Karnataka High Court
Shezad Afzal Khan vs State Of Karnataka on 17 October, 2014
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17th DAY OF OCTOBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.4562/2014
BETWEEN:
SHEHZAD AFZAL KHAN
INDIAN, AGED 40 YEARS,
R/O-905/906, UNITED TOWER,
VAISHALINAGAR,
JOGESHWARI (WEST),
MUMBAI,
AND HAVING OFFICE AT TGLS,
OSHIWARA LINK ROAD,
BHAGAT SINGH NAGAR-2,
NEAR VIBGYOR SCHOOL,
GOREGAON (WEST)
MUMBAI-400 104. ...PETITIONER
(BY SRI S.S NAGANAND, SR. ADV.
FOR SRI. SRIRANGA S)
AND
STATE OF KARNATAKA
AT THE INSTANCE OF LOKAYUKTHA POLICE,
MYSORE ZILLA POLICE STATION,
MYSORE.
KARNATAKA-570 001. ... RESPONDENT
(By SRI. VENKATESH P DALWAI )
THIS CRL.P IS FILED U/S.438 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO ENLARGE THE
PETR. ON BAIL IN THE EVENT OF HIS ARREST IN CRIME
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NO.7/14 OF MYSORE LOKAYUKTHA P.S., MYSORE, FOR
THE OFFENCS P/U/S 13(1)(C)(D)(ii) AND (iii) OF THE
PREVENTION OF CORRUPTION ACT, R/W SEC. 420 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused No.9 under Section 438 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 13(1)(c)(d)(ii) and (iii) of the prevention of Corruption Act, 1988 and Section 420 of IPC, registered in respondent - police station Crime No.7/2014.
2. Heard the arguments of the learned Senior counsel appearing for the petitioner/accused No.9 and also the learned High Court Government Pleader appearing for the respondent-State.
3. The brief facts of the case as pleaded, that complainant has stated that Mr.Javaraju of Mysore and Mr.Shehzad Khan i.e., petitioner, have filed complaints about the infringement of KTTP Act and misuse of Rs.4.5 Crores of Government money released for the gold plating 3 work in Mysore Palace. A preliminary enquiry was conducted after acquiring all the documents from the Executive Officer, Mysore Palace Board. In the preliminary enquiry it was found that gold plating work was taken up in Mysore Palace in the year 2007-08 till 2011-12. In this period, there were two gold plating works allocated to the petitioner after issuance of tender. The third work was awarded to Sri.Raghupathy Bhat. In the case of third work awarded in favour of Sri.Raghupathy Bhat, a tender was issued but not completed. The work allocated to petitioner was:
1) Gold Plating of walls and pillars of the
Private Darbar of Mysore Palace totally
measuring 599 Sq.ft and the work was allocated vide Work Order, dated 29.12.2007;
2) Gold plating of the walls and pillars of
Private Darbar of Mysore Palace, totally
measuring 703 Sq.ft.
A copy of the work order dated 23.02.2011 and the agreement entered into between the Mysore Palace Board and the petitioner are produced as at Annexures-D and E. Petitioner was paid Rs.24,38,272/- for first work and Rs.39,01,650/- for the second work.
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4. The third gold plating work was allocated to Sri.Raghupathy Bhat, in respect of 10 pillars of the Private Darbar of the Mysore Palace, totally measuring 360.75 Sq.ft. and Rs.19,48,050/- was paid to him.
5. The petitioner successfully completed the work allocated to him in conformity with the tender specifications. The said work was appreciated and the petitioner was issued with certificates for having successfully completed and carried out the work of Gold Leafing in Private Darbar Hall of Mysore Palace with 24 carat gold leafing. The material used in the work performed by the petitioner was sent to NCL (Lucknow) for testing and analysis while the work was in progress. The said NCL (Lucknow) certified, after a detailed analysis, that the materials used were 99.63% pure.
