Jharkhand High Court
Jyoti Shankar Sahay vs The State Of Jharkhand Through The ... on 27 July, 2016
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 2014 of 2016
Harish Gupta @ Babli ..... Petitioner
Versus
The State of Jharkhand through C.B.I. ..... Opp. Party
WITH
A.B.A. No. 2015 of 2016
Arun Kumar Agrawal ..... Petitioner
Versus
The State of Jharkhand through C.B.I. ..... Opp. Party
WITH
A.B.A. No. 2027 of 2016
Jyoti Shankar Sahay ..... Petitioner
Versus
The State of Jharkhand through C.B.I. ..... Opp. Party
WITH
A.B.A. No. 2028 of 2016
Ram Naresh Yadav ..... Petitioner
Versus
The State of Jharkhand through C.B.I. ..... Opp. Party
---------
CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
---------
For the Petitioners : Mr. Rajinder Singh Cheema, Sr. Advocate
Mr. Sumeet Gadodia, Advocate.
Mr. Indrajit Sinha, Advocate.
Mr. Prem Pujari Roy, Advocate.
Mr. Ritesh Kumar Gupta, Advocate.
Mr. Bishwajeet Mukherjee, Advocate.
Mr. Syed Ramiz Zafar, Advocate.
For the C.B.I. : Mr. K.P. Deo, S.C.
Mr. Ashish Kumar, Advocate
Mr. S.K. Deo, Advocate.
Mr. Vikash Kumar, Advocate.
---------
05/Dated: 27th July, 2016
All the four anticipatory bail applications are heard
together and disposed of by this common order, as all the
cases are arising out from the same R.C. Case i.e. R.C.
13(A)/2014-R under Section 120B read with Sections 420,
468, 471 and 511 read with Section 420 of the Indian Penal
Code and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, pending in the court of Shri
B.K. Tiwari, Special Judge, C.B.I., Ranchi.
2. As the facts are common in all the cases, so illustration
taken from A.B.A. No. 2014 of 2016 Harish Gupta @ Babli. As
per prosecution case one Sri Manoj Kumar, DGM (Vigilance),
MECON Ltd., Ranchi, Jharkhand submitted a complaint to the
Superintendent of Police, C.B.I., ACB Branch, Ranchi alleging
therein that one Sri Suresh Chandra Jain, DGM (Scientific),
-2-
MECON, Ranchi (petitioner in A.B.A. No. 2654 of 2016) had
submitted unauthorized letters / reports pertaining to the
Integrated Steel Plant of M/s Bhushan Power & Steel Limited
(BPSL) to Rengali, Odisha in conspiracy with one Rajesh Das,
DGM (SMS), MECON, Ranchi. It is alleged that MECON has
been providing design, engineering and consultancy services
to M/s Bhushan Power & Steel Limited (BPSL) for their steel
plant at Rengali, Odisha for preparation of reports on
Environmental Impact Assessment (EIA) / Environmental
Management Plan (EMP) as well as Techno-Economic
Feasibility Report (TEFR) for their 2.8 MTPA Expansion of
their Integrated Steel Plant at Rengali, Odihsa. While the
above ELA/EMP Report was completed by MECON in March
2012, the Techno-Economic Feasibility Report could not be
completed mainly due to non-availability of detailed
information and data to be provided by M/s Bhushan Power &
Steel Limited. A number of communication were received
from various banks seeking confirmation in respect of certain
reports / letters pertaining to the Integrated Steel Plant of
M/s Bhushan Power & Steel Limited at Rengali, Odisha,
which was submitted to them, but purportedly signed by Dr.
S.C.Jain, DGM, MECON, Ranchi. Upon perusal of copies of
above said letters / reports received from various banks, the
MECON confirmed that the above said letters / reports have
not been prepared or submitted by or on behalf of MECON to
any client or agency. The matter was informed inter-alia to
respective banks and to the Economic Advisor, Ministry of
Finance, New Delhi. On the basis of these allegations, the
instant case has been instituted.
