Karnataka High Court
Sri Ramakant Y Hullar vs State Of Karnataka on 23 September, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL PETITION No.4853/2013
BETWEEN:
SRI RAMAKANT Y HULLAR
S/O SRI YALLAPPA HULLAR
AGED ABOUT 43 YEARS
CIRCLE INSPECTOR OF POLICE
DCRB, KOPPAL. ... PETITIONER
(BY SRI PADMANABHA V.MAHALE, SENIOR ADVOCATE FOR SRI
SATHISH M.DODDAMANI, ADV.)
AND:
STATE OF KARNATAKA
BY CENTRAL BUREAU OF INVESTIGATION - ACB
BANGALORE, REP. BY ITS
SPECIAL PUBLIC PROSECUTOR. ... RESPONDENT
(BY SRI C H JADHAV, SENIOR ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 439 CR.P.C.,
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN FIR NO.RC
19(A)/2011 REGISTERED BY CBI, ACB, BANGALORE & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.09.2013, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The petitioner has been arrayed as accused No.7 in the final report submitted in R.C.19(A)/2011 for offences punishable under sections 120B r/w 379, 420, 427 & 447 IPC and also for an offence punishable under section 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the P.C.Act'). He has been in judicial custody from 05.06.2013. He has sought for bail.
2. The aforestated final report is the outcome of investigation conducted in pursuance of the orders of Supreme Court dated 23.09.2011 in Special Leave (Civil) 7366-7367 & connected matters reading as hereunder:-
"(iii) Vide the said report of CEC, it is further pointed out to this Court that massive illegal mining by a third party was being done in mining lease No.1111 of M/s.NMDC. That, despite various complaints to the numerous authorities in the State of Karnataka by M/s.NMDC no steps were taken to prevent that third party from resorting to massive illegal mining in mining lease No.1111 of M/s.NMDC 3 till this court banned mining. These complaints were made against the third party, namely, M/s.Deccan Mining Syndicate ("DMS" for short) for encroaching into M/s.NMDC's mining lease area. Even the complaint lodged by M/s.NMDC against M/s.DMS to the Police Circle Inspector, Sandur on 10.07.2009 was interpolated (See Annexure R-1 to the Report being letter dated 15.09.2011 by M/s.NMDC Limited to CEC). We also want CBI to investigate the above illegalities including encroachment by M/s.Deccan Mining Syndicate in the area leased out to M/s.NMDC."
3. Based on the above order, CBI, ACB, Bangalore registered FIR in RC.19(A)/2011 for offences punishable under sections 120-B, 379, 411, 420, 427, 447, 468 & 471 IPC, for offences punishable under sections 13(2) r/w 13(1)(d) of P.C.Act, for an offence punishable under section 26 of the Indian Forest Act, 1927 and also for offences punishable under sections 21 r/w 4(1), 4(1)(A) & 23 of the Mines & Minerals (Development and Regulation) Act, 1957. 4
4. In brief, the allegations made against petitioner (accused No.7) in chargesheet and annexed documents are as follows:-
"That Shri Ramakant Y Hullur (A-7) was serving as the Circle Inspector of Sandur had not taken any action on the complaints preferred by M/s.NMDC to stop the illegal iron ore extracted by M/s.DMSPL (A-2) from the area of M/s.NMDC and also instructed his subordinates not to take any action and thereby facilitated the illegal extraction of iron ore by acting in pursuance of the conspiracy with the other accused persons."
5. It is alleged that petitioner (accused No.7) was the Police Inspector of Sandur Police Station. On 31.08.2009, one Sri Raghavendra and one Sri B.Vidyasagar of National Mineral Development Corporation (for short, 'NMDC') had lodged a complaint with Sandur Police Station, alleging that DMSPL had committed illegal acts. Further it is alleged that petitioner (accused No.7) was Police Inspector of Sandur Police Station during period from 10.09.2008 to 25.03.2009 and from 12.06.2009 to 26.03.2011. During aforestated 5 period, petitioner had conspired with other accused and in pursuance of the conspiracy, he had instructed his subordinate Sub-Inspector not to take any action on the complaints preferred by M/s.NMDC and he had deliberately ignored the complaints preferred by NMDC and thereby facilitated illegal iron ore mining from the mining area of M/s.NMDC by M/s.DMSPL. It is also alleged that petitioner was responsible for interpolation of first information dated 10.07.2009 lodged by NMDC against DMSPL.