6. The tender for the third work was floated, however the work was allocated to Sri.Raghupathy Bhat without informing the petitioner of the successful bidder, and without retuning the demand draft for Rs.50,000/- 5 submitted along with the tender to the petitioner. The petitioner in his letter dated 12.05.2013 brought this aspect to the notice of Sri.T.S.Subramanyam. In the said letter, petitioner further alleged that the work was awarded without ascertaining the Technical Certification and without testing the Quality of Gold Leaf and material (Chemical) to be used in the Mysore Palace. The quality of the work was to be ascertained by the National Conversation Laboratory (Lucknow). It was further brought to the notice of Sri.T.S.Subramanyam that NCL (Lucknow) had tested the gold leafing material used by the petitioner and it was found to be 99% pure.
7. Petitioner was named in FIR as accused No.9, even though he was one of the complainant, though there was no allegation against the petitioner either specifically or otherwise in the entire body of the FIR/complaint. The purity of the materials used in the work performed by the petitioner was certified by the NCL (Lucknow), the money released to the petitioner were in accordance with the amount specified in the Work Orders. The work was further inspected by the 6 officers of the Mysore Palace Board and duly certified as having been completed within time and in a professional manner. The petitioner brought these aspects to the notice of Hon'ble High Court of Bombay and sought transit anticipatory bail and the said Hon'ble High Court was pleased to grant the same. The petitioner brought these aspects to the notice of Sessions Court, Mysore and moved an application seeking anticipatory bail. The petitioner submitted before the said Court that there was no pima-facie case made out against him, there was not even a single allegation against him in the entire body of the FIR, and he would co-operate with the investigation as and when required, and does not pose a flight risk, but the application was dismissed. Hence, petitioner approached the Court seeking anticipatory bail.
8. The respondent-Lokayuktha opposed the petition by filing the objection statement. The objections in brief are that a sum of Rs.4.5 Crore has been misused by the petitioner and others. The respondent conducted preliminary enquiry, which was discreet in nature and found that 7 accused Nos.9 and 10 were contractors during different times. Accused No.9 has conspired with other public servants and managed to secure the gold leafing work in Mysore Palace. Accused Nos.9 and 10 have not only used sub-standard materials in the work but it is doubtful about usage of 7.5 kg of gold leaf of 24 carat quality. Accused No.1 without verification of quality of work from experts sanctioned the amount in favour of accused No.9. The petitioner and other 9 persons have by-passed all the checks in order to get Rs.4.5 Crore from funds meant for Palace. For the gold leafing work to the hall and pillars an extent of 599 Sq.ft during the year 2007-08 an amount of Rs.24,38,272/- was disbursed to him during the month of April and may 2008. Gold leafing of pillars and walls of Private Darbar hall to an extent of 703 Sq.ft. during the year 2010-11 for which, an amount of Rs.39,01,650/- was disbursed to the petitioner during the month of May-June 2011. While presenting his tender applications to execute the aforesaid works, the petitioner had enclosed copies of certain letters of Appreciations and Commendation Certificates reportedly issued to his father Sri Afzal Bhai 8 Rahman Bhai, the then owner of M/s.Pink City International, Bombay. Considering these documents, petitioner was made to entrust with the execution of the aforesaid gold leafing in the historical Mysore Palace. It is evident that he misrepresented the Mysore Palace Board utilizing the Certificates issued to his father, to secure the tender works. He has not furnished any documents to show that he too was equally well experienced, qualified and capable of undertaking the said work.
9. Now the investigation is going on. With regard to the quality of the gold and even with regard to measurement of the work, accused No.1 has shown official favour to accused Nos.9 and 10 in awarding the contract. The investigation is still pending and any order of anticipatory bail will hamper the investigation. Petitioner has caused loss to State Exchequer and also cheated the Government. In case if bail order is granted to the petitioner, he will create hurdles in the investigation. The petitioner is not cooperating for investigation and he will destroy the evidence and hence, bail petition may be rejected.