3. It is submitted by learned counsel for the petitioners
that petitioner Harish Gupta @ Babli (in A.B.A. No. 2014 of
2016), Arun Kumar Agarwal (in A.B.A. No. 2015 of 2016),
Jyoti Shankar Sahay (in A.B.A. No. 2027 of 2016) and Ram
Naresh Yadav (in A.B.A. No. 2028 of 2016) are working as
DGM (Finance), Chief Finance Officer, Executive Director
(Technical) and Director (Technical) at M/s Bhushan Power &
Steel Ltd. respectively and they are is not a public servant,
hence they do not come under the definition of Prevention of
Corruption Act. It is submitted that during course of
investigation whenever they were summoned, they fully
-3-
cooperated to the CBI personnels and the CBI after
completion of the investigation has submitted final form on
30.01.2016and learned Special Court has taken cognizance under Sections 120(B), 420, 468, 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act on 02.02.2016 and summons have been issued. Pursuant to that they have filed anticipatory bail application in the court below, which was dismissed by the Special Court, hence, the anticipatory bail application.
4. It is submitted that consortium of the bank has released the amount in favour of M/s Bhushan Power & Steel Ltd. not only on the basis of a report of the MECON, rather they have taken 3rd party opinion and after being satisfied the amount was released. This fact has come during course of investigation. So, learned counsel for the petitioners relied on the judgment of the Hon'ble Supreme Court reported in Sidhdharam Satlingappa Mehtre Vs. State of Maharastra & Others reported in (2011) 1 SCC 694, wherein in para-112 of the judgment, the Hon'ble Supreme Court has laid down the facts and parameters which have been taken for consideration while dealing with anticipatory bail.
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:-
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
It is submitted that if it is presumed that these petitioners have entered in criminal conspiracy and alleged to have prepared a forged report in order to get NOC from the bank, then the maximum punishment is up to seven years and during course of investigation, they have cooperated with the CBI and further there is no allegation that they are trying to influence or coerce the witnesses and they were fleeing from justice. In view of aforesaid, they deserve the privilege of -4- anticipatory bail.
Learned counsel for the petitioners further relied upon the recent judgment of Hon'ble Supreme Court in the case of Bhadresh Bipinbhai Sheth Versus State of Gujarat and Another reported in (2016) 1 SCC 152 (paras 21 and 22). In para-22, the Hon'ble Supreme Court has held as under:-
"22, Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with the evidence or influencing witnesses, etc. Once these tests are satisfied, bail should be granted to an under trial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant of non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict. The Court stresses that any single circumstances cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
5. On the other hand, learned Standing Counsel for the CBI has filed a counter affidavit and submitted that the allegation leveled against these petitioners are serious in nature and during course of investigation, it transpired that Bhushan Power & Steel Ltd. had submitted that these petitioners were instrumental in preparation of forged report and they entered into a criminal conspiracy with each other and in pursuance to that they prepared and submitted the unauthorized and fake reports, which were not actually prepared or authenticated by MECON Ltd., Ranchi, for persuaded the consortium of banks to release the amount in- principal approval for a Senior Debt of Rs. 1000 crores and Sub-Debt of Rs. 150 crores, which was conveyed by the State -5- Bank of India in Industrial Finance Branch, New Delhi and the role of Harish Gupta was key role in submission of bank document to State Bank of India, PFSUB, Mumbai, So, they do not deserve the privilege of anticipatory bail.
6. On the other hand, learned counsel for the petitioners in reply has referred to page no. 104 of the final form, where at column C. Lenders' views have also been mentioned. It appears that it was decided finally that MECON Reports matter & disbursement of Phase VI project loans should be de-linked, since the timeline for complete clarity on the MECON matter is uncertain and the Company and lender banks cannot wait indefinitely, especially when the company has already invested a huge amount in the project, and resultantly, the Company is facing liquidity crunch. So, it was submitted further that as a result on the basis of report prepared, purported amount was not disbursed.
