Jharkhand High Court
Madhu Koda @ Madhu Kora vs State Of Jharkhand Thr Cbi on 5 April, 2012
Equivalent citations: 2012 (3) AIR JHAR R 98
Author: H. C. Mishra
Bench: H.C. Mishra
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.9658 of 2011
Madhu Koda @ Madhu Kora ..... Petitioner
Versus
The State of Jharkhand through CBI .... Opposite Party
CORAM: HON'BLE MR. JUSTICE H.C. MISHRA
For the Petitioner : Mr. B. Mukherjee, Advocate
For the State through CBI : Md. Mokhtar Khan, S. C. for the CBI.
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9/5.4.2012Heard learned counsel for the petitioner and learned standing counsel for the CBI.
2. Petitioner has been made accused for the offence under Sections 9 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act and Section 120B of the Indian Penal Code in connection with RC-5(A)/2010/AHD-R.
3. There is allegation against the petitioner to have amassed huge amount of assets and money during his tenure as Minister of Mines and subsequently as the Chief Minister of this State. It may also be mentioned that the bail application of this petitioner was earlier rejected by a detailed order dated 2.7.2010 in B.A. No.3843 of 2010 taking into consideration the allegations against the petitioner. Subsequently, the petitioner had moved before this Court for a provisional bail to allow him to attend the Parliament Session, which was also rejected by order dated 4.11.2010 in B.A. No.8421 of 2010.
4. Brief facts of the case are necessary to be mentioned. A complaint case was filed by one Rajiv Sharma which was registered as Complaint Case No. 01 of 2009 and it was sent for institution of the police case under the provisions of Section 156(3) of the Cr.P.C., on the basis of which, Vigilance P.S. Case No.9 of 2009 was instituted against the petitioner and the other accused persons for the offences under Sections 409, 420, 423, 424, 465 and 120B of the IPC and Sections 7, 10, 11 and 13 of the Prevention of Corruption Act, 1988. It appears that in the said vigilance case, the charge-sheet was submitted against the petitioner for the aforesaid offences. A writ petition was filed bearing no. W.P.(PIL) No.4700 of 2008 and pursuant to the order dated 4.8.2010 passed therein, the investigation of the case was entrusted to CBI, whereupon, the present case was instituted on 11.8.2010.
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5. Thus, it appears that the earlier bail application of this petitioner was rejected by order dated 2.7.2010 in B.A. No.3843 of 2010, prior to the institution of this RC-5(A)/2010/AHD-R by the CBI. Subsequently, after investigation of the case, the CBI filed charge-sheet against the petitioner on 12.11.2010 for the offences under Section 120B of the Indian Penal Code, Section 9 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
6. The petitioner has renewed the prayer for bail submitting that he is in custody since 30.11.2009 and as such, has already spent about 2 years and 5 months in jail.
7. In the earlier order dated 2.7.2010 in B.A. No.3843, the allegations against the petitioner are given in detail, which need not be reproduced again. Suffice would be to mention that the petitioner was functioning as Minister of Mines and Cooperative in the State of Jharkhand from February 2005 to September 2006 and he became Chief Minister of the State of Jharkhand from September 2006 and continued in the Office as such till August 2008. At the time of filing his nomination papers for contesting the Assembly Elections in 2005, he had declared his assets possessed by him and his family members, to be Rs.12,65,615/- only and it is alleged that he surpassed all the limits of corruption during the check period i.e. from February 2005 to August 2008 in collusion with other accused persons namely, Binod Kumar Sinha, Sunil Kumar Sinha and Sanjay Kumar Choudhary, who were his close associates, amassed huge assets, movable and immovable, during the said period not only in India but also in different other countries like Dubai, Thailand, Indonesia, Singapore and Liberia. MOUs were entered during the tenure of the petitioner with 44 big industrial houses in which crores of rupees were given to the petitioner as bribe. The case was investigated by the Vigilance and charge-sheet was submitted against the petitioner, from which it appeared that a sum of Rupees 1,40,00,000 (one crore and forty lakhs) had been found disproportionate to the known source of income of the petitioner and on the basis of the charge-sheet filed by the Vigilance, the bail application of this petitioner was earlier rejected by order dated 2.7.2010.
