Allahabad High Court
Yadav Singh vs Central Bureau Of Investigation on 30 September, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 20.09.2022 Delivered on: 30.09.2022 Court No. - 66 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 17302 of 2021 Applicant :- Yadav Singh Opposite Party :- Central Bureau Of Investigation Counsel for Applicant :- Shiv Sagar Singh Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Samit Gopal,J.
1. Heard Sri Manish Gupta and Sri Shiv Sagar Singh, learned counsels for the applicant and Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the records.
2. The present anticipatory bail application U/S 438 Cr.P.C. has been filed with the following prayer:-
"It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to release the applicant on anticipatory bail in Case Crime No.RC/DST/2015/A/0004) dated 30.07.2015 u/s 120-B IPC r/w 409, 420, 466, 467, 469, 471 IPC & Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988 Police Station STF, CBI New Delhi."
3. At the outset, learned counsel for the C.B.I. raised a preliminary objection regarding the applicant approaching this Court directly and not approaching the court below at the first instance. He has placed paragraph 3 of his short-counter affidavit dated 27.01.2022 as his preliminary objection for the same.
4. Learned counsels for the applicant states that the present petition had been filed on 21.09.2021. and raising the said objection now is not in the interest of justice and in the fitness of things.
5. This Court ignoring the said preliminary objection proceeded to hear the petition on its merit.
6. A first information report was lodged on 13.01.2012 against Yadav Singh & others as Case Crime No. 371 of 2012, under Sections 120-B read with Section 409, 420, 466, 467, 469, 471 I.P.C., Sections 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 at Police Station- Sector 39, Noida, Gautam Budh Nagar, U.P. for the alleged corrupt practices of the executive engineer working therein between 14.12.2011 and 23.12.2011 while executing engineering work in which agreement bonds of Rs. 954.38 crores were executed by Engineering Department of Noida. The investigation concluded and the State police submitted its closure report which was accepted by the District & Sessions Judge, Gautam Budh Nagar on 27.11.2014.
7. Thereafter a Division Bench of the Lucknow Bench of this Court passed an order on 16.07.2015 in Misc. Bench No. 12396 of 2014 (Dr. Nutan Thakur vs. State of U.P. and others) directing the C.B.I. to conduct investigation in all the allegations of corruption and amassing of unaccounted money by Yadav Singh, the then Chief Engineer, Noida / Greater Noida and Yamuna Expressway Authority and other persons in regards to the transactions relating to the same.
8. The C.B.I. took up the case and lodged a first information report as Case No. RC/DST/2015/A/0004/CBI/STF/DLI of 2015, Police Station S.T.F., New Delhi on 30.07.2015. The investigation was handed over to the Deputy Superintendent of Police, C.B.I., S.T.F., Delhi.
9. Learned counsel for the applicant argued that after lodging of the first information report the first charge-sheet bearing No. 02/16 dated 15.03.2016 was filed against the applicant. Subsequently a supplementary charge-sheet bearing No. 06/2017 dated 31.05.2017 was filed by the C.B.I. against the applicant. The copies of the said charge-sheets have been placed before the Court which are Annexures- 2 & 3 respectively to the affidavit. It is argued that the applicant was then granted bail by the Apex Court in the aforesaid charge-sheets dated 15.03.2016 and 31.05.2017 vide order dated 01.10.2019 passed in Special Leave to Appeal (Crl.) No. 6391-6393 of 2019 (Yadav Singh vs. C.B.I.). The copy of the said order has been placed before the Court which is annexed as Annexure-4 to the affidavit and the said fact has been averred in paragraph 10 of the affidavit. It is argued that subsequently the C.B.I. registered a second first information report as Case Crime No. RC/DST/2018/A0004/CBI, under Sections 120-B I.P.C. & Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988, Police Station S.T.F., C.B.I., New Delhi on 17.01.2018. The applicant was arrested in the second first information report dated 17.01.2018 on 10.02.2020 after which he was released in compliance of an order dated 08.07.2020 passed in Habeas Corpus Writ Petition No. 266 / 2020 (Yadav Singh vs. C.B.I. and another) by a Division Bench of this Court. It is argued that the applicant has now come to know through news item published in Times of India dated 30.08.2019 and Jagran dated 02.07.2020 that sanction for prosecution of 09 officers is sought by C.B.I. in Nodia Cricket Stadium Project and as such he apprehends his arrest. While placing paragraph 15, 17 of the affidavit it is argued that co-accused Amar Chand Singh has been granted interim protection vide order dated 08.09.2020 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 5579 of 2020, S.K. Gupta, Rakesh Kumar Jain and Deepak Kumar challenged the sanction of prosecution granted against them before the Lucknow Bench of this Court in which vide order dated 08.07.2020 in their respective petitions, the Court ordered that no coercive action shall be taken against them and further Amar Chand had also preferred a writ petition before the Lucknow Bench of this Court in which vide order dated 27.01.2020 he has been granted an interim protection. It is argued while placing paragraph 19 of the affidavit that the applicant is aged about 63 years and has superannuated as CME (Jal), Noida.