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10. Learned Senior Counsel for the petitioner during the course of his arguments submitted that first gold leafing work was given to the petitioner as per the work order dated 29.12.2007, which was for an amount of Rs.24,38,272/-. So far as the second work, which was given to the petitioner, i.e., gold leafing to the darbar hall walls and pillars work, order was given to him on 23.02.2011 and the amount of the work entrusted is Rs.39,01,650/-. Learned Senior Counsel submitted that for executing the said work agreement was entered into between the petitioner and Executive Officer of the Palace Board Mysore dated 23.02.2011. Learned Senior Counsel submitted that looking to this agreement, it is prima-facie civil in nature. Learned Senior Counsel has further submitted that petitioner executed the work by using 24 carat gold for the gold leafing and the Deputy Director of the Mysore Palace Board issued the certificates that the work is satisfactory and it was completed within the specific time. In this regard, learned Senior Counsel drew the attention of this Court to the certificates produced. He further submitted that even the analytical report also shows that the gold used 10 is 99.63% pure. Learned Senior Counsel has also submitted that so far as the rejection of the earlier bail petition by this Court filed in respect of accused Nos.2 and 10 will not come in the way of considering this petition filed by the petitioner. Learned Senior Counsel has submitted that material in respect of each of the accused is to be assessed independently and the petition cannot be rejected only on the ground that the earlier petition is respect of other accused persons is rejected by the Court. Learned Senior Counsel has submitted that even with regard to the third gold leafing work, the petitioner applied for the tender and deposited an amount of Rs.50,000/- by way of DD and without bringing to the knowledge of the petitioner, same has been given to local person Sri Raghupathy Bhat and in that connection the petitioner addressed the letter dated 12.05.2013 to the Deputy Director, Mysore Palace Board. Learned Senior Counsel has submitted that the petitioner moved the Bombay High Court for transitory anticipatory bail, same was allowed and the petitioner was given an opportunity to approach the appropriate Court in the State of Karnataka by the said order. Learned Senior Counsel has 11 submitted that with regard to the report said to have been obtained from the Director, National Research Laboratory for Conservation of Cultural Property, Govt. of India, Ministry of Culture, Aliganj, Lucknow, Uttar Pradesh dated 23.05.2014 is pertaining to the work carried out by Sri Raghupathy Bhat. Learned Senior Counsel has submitted that the work was entrusted to the petitioner from the year 2007 and after the lapse of five years present complaint has been filed, which is prima-facie not at all maintainable. Learned Senior Counsel has submitted that the petitioner has undertaken the gold leafing work not only in India but also in abroad and is having the international standards with regard to his work efficiency. In this regard, learned Senior Counsel drew the attention of this Court to the averments made at para 17 of the petition. He has also submitted that petitioner is an esteemed entrepreneur and a businessman, and is a tax paying citizen of India. He has further submitted that petitioner has no criminal antecedents.
11. Learned Senior Counsel has further submitted that in the recent decision of the Hon'ble Supreme Court, it 12 has been observed by their Lordships that in case of the offences punishable with less than 7 years or even which may extend to seven years, as per Section 41A of Cr.P.C, the accused is to be served with the prior notice and he cannot be straight away arrested in the case. Learned Senior Counsel has submitted that the Hon'ble Supreme Court made it clear that this proposition is not only applicable to the cases registered for the alleged offence under Section 498A of IPC or Section 4 of the Dowry Prohibition Act but also to other cases. He has further submitted that alleged offences are not exclusively punishable with death or imprisonment for life and petitioner is prepared to abide by any conditions to be imposed by this Court. Hence, submitted to allow the petition and to grant anticipatory bail in favor of the petitioner. In support of his contention, learned Senior Counsel relied upon the following decisions:
i. Arnesh Kumar v. State of Bihar & Another, (Criminal Appeal No.1227 of 2014) ii. Shobhan Singh Khanka v. State of Jharkhand, (2012) 4 SCC 684 iii. Suneet Gupta v. Anil Triloknath Sharma & Ors.
(2008) 11 SCC 670.13
iv. Collins Benjemin v. State of Karnataka, Manu/KA/0352/2011.
v. B.S.Yedyurappa v. Sirajin Basha, 2001 SCC Online Kar 1501.