In the first information and investigation records it is stated that on 10.07.2009, the Assistant Manager of NMDC requested Sandur Police to lodge first information report against DMSPL for carrying out illegal mining in those areas of NMDC. However, in letter actually delivered to the Police Station, the words "lodge a FIR" has been scored out by the Assistant Manager (Mech.) and replaced with the words "take an action." Such interpolation was at the instance of petitioner.
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6. I have heard Sri Padmanabha V.Mahale, learned senior counsel for petitioner and Sri C.H.Jadhav, learned senior counsel for respondent (CBI).
7. Before adverting to the submissions of learned counsel for parties and documents relied upon by learned counsel for parties, it is necessary to state that a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.
8. Sri C.H.Jadhav, learned senior counsel for CBI has relied upon decisions reported in:-
I. 2013 AIR SCW 2800 (in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation) II. Criminal Appeal No.728/2013 dated 09.05.2013 (in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation) 7
9. In a decision reported in 2013 AIR SCW 2800 (in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation), the Supreme Court has held:-
"15. 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.
16. 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."8
10. In a decision reported in Criminal Appeal No.728/2013 dated 09.05.2013 (in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation), the Supreme Court has held:-
"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, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. 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 9 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 10 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."
11. The learned senior counsel for petitioner has relied on the judgment of the Supreme Court reported in (2012) 1 SCC 40 (in the case of Sanjay Chandra Vs. Central Bureau of Investigation), wherein the Supreme Court has held:-
"20. The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Penal Code, 1860 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the 11 High Court. Both the courts have listed the factors, which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge;
the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities and the possibility of absconding from justice.
21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.12
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- 13 convicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge".
The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibrating the scales of justice".
39. Coming back to the facts of the present case, both the Courts have refused the request for 14 grant of bail on two grounds:- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied 15 merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh and Ors. Vs. State (AIR 1978 SC 179) observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 16 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.
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44. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
45. In Bihar Fodder Scam (Laloo Prasad case23), this Court, taking into consideration the 18 seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.
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12. In view of what has been held in the aforestated decisions, this court in order to decide this petition has to consider the following amongst others:-
I. The nature of accusations;
II. The nature of prima facie material in support of
accusations;
III. The severity of punishment, which conviction will
entail;
IV. The character of accused;
V. The circumstances which are peculiar to accused;
VI. The reasonable possibility of securing petitioner at
the time of trial;
VII. The reasonable apprehension of witnesses being
tamped with;
VIII. The larger interest of public/State;
IX. The prospects of speedy trial; X. The stage at which bail is sought.
13. It is not in dispute and cannot be disputed that petitioner was the Police Inspector of Sandur Police Station 20 for period from 10.09.2008 to 25.09.2009 and from 12.06.2009 26.03.2011. One P.M.Harish Kumar, (a chargesheet witness) was the Sub-Inspector of Sandur Police Station (SHO) after 08.07.2009.