7. Having heard learned counsel for the petitioners and learned standing counsel for the C.B.I. and after going through the entire records the following facts emerges:
(i) Petitioners namely Harish Gupta @ Babli (in A.B.A. No. 2014 of 2016), Arun Kumar Agarwal (in A.B.A. No. 2015 of 2016), Jyoti Shankar Sahay (in A.B.A. No. 2027 of 2016) and Ram Naresh Yadav (in A.B.A. No. 2028 of 2016) are the office bearer of M/s Bhushan Power & Steel Ltd.
(ii) MECON was assigned to prepare Environmental Impact Assessment Report and Environmental Management Plan and further Techno-Economic Feasibility Report for Phase-V was produced by MECON, but the allegation is that the report for phase VI is forged and fabricated. Further from the final form, it emerges, at page 106, C. (VII), that decision was taken by the consortium of bank (known as Lenders' views). The Lenders discussed the issues at length & decided as under:-
(i) The two issues viz. MECON Reports matter & disbursement of Phase VI Project loans should be de-linked, since the timeline for complete clarity on the MECON matter is uncertain and the Company and lender banks cannot wait indefinitely, especially when the Company has already invested a huge amount in the project, and resultantly, the Company is facing liquidity crunch.-6-
(ii) As per the fresh TEFR by MND for Phase-VI Project, the difference in the hard cost of the Project is only about 1.89% - and that too possibility due to the new Report having taken into account the actual negotiated (reduced) contract prices, as against quoted prices in the earlier report. The reduction in IDC is in line with the delays in disbursement of TL. It was also noted that the fresh equity infusion has been kept unchanged at Rs. 1,947.00 crores and the reduction in Project Cost has been factored primarily in the reduced Rupee Debt requirement.
Also the DE Ratio is improving marginally from 2.96 t0 2.88. Accordingly, the revised Appraisal Note numbers are re-confirmed / validated.
(vii) On the MECON issue, it was decided that a team of officials from PFSBU SBI, SBICAPs, PNB / Steering Committee members & BPSL should meet MECON officials at the highest level (CMD, MECON) to apprise them of lender banks' views and all the developments in the case right from the beginning, including Phase-V Project. It should be conveyed to them that, while MECON may continue with their internal enquiry, the banks are not inclined to pursue the issue any further. A report of such visit / meeting should be sent by the team to all lenders who may, thereafter, treat the matter as closed.
(iii) Investigation of the case have been completed, final form has been submitted and cognizance have been taken.
(iv) During course of investigation, petitioners herein have fully cooperated with the CBI personnel and whenever they were directed they appeared and cooperated in investigation. C.B.I. has never made any complaint for non- cooperation. There is no material on record to suggest that petitioners have interfered with the investigation or trying to influence the trial and the witnesses.
8. Taking all these facts and also the law laid down by the Hon'ble Supreme Court in the case of Sidhdharam Satlingappa Mehtre (supra) and Bhadresh Bipinbhai Sheth (supra), the petitioners, above named are directed -7- to surrender in the court below within three weeks from the date of this order and in the event of their arrest or surrender the court below shall enlarge the above named petitioners on bail on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five thousand) each, with two sureties of the like amount each to the satisfaction of learned Special Judge, C.B.I., Ranchi, in connection with R.C. 13 (A) / 2014- R, under Section 120B read with Sections 420, 468, 471 and 511 read with Section 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, subject to the conditions as laid down under Section 438(2) of the Cr.P.C., subject to further condition that one of the bailers shall be local resident of Ranchi district, solvent person. Petitioners shall also deposit their Passport, if any, before the trial court and during trial, they will fully cooperate with the CBI and also appear physically before the court below as and when directed. If they want exemption from appearance, they will inform the CBI in advance and after taking necessary permission from Special Court, CBI, they may be exempted from personal appearance.
9. Let the order be communicated to the court below.
(Anant Bijay Singh, J.) Sunil/-