12. As against this, the learned SPP during the course of his arguments submitted that the allegations in the complaint and also the other materials collected during investigation show that the petitioner has not executed the work as per the agreement by using good quality gold and the work carried out by the petitioner is of sub-standard one. He has submitted that in this regard, the letter addressed by Director, National Research Laboratory for Conservation of Cultural Property, Govt. of India, Ministry of Culture, Aliganj, Lucknow, Uttar Pradesh clearly shows that the work executed is by using sub-standard material. The learned SPP has also submitted that with regards to the experience of the petitioner in the gold leafing work, petitioner is not having the certificates in his name; by producing the certificates, which were in the name of his father and by making a false representation, petitioner has taken the work order in his favour. The learned SPP drew the attention of 14 this Court to the certificate dated 13.06.2011 produced as per Annexure-G and submitted that the Deputy Director, Mysore Palace Board, who is said to have issued the certificate, is also arrayed as accused person in the case. Therefore, no importance can be attached to the said Certificate. He has further submitted that Court has already taken into consideration all the aspects of the matter while considering the bail petition of accused Nos.2 and 10 and rightly rejected the bail petition. He has submitted that since from the date of incident petitioner is absconding and not available to the Investigating Officer for interrogation and the mater is still under investigation, Investigating Officer has to collect some more material and has to file the final report in the case. Learned SPP also submitted that if, anticipatory bail is granted to the petitioner then he will come in the way of further investigation and hamper the investigation. Learned SPP submitted that petitioner along with other accused persons conspired and misused an amount to the tune of Rs.4.5 Crores causing loss to the State-Exchequer. Hence, submitted that petitioner is not 15 entitled to be granted with anticipatory bail and submitted to reject the same.
13. I have perused the averments made in the bail petition, documents produced by the petitioner along with the petition and also the decisions relied upon by the learned Counsel for the petitioners which are referred above. I have also perused the objection statement filed by respondent Lokayuktha.
14. Learned Counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court dated 02.07.2014 rendered in Criminal appeal No.1277/2014 (Special Leave Petition (CRL) No.9127/2013) and submitted that as per Section 41A of Cr.P.C., the respondent police ought to have issued notice to the petitioner before making an attempt to arrest the petitioner. The Hon'ble Supreme Court at page No.20 in para No.2 of the decision, has held as under:
" We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A of IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such 16 cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine."
Therefore, looking to the decision of the Hon'ble Supreme Court, it is applicable to the present petitioner as the alleged offences in this petition are punishable with imprisonment for a period of seven years with fine.
15. During the Course of arguments, the submission of the learned Senior Counsel for the petitioner is that no notice is issued to the petitioner, he is not absconding and he is very much available and ready to co-operate the respondent in the investigation. Looking to the objection statement filed by the respondent Lokayuktha, it is not pleaded in the objection that the notice as required under Section 41A of Cr.P.C. as laid down by the Hon'ble Supreme Court in the said decision has been issued to the petitioner and in spite of issue of such notice, he is not appearing before the respondent.
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16. I have perused the order dated 17.6.2014 passed in Crl. Petition No.3492/2014 c/w. Crl. Petition No.3493/2014 by this Court in respect of accused Nos.2 and
10. As on the date of passing the order by this Court, the decision of the Hon'ble Supreme Court was not yet passed.
17. With regard to the allegation that the work of gold leafing to the Mysore Palace is of substandard quality and substandard materials and thereby, there is cheating by the accused persons to the tune of Rs.4.50 crores is concerned, I have perused the report of Sri. B.V. Kharbade, Director of National Research Laboratory for Conservation of Cultural Property, Government of India, Ministry of Culture, Aliganj, Lucknow, Uttar Pradesh. After visiting the Mysore Palace, Sri. B.V. Kharbade submitted the confidential letter mentioning his opinion in the said letter and they are as under:
" 1. Minimum intervention is the basic principle of conservation which has not been followed in the work carried out by Mr.Bhatt. The damaged original gold leafing work was completely scrapped out and re-made as a new 18 work. Hence, the work executed by Mr.Bhatt may be categorized as the renovation and not the conservation.