14. The chargesheet witness namely Amit Kumar Mishra in his statement recorded under section 161 Cr.P.C., has stated that he was the Asst. Manager, (Mechanical at KIOM (NMDC) at Donimalai from 10.10.2008. He was entrusted with the duties and responsibilities of looking after the mechanical equipment, safety aspect of plant and machineries. On 10.07.2009, it was brought to his notice that some of the workers of DMSPL were trying to block the entrance to pit no.2 by keeping a truck. As a result of such action by M/s.DMSPL, they could not operate in pit no.2. Sri Amit Kumar Mishra informed the matter to Sri B.Sahoo, Deputy General Manager and Sri S.K.Jain, AGM. Further, they instructed Sri Amit Kumar Mishra to lodge a complaint against DMSPL with Sandur Police Station. Accordingly, he prepared a complaint and approached Sandur Police Station 21 along with Sri Ganapat, Manager of NMDC. Sri Harish Kumar was on duty. He refused to accept the complaint on 10.07.2009 and instructed Amit Kumar Mishra to give complaint on the next date. Accordingly, Sri Amit Kumar Mishra and Shri Ganapat visited Sandur Police Station on 11.07.2009 and 12.07.2009. Even on these dates they pleaded with Sri Harish Kumar, Sub-Inspector to accept the complaint. However, complaint was not accepted by Sri Harish Kumar (PSI) on 13.07.2009. Sri Harish Kumar (PSI) accepted complaint on the condition that Sri Amit Kumar Mishra (first informant) should make certain changes in the complaint (first information). As instructed by PSI, the subject "lodging of FIR" was changed into "take an action". Before accepting first information, Sub-Inspector namely Sri Harish Kumar had discussed about complaint with Rama Kanth Y.H. (petitioner herein), the then Circle Inspector of Sandur Police Station.
15. The statement and further statement of Sri Harish Kumar, Sub-Inspector and his statement recorded under 22 section 164 Cr.P.C., would reveal that he had been instructed by accused No.7 to interpolate the complaint lodged by Sri Amit Kumar Mishra of NMDC by changing the subject as "take an action" against DMSPL, instead of "lodging of FIR" against DMSPL.
16. The statement of Sri N.K.Nanda, Director (Technical) of NMDC would reveal that there was boundary dispute between NMDC and DMSPL and numerous complaints had been lodged during period from 10.09.2008 to 25.03.2009 and from 12.06.2009 to 26.03.2011. The perusal of statement of complaints would reveal that NMDC had lodged various complaints during aforestated period, complaints had been addressed to the Officers of Department of Mines & Geology, Revenue Officials, Principal Secretary, Department of Commerce & Industries and Superintendent of Police of Bellary. On 10.07.2009, 28.07.2009 & 31.08.2009, NMDC has lodged complaints against DMSPL with Police Inspector of Sandur Police Station (petitioner herein). In the complaint lodged on 10.07.2009, the officials of NMDC had requested 23 Police Inspector (petitioner herein) to take action against DMSPL for stopping of NMDC activities in pit No.2. Similar complaints had been lodged on 17.07.2009 and 28.07.2009. The officials of NMDC had requested for providing police assistance. On 31.08.2009 they had lodged complaint with Police Inspector to prevent DMSPL from creating disturbance.
17. As already stated, petitioner was the Police Inspector of Sandur Police Station for the period from 19..09.2008 to 23.09.2008 and from 12.06.2009 26.03.2011. The respondent has relied on statements of PSI of Sandur Police Station namely P.M.Harish Kumar and statement of Sri Amit Kumar Mishra to prima facie establish that petitioner was responsible for interpolation of first information dated 10.07.2009 lodged by NMDC with PSI of Sandur Police Station.
18. The statement of Sri Amit Kumar Mishra reveals that he had met PSI of Sandur Police Station to lodge complaint 24 on 10.07.2009 and he had made aforestated corrections at the instance of PSI. Sri Amit Kumar Mishra has stated before such correction was made, PSI had met petitioner. Therefore, he has inferred that petitioner was responsible for aforestated alteration/correction in the first information.
19. The statement of this witness recorded under section 164 Cr.P.C., does not prima facie inspire confidence and it is not consistent with the statement of Amit Kumar Mishra.
20. In the statement recorded under section 164 Cr.P.C., Sri P.M.Harish Kumar, Sub-Inspector of Sandur Police Station has stated that on receiving complaint lodged by Sri Amit Kumar Mishra, petitioner contacted P.M.Harish Kumar and told him for changing the subject as "take an action"
against DMSPL instead of "lodging of FIR" against DMSPL.
