Delhi High Court
Dharambir Khattar vs State Through Cbi on 19 December, 2003
Equivalent citations: 110(2004)DLT366, 2004(75)DRJ372
JUDGMENT S.K. Agarwal, J.
1. Petitioner-Dharambir Khattar, by this petition under Section 439 read with Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') is seeking bail in RC. No. AC3 2003 A0003/ACU.X dated 29.4.2003 under Sections 7, 8 and 13(2) r/w 13(1)(d) of P.C. Act, 1988.
2. Briefly stated prosecution's allegations are as follows: Petitioner enjoyed very close relationship with several officials of the Delhi Development Authority (for short, "DDA") including its Vice-Chairman-Subhash Sharma; he used to operate as a middle man between DDA officials and private parties. On receipt of information about petitioner's activities, Central Bureau of Investigation (for short 'CBI) kept watch on him and his telephone(s) were kept under electronic surveillance; more than 6000 incoming and outgoing calls were tape recorded. As a follow-up action, CBI registered four cases under the same set of sections, on different dates, at its different units, but concerning different properties. On 26.3.2003 two cases were registered, being RC. No. AC. 12003A 0001/ACU (I) [hereinafter, "Modern School case") and RC. No. AC. 3 A2003/A002/ACU (III) [hereinafter the "DLF case"). The third case was registered on 3.4.2003, RC.DA. 1 2003A 0025/ACR [hereinafter the 'Lift case"); and fourth case was registered on 29.4.2003, RC.AC-3/ 2003A 0003/ACUX [hereinafter the 'Arum Asaf Ali Road case'), in which the bail is now prayed.
3. In Modern School case, it is alleged that on 26.3.2003 Ashok Kapoor, ex-P.S. to the Vice-Chairman DDA was found taking out files from the petitioner's office at 431, Mathura Road, Jungpura Extension, New Delhi; he was checked and several files were seized from his car, including some files pertaining to the cases pending in the Court of S. Mukherjee, a former Judge of this Court, and he was arrested. On 3.4.2003, Subhash Sharma, IAS, Vice-Chairman, DDA, was arrested and he remained in police custody up to 10.4.2003. He was granted bail on 2.6.2003. Amrit Lal Kapoor, Director Modern School; and Anil Vadva were also arrested. Petitioner was arrested on 8.4.2003, while in police custody, he fell sick and was admitted in the AIIMS for several days. Thereafter, petitioner was sent to judicial custody. He was granted statutory bail, on 9.6.2003 under Section 167(2), Cr.P.C. as CBI failed to complete the investigation and file the challan within the prescribed period. Similarly, other accused persons were also granted statutory bail.
4. Some other officials of the DDA, namely Anand Mohan Sharan, IAS, Commissioner (Land Disposal) and Jagdish Chander, Director (Lands), DDA were also interrogated in this case, but were not arrested.
5. In the DLF case, registered on 26.3.2003, Ajay Khanna representative of DLF Universal Ltd., Ravinder Taneja and G.R. Gogia of Ansal Buildwell Limited, were arrested on different dates. Ajay Khanna was granted statutory bail under Section 167(2), Cr.P.C. Subsequently, Anand Mohan Saran, Commissioner (Land Disposal), DDA; Jagdish Chand, Director (Lands), DDA; and Vijay Risbud, Commissioner (Planning), DDA, were also arrested and were granted bail on different dates.
6. Subhash Sharma, Vice-Chairman, DDA was made to participate in the investigation on 8.4.2003, while he was in custody in Modern School case, but he was not arrested in this case. Petitioner was also made to join investigation in this case on 14.4.2003, while he was in judicial custody in the Modern School case, but was also not arrested.
7. In the Lift case, registered on 3.4.2003, Pradeep Kapoor, Ved Prakash Koshak, Yashpal Manocha and Anil Vadwa were arrested on different dates and they were granted statutory bail under Section 167(2), Cr.P.C. because of inability of the CBI to file the challan within the prescribed period.
8. Subhash Sharma was made to participate in the investigation on 9.5.2003 (while he was in custody in the Modern School case), but he was not arrested. Petitioner was made to participate in this case on 9.5.2003, but he was also not arrested.
9. The Aruna Asaf Ali Road case was registered on 29.4.2003. S. Mukherjee was arrested on 30.4.2003, he remained in police custody up till 12.5.2003, on which date he was granted interim bail on the ground of extreme ill-health of his wife, which was later on confirmed. Ashok Kapoor (former P.S. to Vice-Chairman, DDA), Devender Khattar (brother of the petitioner), Vinod Khatri (a hotel owner at Aruna Asaf Ali Road), were also arrested. They were granted statutory regular bail on different dates. Petitioner was arrested in this case on 3.5.2003; he remained in police custody up till 15.5.2003, for 12 days and was granted interim bail on medical grounds vide order dated 16.6.2003 passed in Crl.M.(M) 2488/2003, to enable him to undergo heart surgery. He has undergone by pass surgery and is seeking regularization of the interim bail.