2. Before, during and after conservation treatment of an artwork is another basic principle and ethics of conservation. The photographs and video provided by the Palace Board do not provide any clue on the above and also how it was treated. Therefore, the definite opinion on the quality of work done cannot be formed.
3. Glues of animal origin are compatible for gold leafing work on lime based plasters in historic structures. Contrary to this, Arabic Gum with some herbal extracts has been reported to be used by Mr.Bhatt.
4. It is stated that Mr.Bhatt has carried out 5966 square feet gold leafing work in a span of two and half months which is next to impossible in terms of heritage conservation.
5. The purity of gold used in the work cannot be assessed just on the basis of visual and microscopic examination. But, it needs to carry out the analysis selecting points at random basis from the entire gold leafing work using probe type XRF system. The work carried out by Mr.Bhatt is appealing from the layman's point of view but is ugly from the conservation point of 19 view as conservation means the preservation of art of work as it is and not making it new.
6. Regional Conservation Laboratory, Mysore (a unit of National Research Laboratory for Conservation of Cultural Property, Lucknow) has been associated with Mysore Palace since its inception i.e. from the year 1986, and also treated their famous Dussera paintings displayed at Durbar Hall. It is not understandable why the Mysore Palace did not consulted Regional Conservation Laboratory before carrying out this gold leafing work."
18. I have perused the confidential letter of Sri. B.V. Kharbade. At Sl. Nos.1, 3 and 5 of the said letter, comments are made in respect of gold leafing work executed by accused Raghupathy Bhatt who is arraigned as accused No.10. However, there is no mention about the work executed by the present petitioner in the said confidential letter.
19. I have perused the copy of the anticipatory bail order passed by the High Court of Judicature at Bombay dated 01.07.2014 in Anticipatory Bail Application No.789/2014.
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20. With regard to the contention of the learned SPP for the respondent Lokayuktha that the investigation is still going on and hence, at this stage, the petitioner is not entitled to be granted with bail. I have perused the earlier bail order passed by this Court dated 17.6.2014 in Crl.P. No.3492/2014 c/w. Crl.P. No.3493/2014. While considering the said bail petition in respect of accused Nos.2 and 10, it was submitted that the investigation is still going on and hence, opposed the said bail petitions. But looking to the objection statement filed in the present petition, it is filed after lapse of three months. The respondent Lokayuktha has not specifically mentioned in its objection statement as to the progress in the investigation and the materials collected after passing of the said previous bail order. Therefore, at this stage, without producing the materials collected during the said period, the respondent Lokayuktha cannot contend that the investigation is still going on and hence, bail shall not be granted to the petitioner.
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21. I have perused the materials produced by the petitioner along with the petition and also the decisions and the principles enunciated in those decisions relied upon by the learned Senior Counsel for the petitioner. The petitioner, in the bail petition, has contended that he is ready to abide by any condition to be imposed on him and he is ready to cooperate with investigating agency. The offences alleged are also not exclusively punishable with death or imprisonment of life. Therefore, I am of the opinion that by imposing reasonable conditions, petitioner accused No.9 can be admitted to anticipatory bail.
22. In the result, petition is allowed. The respondent police are directed to release the petitioner on bail in the event of his arrest for the offences punishable under Sections 13(1)(c)(d)(ii) and (iii) of the prevention of Corruption Act, 1988 and Section 420 of IPC, registered in respondent - police station Crime No.7/2014, subject to the following conditions:
I. The petitioner shall execute a bond for a sum of Rs.1,00,000/-/- (Rupees one lakh only) and 22 shall offer one solvent surety for the likesum to the satisfaction of the concerned Court.
II. The petitioner shall appear before the
investigating officer for the purpose of
interrogation, whenever called upon to do so. III. The petitioner shall not intimidate or tamper with prosecution witnesses, directly or indirectly.
IV. The petitioner shall appear before the concerned Court within thirty days from the date of this order and shall execute personal bond as well as surety bond.
Sd/-
JUDGE BSR/Cs/-