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Jharkhand High Court

Anosh Ekka vs State Of Jharkhand Through Dir on 4 February, 2011

Author: R .K. Merathia

Bench: R.K. Merathia

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        B.A. No. 7099 of 2010
                              With
                        B.A. No. 6982 of 2010

              Anos Ekka                    ......Petitioner in both cases

                                      Versus
              The State of Jhrkhand        .....Opposite Party in both the cases

              CORAM:-HON'BLE MR. JUSTICE R.K. MERATHIA

              For the Petitioner : Mr. Kaushlendra Prasad Singh
                                   Sr. Advocate
                                   Mr.Amit Sinha, Sameer Saurabh,
                                   Advocates in both the cases
              For the CBI        : Mr. Mokhtar Khan, Advocate in B.A. No. 7099/2010
              For Directorate of
              Enforcement        : Mr. A.K. Das, Advocate in B.A. No. 6982 of 2010
                                        --------
              C.AV.On 21.1.2011                           Delivered on 4/2/2011

6/ 4/2/2011

B.A. No. 7099 of 2010

1. This bail application arises out of R.C. Case No. 04(A)/2010/AHD/Ranchi, corresponding to Sadar (Vigilance) P.S. Case No. 26 of 2008 corresponding to Special Case No. 32/2008, registered under sections 406/409/420/423/427/465/120-B of the Indian Penal Code read with section 11, 13(2) and 13(1)(A) of the Prevention of Corruption Act.

Petitioner had earlier moved this Court for bail vide B.A. No. 6647 of 2009, which was rejected on 18.11.2009. The petitioner moved Hon'ble Supreme Court vide S.L.A. ( Cr) No. 9127 of 2009, but the said Special Leave to Appeal was also dismissed on 4.12.2009.

2. This bail application arises out of the Enforcement Case Information Report being ECIR Case No. 01/PAT/09/AD alleging offences under section 3 read with section 4 of the Prevention of Money Laundering Act, 2002 ( hereinafter referred to as the Money Laundering Act).

Petitioner had earlier moved this Court for bail vide B.A. No. 7609 of 2009, which was rejected on 18.11.2009. The petitioner moved Hon'ble Supreme Court vide S.L.A. ( Cr) No. 9126 of 2009, but the said Special Leave to Appeal was also dismissed on 4.12.2009.

3. It may be noted that both the bail applications filed by the petitioner were heard together by this Court and the Supreme Court and were rejected/dismissed by common order.

4. Mr. Kanhaiya Prasad Singh, learned senior counsel appearing for the petitioner in both the cases made common submissions as follows.

Prayer for bail of the petitioner was rejected by the Supreme Court on 4.12.2009 when the petitioner remained in custody only for 3 and ½ months, and when the investigation was continuing, but now he has remained in jail for more than 17 months.

The principal purpose of bail is to ensure that petitioner returns for trial and that the purpose is not to punish him by keeping behind bars. Petitioner has roots in the community and he is still M.L.A. and there is no risk of his not attending trial. He relied on the judgments reported in AIR 1979 S.C. 1360-Hussainara Khatoon & Others Vs. Home, Secretary, State of Bihar, Patna and AIR 1984 SC 372- Bhagirathsinh Judega Vs. State of Gujrat.

One Kamlesh Kumar Singh @ Kamlesh Singh, against whom, there were serious allegations for committing offences under sections 409, 420, 423, 424, 465 and 120B of the Indian Penal Code, read with Sections 7/10/11/13(2) read with section 13(1) (e) of the Prevention of Corruption Act, was granted bail by this Court on 13.12.2010 vide B.A. No. 9220 of 2010 after he remained in jail only for about 11 and ½ months. The order dated 3.9.2010, passed in B.A. No. 4392 of 2010 in the case of Manoj Kumar @ Manoj Kumar Singh was also relied and it was submitted that in view of custody of more than six months, bail was granted in that case registered under the provisions of IPC as well as Prevention of Corruption Act in which the allegations were of recovery of 169 fixed deposit receipts, worth more than Rs. 12.54 crores apart from other assets. In the fodder scam cases also, all the accused persons were granted bail after remaining in jail for 6 to 9 months. He relied on 2002(9) SCC 372-Laloo Prasad @ Laloo Prasad Yadav. The case of co-accused Hari Narayan Rai is more serious, in which the Supreme Court gave liberty to move after six months. Final order of attachment of all the assets of the petitioner has been passed. The maximum punishment is 7 years in these cases. He lastly submitted that it is not known when the CBI will complete the investigation.

5. On the other hand Mr. A.K. Das, learned counsel appearing for the Directorate of Enforcement and Mr. Mokhtar Khan, learned counsel appearing for the C.B.I. referring to the records and their respective counter affidavits opposed the prayer for bail and submitted as follows.

In the year 2005, petitioner declared his assets along with his wife at the time of contesting election to the tune of Rs.10.50 lacs and earned about Rs.15.40 lacs by way of salary as M.L.A./Minister during March, 2005 to June, 2008. After he became Minister, he got a construction Company-"Ekka Construction" floated in the name of his wife and relatives and got the same registered in the Department, in which he was Minister and got the work orders awarded from several Departments in favour of the said Company by virtue of his influence. The value of the disproportionate assets was assessed at about Rs.6.88 crores and it is going still higher.