10. Learned Counsel for the petitioner argued that petitioner is a sick person, he has undergone heart surgery at Escorts; he was arrested on 8.4.2003 in Modern School case and was interrogated for several days even while he was in hospital; he was ultimately granted statutory bail on 9.6.2003 as CBI could not complete investigations. Learned Counsel further argued that while petitioner was in custody from 8.4.2003 till 9.6.2003 in Modem School case, he was made to participate in the investigations in "DLF case" on 14.4.2003 and in the "Lift case" on 9.5.2003 but he was not arrested in these two cases as nothing material was found against him. It was argued that petitioner was arrested only in the Aruna Asaf Ali Road case on 3.5.2003, i.e. latter a lapse of about one month) and that petitioner has already suffered pain and agony of the judicial custody in Modern School case from 8.4.2003 to 9.6.2003 (when he was granted statutory bail) and in this case petitioner was in custody from 3.5.2003 to 16.6.2003 when he was granted interim bail. Learned Counsel argued that conduct of CBI in registering different cases on different dates and in different units, under the same set of sections against the petitioner and others, is abuse of the powers vested in them. Reference was made to the observations by the Supreme Court in T.T. Anthony v. State of Kerala, ; and CBI v. Anupam J. Kulkarni, . Learned Counsel also questioned the creditworthiness of the CBI and argued that taped conversation, if proved to be genuine, can, at best, be a corroborative piece of evidence and that petitioner is being made a scape goat. Reference was also made to an article by Soni Sangwan, published in newspaper Hindustan Times dated 15.9.2003, accusing that the CBI is not worthy of credit. In the article implied insinuations were also made against members of the judiciary, allegedly mentioned in the taped conversations. Mr. A.K. Dutt, learned Counsel for CBI argued to the contrary, rebutting the arguments and placed reliance on the tape recorded conversations between the petitioner and the other accused persons, showing petitioner's involvement in the said four cases. The transcripts of the taped conversations were made available to the Court. Learned Counsel vehemently argued that the allegations against CBI and conclusions sought to be drawn are totally baseless. It was argued that looking to the nature of allegations and gravity of the offence, petitioner is not entitled to regular bail.
11. As per prosecution's own showing, the telephones of the petitioner were kept under surveillance for 3-4 months prior to 26.3.2003, on which date the first two cases were registered, Petitioner was arrested in the Modern School case on 8.4.2003 and was granted statutory bail only on 9.6.2003 (after sixty days) as CBI failed to complete investigations, During this petitioner was made to participate in the DLF case on 14.5.2003 and in the Lift case on, 9.5.2003, but was not arrested. The case in hand, (Aruna Asaf Ali Road case), was registered only on 29.4.2003, i.e., more than one month after the registration of the first case. It cannot be disputed that CBI has registered cases on different dates in different units with the same set of sections as a follow-up action on the taped conversations. Some of the accused persons were made to participate in the investigation, while they were in custody in other case, but CBI did not deem it necessary to arrest them. Petitioner was also made to participate in two other cases while he was in custody in the Modern School case, but was not arrested in these cases. This may require explanation during the trial. At present, it is not necessary to determine its effect, as the outcome of this petition is not dependent upon the same. It is left open for the parties to agitate the same at the appropriate stage, if so advised.
12. So far as reference in the said article to other members of the judiciary, allegedly mentioned in the taped conversation, is concerned, the same is imaginary and is in a bad taste. Suffice it to say that transcripts of the above-noted, taped conversations, do not, in any manner, support the observation made in the article. True, it is the fundamental right of the press, to make fair comment and even an outspoken comment in the matter of public interest but while doing so, they should be conscious of the fact that members of judiciary, from the very nature of their office, cannot reply to any such criticisms. After recording these observations; I prefer to put the matter at rest, at this juncture.
13. Coming to the merits of the application, CBI has failed to file the challan within stipulated period of sixty days in the Modern School case and the petitioner was granted bail. In this case also petitioner has already suffered custody for about forty-two days; he is admittedly a sick person; no useful purpose is going to be served by keeping him in custody any more; and co-accused are already on bail. In the facts and circumstances of this case, the petition is allowed and order dated 16.6.2003, passed in Crl.M.(M). 2488/2003 is confirmed. Petitioner is ordered to be released on bail, pending final disposal of the case, on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount, to the satisfaction of the Trial Court, subject to the conditions that he shall not leave the country, without prior permission of the Court; shall not tamper with the evidence; shall surrender his pass-port, if any and shall join investigations as and when required.
14. Any observation made in this order shall not be construed as final opinion on the merits of the case during trial. Petition stands disposed of. Order dusty.