10. Per contra, learned counsel for the C.B.I. vehemently the prayer for anticipatory bail. It is argued that as of now a charge-sheet bearing No. 05 of 2021 dated 06.10.2021 under Sections 120-B, 420, 465, 471 I.P.C. and Section 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 has been filed against the applicant and 10 other persons and M/s. Anand Buldtech Pvt. Ltd. (JV). The copy of the same is annexed as Annexure-SA1 to the supplementary counter affidavit dated 27.01.2022. It is further argued that the present case is related to one of the 1280 contracts of Rs. 954.38 crores which were signed between 14.12.2011 and 23.12.2011 in Noida Authority in which investigation has been ordered by the Lucknow Bench of this Court vide order dated 16.07.2015. It is argued that in the investigation it revealed that M/s STUP Consultant Pvt. Ltd. was appointed as consultant for the construction of Integrated Sports Complex including the cricket stadium project at Noida. It is further argued that N.U. Khan, the then Senior Consultant of M/s STUP Consultant Pvt. Ltd. submitted a detailed estimate for the construction of cricket stadium project on 23.10.2010 & 04.11.2010 to Noida Authority who entered into conspiracy during the year 2010-2011 with the applicant, Santosh Kumar Srivastava, the then CPE, Deepak Kumar, the then Junior Engineer, R.K. Johri, the then JE (T), Anil Sharma, the then JE (Contract), R.K. Jain, the then APE, S.K. Gupta, the then PE, Sant Ram, the then CPE, A.C. Singh, the then Finance Controller along with other accused namely Devendra Kumar Gangal, Director of M/s Anand Buildtech Pvt. Ltd. (JV) to facilitate allotment of tender in favour of M/s Anand Buildtech Pvt. Ltd. (JV). It is further argued that the estimate as received from N.U. Khan, the then Senior Consultant of M/s STUP Consultant Pvt. Ltd. was processed without verifying from the market by the officers posted in Division and no objection was raised by any of them regarding estimate of non-scheduled items based on single quotation, forged quotation, inflated quotation and even relevancy of the items was also not analysed. Even no committee was constituted to verify the rates of non-scheduled items through JE (T) / APE (T) posted in the office. It is argued that the estimate was thereafter sent to IIT but the IIT professor did not apply his mind in analysing the rate from the market. It is argued that the members of the Estimate Committee of Noida Authority including S.K. Srivastava, CPE and A.C. Singh, Finance Controller did not raise any query on inflated rate, forged quotation and single quotation and vetted the estimate for administrative and financial approval by the CEO without weighing the technical specification, rates etc. which was finally approved by the competent authority. It is argued that Anil Kumar Sharma, JE, R.K. Jain, APE and Sant Ram CPE prepared the favourable tender documents in favour of M/s Anand Buildtech Pvt. Ltd. (JV) and sold the tender documents in its favour and allowed it to participate in the tender proceeding against the CPWD Work Manual whereas the CPWD Work Manual did not allow Joint Venture to participate in tender proceedings. It is further argued that the investigation disclosed that M/s Anand Buildtech Pvt. Ltd. (JV) and another participating bidder M/s Jyoti Buildtech a cartel was formed as the FDR of M/s Jyoti Buildtech was prepared from the amount of Rs. 25 lakhs was transferred by M/s Anand Buildtech Pvt. Ltd. (JV) to M/s Jyoti Buildtech on 27.09.2011. It is argued that in conspiracy Santram, CPE, the applicant and A.C. Singh, FC being members off tender committee declared all the three biding contractors qualified in Technical Bid but none of the contractors was eligible for it. Santram, CPE got an incriminating line i.e. "all the three parties meet the pre-qualification criteria, hence the price bid may please be opened." It is argued that Anil Kumar Sharma, JE, R.K. Jain, APE, Sant Ram CPE, Deepak Kumar, JE, R.K. Johri, JE (T) prepared the justification of the cost after opening of the technical bid against the procedure. The rates of non-scheduled items were not verified from the market and the justification of rate was just a guess without any actual survey. It is argued that the members of Tender Committee without justifying and comparing the tender rates accepted for other works in the past and recommended M/s Anand Buildtech Pvt. Ltd. (JV) for allotment of work. It is argued that Devendra Kumar Gangal, Director of M/s Anand Buildtech Pvt. Ltd. (JV) has good relation with the applicant who had constructed two houses of the applicant during 2009-2010 in pursuance of which M/s Anand Buildtech Pvt. Ltd. (JV) was given huge benefit as the difference between the estimated price and the price on which the material was actually purchased by the contractor were found too wide. There was a total loss of Rs. 86,81,267.48. It is argued that the applicant is involved in the present case. The present anticipatory bail application deserves to be dismissed.
11. After having heard learned counsel for the parties and perusing the records, it is evident that the applicant was posted as the Chief Engineer, Nodia. He misused his official position and was involved in embezzlement of money of State Exchequer. He is involved in two other cases. The same are different first information reports but the offences in them are separate and as such after investigation separate charge-sheets are being submitted by the investigating agency. The consideration of parameters for anticipatory bail in economic offences are all together different than other cases. The Apex Court while deciding a matter of economic offence at the stage of anticipatory bail has in paragraph nos'. 69, 72, 76, 77, 78, 80 and 81 in the case of P. Chidambaram v. Directorate of Enforcement : (2019) 9 SCC 24 has held that power under Section 438 Cr.P.C. is an extraordinary power and has to be exercised sparingly, it should be granted only in exceptional cases, nature and gravity of offence has to be seen and refusal to grant anticipatory bail would not amount to denial of the rights conferred upon the accused under Article 21 of the Constitution of India. It was further held that cases of economic offences stand as a different class as they affect the economic fabric of the society. It was observed that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community. It was held as under:
"69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights--safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514], the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar [Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379 : (2012) 2 SCC (Cri) 468] , the Supreme Court held as under : (SCC p. 386, para 19) "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345], State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)"
78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364], it was held as under : (SCC p. 371, para 5) "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 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."
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552], the Supreme Court held as under : (SCC p. 449, paras 34-35) "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need 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.
35. 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."
(emphasis supplied)"
12. In view of the facts as stated above and the law on the subject as laid down by the Apex Court in the aforesaid case, this Court does not find any good ground to entertain the present anticipatory bail application.
13. In view of the same, the present anticipatory bail application is rejected.
Order Date :- 30.9.2022 AS Rathore/E-court (Samit Gopal,J.)