21. At this juncture, it is relevant to state that witness namely Harish Kumar was the Sub-Inspector of Sandur Police Station. Under section 154 Cr.P.C., he was bound to register the first information report, without seeking advice 25 or heeding to the advice of Police Inspector. Even otherwise, changing of subject "take an action" against DMSPL, instead of "lodging of FIR" against DMSPL would not in any way detract the contents of complaint. Under section 154 Cr.P.C., if information relating to commission of a cognizable offence if given orally shall be reduced into writing by Station House Officer or Officer in-charge of Police Station. If information is given in writing, the officer in-charge of police station shall prepare first information report as provided under section 157 Cr.P.C. Therefore, criteria for registration of case and proceeding with investigation under Chapter XII of Cr.P.C., would be the substance of first information. In the circumstances, allegations made against petitioner that he was responsible for changing the contents of complaint as aforestated does not prima facie inspire confidence. Above all, it was the duty of Officer in-charge of Police Station (Sri Harish Kumar, Sub-Inspector of Sandur Police Station) to proceed with the matter under Chapter XII of Cr.P.C. 26
22. Sri C.H.Jadhav, learned senior counsel for CBI has made available statement of Sri P.M.Harish Kumar recorded on 17.05.2013, which would reveal in the month of May 2009, Sri P.M.Harish Kumar had met Personal Assistant of Sri Gali Janardhana Reddy. The petitioner had taken P.M.Harish Kumar to the residence of Sri Gali Janardhana Reddy in Parijatha at Bangalore and has introduced Personal Assistant of Sri Gali Janardhana Reddy. Sri P.M.Harish Kumar requested his transfer to Bellary District. It is at the instance of Sri Gali Janardhana Reddy, Sri P.M.Harish Kumar was transferred to Sandur Police Station as Station House Officer.
23. The statement of Sri P.M.Harish Kumar recorded on 17.05.2013 would reveal that he was transferred to Sandur Police Station at the instance of Sri Gali Janardhana Reddy. Therefore, statement of this witness that petitioner was instrumental for all illegal activities does not inspire confidence. In his further statement dated 17.05.2013, Sri P.M.Harish Kumar has stated that there was illegal 27 transportation of iron-ore when he intercepted trucks, immediately Sri Ali Khan, the then Personal Assistant to Sri Gali Janardhana Reddy used to telephone him and direct him to release the same stating that trucks carrying illegal iron-ore belong to Sri Gali Janardhana Reddy, the then In- charge Minister for Bellary District. Sri P.M.Harish Kumar used to inform the same to petitioner and petitioner (accused No.7) was directing Sri P.M.Harish Kumar to obey the directions of Ali Khan, Personal Assistant of Sri Gali Janardhana Reddy. The statement of this witness would reveal that he was obediently following the instructions of Ali Khan, the then Personal Assistant to Sri Gali Janardhana Reddy. In the circumstances, statement of this witness attributing various illegal acts to accused No.7 (petitioner herein) does not prima facie inspire confidence.
24. As already stated complaints had been lodged by NMDC against M.J.Boal and subsequently against DMSPL from the year 1987. Three complaints which had been lodged with petitioner have been stated supra. The investigation 28 records would reveal that Sri Gali Janardhana Reddy, the then Minister for Tourism and District In-charge Minister for Bellary and his Personal Assistant by name Ali Khan were pressurising the concerned officials in Bellary District not to entertain complaints lodged by NMDC against DMSPL. In the final report it is stated that "investigation pertaining to the role played by Shri G.Janardhana Reddy and Shri M.Ali Khan in pressurising the officers not to entertain the complaints lodged by M/s.NMDC after the year 2008 is in progress". Further Final Report will be submitted on completion of the same.
25. The petitioner was working as the Police Inspector of Sandur Police Station. The petitioner had not considered complaints lodged by NMDC against DMSPL in proper perspective. Therefore, it can be inferred that petitioner has not discharged his duties in public interest. However, from this circumstance, it is not possible to infer that petitioner had entered into conspiracy with other accused from the year 1980 to the year 2010. The allegations made against 29 petitioner would prima facie attract an offence punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (for short, 'P.C.Act').
