Gujarat High Court
Vipul Ramjibhai Patel vs State Of Gujarat on 28 April, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/CR.MA/6763/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO.
6763 of 2016
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VIPUL RAMJIBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR RJ GOSWAMI, ADVOCATE for the Applicant(s) No. 1
MR. KALRAV R PATEL, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 28/04/2016
ORAL ORDER
1. Heard Mr. K.B. Anandjiwala, learned Senior Advocate with Mr. R.J. Goswami for the applicant and Mr. Mitesh Amin, learned Public Prosecutor for the respondent State.
2. By way of this application under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the applicant has prayed for anticipatory bail in connection with the offences registered as C.R.No.I03/2016 registered with A.C.B. Police Station, Ahmedabad District, for the offences punishable under Sections 7, 8, 10, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and sections 120B and 114 of the Indian Penal Code.
3. The present applicant is accused no.1 in the said Page 1 of 25 HC-NIC Page 1 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER FIR which came to be lodged on 31.01.2016 for the incident alleged to have happened between 17.12.2015 to 29.01.2016. As can be seen from the record of the application as well as the FIR, one Shri D.P. Bhatt, Police Inspector of ACB, Ahmedabad City, Ahmedabad is the first informant. In the FIR, 10 accused have been named, wherein the present applicant is, as observed hereinabove, accused no.1. The applicantaccused no.1 and one Jayesh Gordhanbhai Patel, accused no.2, are partners of a partnership firm in the name and style of Pearl Services and the applicant is also Managing Director of a Private Limited Company known as Fly Ash Blocks & Bricks Pvt. Ltd. It is alleged that the applicant and accused no.2 in collusion with the other accused who were data operators, who were stationed at RTO checkposts situated at different border towns of Gujarat State, permitted trucks to go without payment of any fund and thereby they have collected huge amount from the truck drivers illegally. As the record of the application reveals, the State Government in transport department, since year 2011, requisitioned services of Government company, i.e., Gujarat Info Petro Ltd. (GIPL) for services of data operators at various checkposts situated on the borders towns/villages of the State of Gujarat. It is a matter of record that in the initial stage, GIPL in its turn gave the work of outsourcing and providing of human resources in Page 2 of 25 HC-NIC Page 2 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER form of data operators to a company known as Phoenix and thereafter, it has been given to one company known as AARVI Encon Pvt. Ltd. It is alleged by the prosecution that the present applicant is the main accused in the whole racket, which according to the prosecution was revealed by interception of mobile talk between the applicant herein, accused no.2 and other accused, who were in fact data operators, which is forming part of the detailed allegations in the FIR in question. The record also indicates that the applicant approached the learned Sessions Court by way of filing an application being Criminal Misc. Application No.589 of 2016 for anticipatory bail, which came to be rejected vide order dated 08.03.20163 and thereafter, the present application is filed.
4. Mr. Anandjiwala, learned senior advocate appearing for the applicant has taken this Court through the contents of the FIR in question and has raised the following contentions 4.1 Mr. Anandjiwala pointed out that the present applicant is accused no.1 and the present complaint is filed under the provisions of Sections 7, 8, 10, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and sections 120B and 114 of the Indian Penal Code by one Shri D.P. Bhatt, