingness to tender 50 crores as he is not involved in any simplicitor money transaction, rather he is involved in a big scam and in this view of the matter, the learned trial court dismissed the IInd bail application of the petitioner.
31Looking to the facts and circumstances of the case and the fact
that no new developments have taken place after rejecting the earlier bail applications, without expressing any opinion on the merits and demerits of the case, I am not inclined to grant indulgence of bail to the accused petitioner under section 439 Cr.P.C.
Rather, I am in unison with the findings arrived at by the learned trial court.
Accordingly, the third bail application filed by the accused
petitioner under section 439 Cr.P.C is dismissed. However, the petitioner will be at liberty to file a fresh bail application before the trial court after change of circumstances.
(MAHESH CHANDRA SHARMA)J. DK