8. Learned counsel for the petitioner has drawn the attention of this Court towards the charge-sheet filed by the CBI against the petitioner, which would show 3 that the petitioner had purchased 24 decimals of land in the name of one Sunil Kumar Sinha through Binod Sinha at Chaibasa, 2.14 acres of land was purchased for Rs.18.82 lakhs in the name of Sunil Kumar Sinha, another 1.62 acres of land was purchased in the name of Sunil Kumar Sinha for 38.88 lakhs and 76 acres of land was purchased in the name of Sunil Kumar Sinha for 38 lakhs. It is further alleged that illegal gratification of Rupees 13 crores was obtained by Binod Kumar Sinha and Sanjay Kumar Choudhary on behalf of petitioner Madhu Koda by exercising their personal influence, from one M/s Core Group of Mumbai for getting iron mines alloted in Jharkhand. Charge-sheet further shows that though Rs.13 crores was taken as illegal gratification from M/S Core Group of Mumbai, but no recommendation to the Government of India was made by the State of Jharkhand for award of mining lease to M/s Core Steel Industries Private Ltd. citing reasons like non-availability of survey maps and other technical reasons. It is submitted by the learned counsel for the petitioner that these reasons were cited for not recommending the allotment of lease in favour M/s Core Industries Pvt. Ltd. during the tenure of the petitioner as the Chief Minister, and this submission is not controverted by the learned counsel for the CBI. The charge-sheet would further show that when no recommendation was made in favour of M/s Core Group of Mumbai, they demanded back their money from Sanjay Choudhary, who returned back only Rs.3.35 Crores to the owner thereof, but did not return back the balance money stating that it was given to the petitioner. Thus, mainly with the allegation that the petitioner had obtained illegal gratification of such a huge amount, the charge-sheet was filed against the petitioner for the offence under Section 120B of IPC read with Section 9 and Section 13(2) read with Section 13(1)(d) of the Provision of Corruption Act.
9. Learned counsel for the petitioner submitted that Section 9 of the Prevention of Corruption Act is punishable by maximum punishment of five years whereas Section 13 (2) of the Corruption Act is punishable by maximum punishment of seven years and the petitioner, who has already spent a period of about 2 years and 5 months in custody, is thus, entitled to be released on bail. It is further pointed out that other co-accused namely Kamlesh Kumar Singh @ Kamlesh Singh, who was also a minister in the cabinet of the petitioner and who is 4 also a co-accused in this case along with this petitioner, has been granted bail by order dated 13.12.2010 in B.A. No.9220 of 2010 mainly on the ground that the said petitioner had remained in custody for more than one year when he was granted bail by this Court. Learned counsel accordingly, prayed for bail of the petitioner as well.
10. Learned standing counsel for the CBI on the other hand, has opposed the prayer for bail and has submitted that though the charge-sheet has been filed against the petitioner on the basis of the material collected so far, for the offence under Section 9 and Section 13(2) of the Prevention of Corruption Act, but the fact remains that the main case is still under investigation. The CBI has also filed counter affidavit in this case in which the allegation against the petitioner has been repeated and it is stated that the case is of national and international ramification and one of the accused is still at large, who is presently living at Dubai and extradition process is going on with respect to him. It has also been stated in the counter affidavit that investigation of the case is spread over India and several other countries, due to which the investigation is time consuming. Learned standing counsel for CBI relied upon the allegations against the petitioner making out the offences under Sections 409, 420, 423, 465 of the IPC and submitted that investigation with respect to those offences could not be completed within time due to the fact that the investigation of the case is spread over in several countries. Learned counsel for the CBI accordingly, has opposed the prayer for bail of the petitioner. However, the fact remains that no charge-sheet has been filed against the petitioner for those offences till date, even though the petitioner is in custody since 30.11.2009 itself.
