Allahabad High Court
Vikas Chawla (Second Bail) vs State Of U.P. & Another on 21 September, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- BAIL No. - 3817 of 2020 Applicant :- Vikas Chawla (Second Bail) Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Kapil Misra,Abhishek Dhaon,Amrendra Nath Tripathi,Ram Saran Awasthi Counsel for Opposite Party :- Govt. Advocate,A.S.G. Hon'ble Dinesh Kumar Singh,J.
1.This is second bail application filed by accused-applicant Vikas Chawla, who is said to be in jail since 7th December, 2019 in connection with FIR No.0540 of 2019, initially registered under Sections 409, 420, 467, 468, 471 and 120-B IPC. Section 13(2) of the Prevention of Corruption Act (for short 'PC Act') had been added subsequently, during the course of investigation.
Later on, the case had been transferred to the Central Bureau of Investigation (in short 'CBI') and, now the CBI has registered FIR as RC 0062020A0005, under Sections 409, 420, 467, 468 and 471 IPC.
2. The earlier bail application, being Bail No.873 of 2020, filed by the accused-applicant, was rejected by this Court vide well reasoned judgment and order dated 7th April, 2020. At that time, the case was not handed over to the CBI. The present case is regarding illegal investment of Rs.4122.70 Crores with Deewan Housing Finance Limited (for short 'DHFL') from GPF and CPF Funds of the employees of three power companies of the State of U.P., namely, (i) Uttar Pradesh Power Corporation Limited (ii) Uttar Pradesh Rajya Vidut Vitaran Nigam Limited and (iii) Uttar Pradesh Hydro Power Corporation Limited in furtherance of well planned and executed criminal conspiracy to earn illegal commission by the accused on the investment.
3. The investment has resulted into a total loss of Rs.2,267.90 Crores (principal amount), besides loss of interest on the investment from GPF and CPF Funds of the three power companies. The scam of such a huge magnitude by the accused-applicant has resulted loss to the 42000 employees of the three electricity corporations of the State. The employees of the Power Corporations had contributed in the funds to get good return on their hard-earned money and for financial security of their families.
4. The allegations are that the accused-applicant, in furtherance of a well planned criminal conspiracy, with malafide intention, for personal gain, to earn illegal gratification and huge illegal commission in violation of the provisions of law, had invested huge amounts from two funds of Uttar Pradesh Power Sectors employees in DHFL and their illegal, malafide and criminal acts had resulted into loss to these funds to an extent of Rs.2,267.90 Crores (principal amount), besides interests.
5. 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 of administration of justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of damage done to the National Economy and National Interest. Economic offences are placed at higher pedestal than normal crimes. In cases, involving public mischief, resulting into serious offences, involving huge finance committed against the society at large and, therefore, the Court must keep in view the potential threat, which may cause huge financial set back to the gullible public.
6. The accused-applicant had no dealing with DHFL earlier. In furtherance to a criminal conspiracy, the accused-applicant, who is resident of Delhi, had opened an illegal brokerage account at Lucknow with the DHFL on the investments made in the DHFL from two funds of the three power companies of the State, mentioned above. The accused-applicant had received brokerage amount of Rs.5.69 Crores from DHFL for which he could not give any explanation. The accused-applicant had not been able to show his dealing or connection with DHFL or any business relation with the DHFL. The brokerage evidence is part of the case diary.
7. In earlier order, whereby the bail application of the accused-applicant was rejected, the merit of the bail application has been considered in some detail. In serious offences, the bail application should not be lightly entertained by the Courts when there is a prima facie case. Where the offence complained of is such nature as to shake the confidence of the public, the bail should not be granted. It is well-settled that when the previous bail application was rejected on merit and no substantial change of circumstance has arisen, the bail should not be granted on an subsequent application filed by the accused.
8. Under the criminal laws of this country, a person, accused of offences, which are non-bailable, is liable to be detained in custody during the pendency of the trial, unless he is enlarged on bail in accordance with law. An accused in jail in respect of a non-bailable offence is entitled for bail, if the Court comes to the conclusion that the prosecution has failed to establish a prima facie case against him or, if the Court is satisfied, for reasons to be recorded, that in respect of the existence of a prima facie case, there is need to release such person on bail.
9. The Supreme Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another, (2005) 2 SCC 42, in paragraphs 18, 19 and 20, in respect of maintainability of the subsequent application filed by an accused for grant of bail, whose bail once rejected, has held as under:-
"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing require that such persons be released on bail, in spite of his earlier applications being rejected, the courts can do so.
19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country."