Petitioner tampered with the evidence even when he is in judicial custody by getting 11 affidavits dated 17.2.2009 filed along with his earlier bail petition alleged to have been sworn by different vendors to show that -petitioner's wife had purchased certain lands from them and at no point of time, the petitioner after institution of an FIR, ever contacted them, or there was any kind of threat by the petitioner; whereas during investigation the said vendors have said otherwise-that it is the petitioner who gave the money and purchased the land in his name and in the name of his wife and other relatives. He is so powerful and influential that he won M.L.A. election even while he was in jail.

It was also found that at the given address there was no existence of any Company like Ekka Construction. There are about 108 sale deeds, under which big properties have been purchased by the petitioner in his name and in the name of his wife and relatives and also in the name of the said Company.

Referring to the order-sheet of ECIR Case, it was submitted that at his sweet will, the petitioner falls sick and within a short time, he prays for allowing him-to take oath as an M.L.A./or for participating in election of Rajya Sabha.

Bail was granted to Kamlesh Singh, Manoj Singh and Laloo Prasad Yadav etc. in the facts and circumstances of those cases, which are quite different from the present case. Under the Money -4- Laundering Act, Complaint Case no. 1 of 2009 has been filed which is like a charge sheet. Under section 24 of the said Act, the burden of proof is on the petitioner to prove that proceeds of crime are untainted property, and as per section 45, bail can be granted only if the Court is satisfied that there are reasonable grounds for believing that petitioner is not guilty and that he is not likely to commit offence while on bail.

The petitioner is not allowing the trial in Money Laundering Case to proceed as he has realized that his guilt will be proved. He adopted several tactics in order to avoid the receipt of prosecution documents, for about 5 months. Ultimately, it was received on 28th October, 2010, only when this delaying tactics was mentioned in the counter affidavit filed in B.A. No. 6982 of 2010. The case has been fixed for charge, but adjournments are being taken on behalf of the petitioner; on flimsy grounds. Thus, the petitioner has been obstructing the progress of the cases. He cannot complain of delay in conclusion of trial as he himself is solely responsible for the same. He has managed to stay for a considerable period at the hospitals i.e. about four months out of his judicial custody of 17 months; and avoided his appearance in the court, on flimsy grounds. It was also submitted that physical possession of the attached properties could not be taken till date.

The order of Surpeme Court dated 26.10.2010, passed in S.L.P ( Crl) Nos. 6995-6999/2010 in the case of CBI, Hyderabad Vs. B. Ramaraju and others was relied and it was submitted that the bail granted by the High Court was cancelled by the Supreme Court in view of the serious nature of the allegations.

It was also submitted that after charge sheet was submitted by the Vigilance, CBI started investigation as per the order of this Court only in August, 2010. The investigation is to be made in different parts of India and in other countries, which will naturally take some time.

6. In reply, Mr. Singh, appearing for the petitioner, submitted that if the petitioner falls sick it is not his fault and it is the fault of Jail authority if false report of sickness is sent. He lastly submitted that if bail is not granted to the petitioner, people will loose faith in the administration of justice.

7. In my opinion, the bail orders of accused persons in other criminal cases, which were passed in exercise of discretion in the facts and circumstances of those cases is of no help to the petitioner. He is also involved in Money Laundering Case, which was not the position in the said cases, relied on behalf of the petitioner.

Petitioner's prayer for bail in both the cases were earlier rejected by this Court on 18.11.2009 after considering the submissions made by the parties in detail. They were then rejected by the Hon'ble Supreme Court on 4.12.2009. It is true that petitioner has remained in judicial custody for about 17 months ( including about 4 months in Hospitals) but the allegations are very serious. In vigilance case, charge sheet was submitted against the petitioner. However, under the orders of this Court CBI has taken over further investigation recently in August, 2010. Such investigation is to be made in different parts of this Country and other countries also. In Money Laundering Case, Complaint ( charge sheet) has been filed against the petitioner. Provisions of Sections 24 and 45 of this Act are stringent. The burden is on the petitioner to prove that he is not guilty, and while considering the prayer for bail, the Court is required to be satisfied that there are reasonable grounds for believing that accused is not guilty, and he is not likely to commit offence of Money Laundering while on bail. Prima facie there are sufficient materials against the petitioner in both the cases. It has come on record that the petitioner purchased 108 big properties in his name and in the name of others connected with him. The value of disproportionate assets, is still going higher during investigation. It has also come on the record that petitioner has tried to tamper with and influence witnesses, even while he is in jail.

Further more, it is clear from the order sheet of ECIR Case ( Annexure-B) that some times the petitioner is fit to take oath as M.L.A. and contest Rajay Sabha election and then he falls sick for remaining in RIMS, Ranchi/AIIMS, New Delhi ( hospitals) on the basis of purported medical reports. It is also clear that the prosecution documents were not received on behalf of the petitioner on one pretext or the other for about 5 months only with a view to avoid the stage of framing of charge. Now when that stage has come, adjournments are being taken.

Prima facie, it is a case of loot and laundering of huge public money, by the petitioner who claims himself to be a people's representative. Petitioner is also abusing the process of law and making mockery of justice delivery system, as noticed above.

After hearing the parties in detail and considering the entire matter carefully, in my opinion, petitioner does not deserve bail in these cases. Accordingly, these bail applications are rejected.

(R .K. Merathia, J) Rakesh/