11. After having heard learned counsels for both the sides and after going through the record, I find that though there are allegations against the petitioner of amassing huge property, but the fact remains that no charge-sheet has been filed against the petitioner till date by the CBI for the aforementioned offences alleged against the petitioner under the provisions of Indian Penal Code. The charge- sheet has only been filed against the petitioner under Section 120B of the I.P.C., read with Section 9 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Offence under section 9 of the Prevention of Corruption Act is 5 punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years and also with fine, whereas Section 13(2) of the Prevention of Corruption Act is punishable with imprisonment for a term which shall not be less than one year, but which may extend to seven years and also with fine; and the petitioner has already undergone the period of imprisonment of about two years and five months.
12. At this juncture, I would like to quote a decision, relied upon by this Court in B.A. No.9220 of 2010, while granting bail to the co-accused Kamlesh Kumar Singh. The Hon'ble Apex Court in the case of Laloo Prasad @ Laloo Prasad Yadav Vs. State of Jharkhand with Jagannath Mishra, reported in (2002) 9 SCC 372, has laid down as follows:-
"6. As the appellants were already in jail for more than six months in connection with cases arising out of Bihar Fodder Scam a plea was made that the benefit granted to the other accused involved in the same case may be granted to these persons also. From 8.5.2001 onwards various accused involved in Bihar Fodder Scam cases were being released on bail by orders of this Court, if such accused had already been in jail for about six months. This Court did not reject the bail application in respect of any one of the accused arraigned in these series of cases who had remained in jail for six months and above merely on the ground that another offshoot case of the main conspiracy has since been registered or even charge- sheeted against him.
7. The most serious of the offences now pitted against the petitioner is Section 13 of the Prevention of Corruption Act punishable with a maximum sentence of imprisonment for seven years. Having considered the merits of the case including the fact that the petitioners were in jail for a period of more than six months by now (which partly includes the pre-trial detention in other connected cases also) we do not think that further detention of them as pre-trial prisoners would be of any necessity in this case."
13. This view has also been approved by the Apex Court in a recent case of Sanjay Chandra Vs. C.B.I., reported in (2012) 1 SCC 40, while granting bail to the accused in infamous 2G Spectrum case.
14. Placing reliance on the decision in Laloo Prasad's case (supra), this Court had granted bail to the co-accused Kamlesh Singh with certain conditions which are detailed in the order as conditions '(a) to (e)', as the CBI had apprehended 6 that enlarging the said accused on bail might adversely affected the investigation to be made by the CBI. The said apprehension has also been made in the present case by the CBI in its counter affidavit. However, in the aforementioned facts and circumstances, taking into consideration the fact that for the offences under Sections 409, 420, 423, 424 and 465 of the Indian Penal Code, the CBI has not yet filed any charge-sheet against the petitioner in spite of expiry of much more than three months, only in anticipation that sufficient material may come against the petitioner for the said charges also during investigation, the petitioner cannot be detained in jail ad infinitum. Section 167 of the Cr.P.C. clearly prescribes that the detention of an accused is not authorised beyond the period of ninety days if the investigation is not completed within that period in the cases relating to offences punishable with death, imprisonment for life, or for a term of not less than ten years.
15. In view of the fact that the petitioner is already in custody since 30.11.2009 itself, i.e. about two years and five months and the charge-sheet which has been filed against the petitioner by the CBI clearly shows that the maximum punishment that can be awarded to the petitioner is imprisonment for seven years, as also in view of the fact that the other co-accused has already been granted bail by order dated 13.12.2010 in B.A. No.9220 of 2010, I am of the considered view, that the petitioner is entitled to be released on bail.
16. In view of the aforementioned discussions, I am inclined to release the petitioner on bail. Accordingly, the petitioner Madhu Koda @ Madhu Kora is directed to be released on bail, on furnishing bail bond of Rs.50,000/- (Rupees Fifty Thousand) with two sureties of like amount each to the satisfaction of learned Special Judge CBI, Ranchi, in connection with RC-5(A)/2010/AHD-R, with the same conditions '(a) to (e)', as are imposed by this Court in order dated 13.12.2010 in B.A. No.9220 of 2010.
(H. C. Mishra, J) R.Kumar