26. At this juncture, it is relevant to state that though first information was registered for offences punishable under sections 468 & 471 IPC, they have been deleted in the final report. The investigation records accepted on their face value would reveal that petitioner had committed an offence punishable under section 13(1)(d) r/w 13(2) of the P.C.Act. The investigation records do not reveal that petitioner was the immediate or ultimate beneficiary of illegal activities, alleged to have been committed by DMSPL. It is probable that petitioner was obeying the command of Sri Gali Janardhana Reddy, the then district in-charge minister of Bellary District and his personal assistant, Sri Ali Khan. The allegations in the final report that petitioner had conspired with other accused during period between 1980 and 2010 cannot prima facie be accepted, having regard to tenure of his office as the Police Inspector of Sandur Police Station for 30 the period from 19..09.2008 to 23.09.2008 and from 12.06.2009 26.03.2011.
27. Sri Padmanabha V.Mahale, learned senior counsel for petitioner would submit that there is no prima facie material against petitioner to hold that petitioner has committed offences of criminal conspiracy, cheating, trespass and theft.
28. The investigation records accepted at their face value would prima facie attract an offence punishable under section 13(1)(d) r/w 13(2) of the P.C.Act for which maximum punishment provided is imprisonment which may extend up to seven years.
29. The learned senior counsel for petitioner, relying on the judgment of Supreme Court reported in (2012) 1 SCC 40 (in the case of Sanjay Chandra -vs- Central Bureau of Investigation) has made following submissions:
I The presumption of innocence is very much available to the petitioner until duly tried and duly found guilty.31
II The punishment begins after conviction.
III Even while considering the bail application with reference to economic offences of huge magnitude, this court cannot lose sight of the fact that investigation agency has completed the investigation and charge sheet is already filed.
IV This court will have to consider not only the seriousness of the charges but also the severity of punishment for the offences with which the accused have been charged.
30. In the discussion made supra, I have held that there is prima facie case against petitioner for an offence punishable under section 13(1)(d) r/w 13(2) of P.C.Act, for which maximum punishment provided is imprisonment which may extend up to seven years. Now adverting to other factors which have bearing on the bail petition, it is necessary to state the following:-
The petitioner has retired from service. The petitioner does not bear criminal antecedents. The situation of 32 petitioner fleeing away from justice is rather remote. The apprehension of petitioner likely to tamper with prosecution witnesses can be allayed by imposing suitable conditions. If petitioner were to tamper with prosecution witnesses, the prosecution can seek for cancellation of bail. The facts and circumstances of the case do not indicate that if petitioner is released on bail, that would affect larger interest of public or State.
31. There are 112 chargesheet witnesses. The prosecution has also relied on voluminous documentary evidence. In the final report, it is stated that investigation pertaining to role played by Gali Janardhana Reddy and Mohammed Ali Khan in pressurising the officials not to entertain the complaints alleged by M/s.NMDC against M/s.DMSP after the year 2008 is in progress. In the circumstance the chances of speedy trial are remote.
32. Thus, on overall consideration of facts and circumstances of the case and punishment provided for offences alleged against petitioner and facts and 33 circumstances peculiar to petitioner and bearing in mind antecedents of petitioner, I am of the opinion that petitioner is entitled to bail.
33. In the result, I pass the following:-
ORDER The petition is accepted. The petitioner is released on bail, subject to following conditions:-
I. The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) and offer two sureties for the likesum to the satisfaction of learned Special Judge.
II. The petitioner shall not intimidate or tamper with prosecution witnesses.
III. The petitioner shall regularly attend the court. IV. The petitioner shall not leave the jurisdiction of Special Court, without prior permission of learned Special Judge.34
V. The petitioner for the purpose of further investigation shall appear before the Investigating Officer whenever called upon to do so. VI. If the petitioner were to violate the aforestated conditions, respondent (CBI) is at liberty to move the Special Court for cancellation of bail. It is made clear that observations made in this order are confined for disposal of this petition. The learned Special Judge during subsequent stages of the case shall not be influenced by the observations made herein.
Sd/-
JUDGE SNN