10. Heard Mr. S.C. Misra, learned Senior Advocate, assisted by Mr. Kapil Misra, appearing for the accused-applicant, and Mr. Sudeep Kumar Pandey from C.B.I., the investigating officer of the case, and the learned Additional Government Advocate, appearing for Respondent No.1-State. There has been no assistance from CBI as there is no notification under Section 24(8) of the Code of Criminal Procedure in favour of an Advocate. This Court has been witnessing this sorry state of affairs in CBI cases for a few years. This is unfortunate that the premier investigating agency remains unrepresented in cases before this Court as it is unable to appoint its counsel, as required under the Code of Criminal Procedure.
11. The learned counsel for the accused-applicant has submitted that some of the co-accused have been granted bail by the Special Judge-III, P.C. Act, Lucknow and their names have been mentioned in paragraph-17 (p) of the affidavit filed in support of the bail application. The learned counsel has placed reliance on the judgment of the Supreme Court in Sanjay Chandra Vs. CBI (2012) 1 SCC 40 to contend that after filing of the charge-sheet, the accused deserves to be released on bail. He has also placed reliance for the same proposition on the judgment of the Supreme Court in P. Chidambaram Vs. Directorate of Enforcement in Criminal Appeal No.1831, decided on 04.12.2019. It has also been submitted that the father of the accused-applicant is around 80 years old and he is not keeping well and the accused-applicant is the only member, who is required to look after his ailing father.
12. The assistance from the CBI, as has been the case throughout, remains much wanting. Mr. Sudeep Kumar Pandey, the investigating officer, has been heard by the Court. He has submitted that there is no new fact or ground for presenting the second bail application on behalf of the accused-applicant. He has submitted that vide Notification dated 2nd November, 2019 issued by the State Government and subsequent Notification dated 20th February, 2020 issued by the Government of India, the CBI/ACB, Lucknow has taken over the investigation of Case Crime No.540 of 2019 registered at Police Station Hazratganj, Lucknow and registered case RC 0062020A0005 dated 05.03.2020, under Sections 409, 420, 467, 468 and 471 IPC against the accused.
13. The aforesaid case is under investigation by the CBI. The investigating officer has further submitted that looking at the gigantic and mammoth scam by the accused, the investigation is taking sometime as the investigating agency has to examine voluminous documents and discover the money trail. It has been further submitted that the accused-applicant is one of the Directors of M/s Auto Web Performance Cars Private Limited. He entered into a criminal conspiracy with other accused persons to commit the offence in question. In pursuance of the said criminal conspiracy, he got registered his company as broker with DHFL, Lucknow and in furtherance of the said criminal conspiracy, he had received Rs.4.65 Crores in the bank account of his company maintained with HDFC Bank, Old Rejendra Nagar, New Delhi on different dates from the bank account of DHFL. It has been further submitted that the accused-applicant had not provided any service to U.P. Power Corporation Limited against the brokerage to the tune of Rs.4.65 Crores received in the bank account of his company M/s Auto Web Performance Cars Private Limited maintained with HDFC Bank, Old Rajendra Nagar, New Delhi. Shri Pandey has submitted that the accused public servants of UP Power Corporation Limited had invested huge amounts from GPF and CPF Funds of the employees in the fixed deposits of DHFL through 14 different broker firms/companies/individuals and the company owned by accused applicant M/s Auto Web Performance Cars Private Limited is also one of the broker companies of M/s DHFL. M/s Alpine Associates owned by accused Ashish Chaudhary is also one of broker firms of M/s DHFL. Accused-applicant-Mr. Vikas Chawla had also received Rs.1.85 Crores from the account of M/s Alpine Associates. The brokerage received in Crores against the illegal investment of GPF/CPF funds was shared by the accused persons amongst themselves.
14. It has been further submitted that the accused-applicant is an influential person and if he is enlarged on bail during the course of investigation, in all likelihood, he may tamper with the evidence and try to win over the witnesses and, it would be difficult for the investigating agency to discover the money trail. It has been further submitted that the accused-applicant in furtherance of the criminal conspiracy, for personal gain caused loss to the tune of Rs.2267.90 Crores to the two trusts of the employees of the three companies and there is no fresh ground at this stage to enlarge the accused-applicant on bail.
15. After hearing the arguments advanced on behalf of both the parties, this Court finds that there is no change of circumstances to grant bail to the accused-applicant at this stage. Further, the ambit and extent of criminal conspiracy are humongous and the CBI is to complete its investigation and discover the money trail. Thus, the prayer made by the accused-applicant for releasing him on bail is refused and the bail application is rejected. However, CBI is directed to conclude the investigation with expedition.
Order Date :- 21.9.2020 MVS/-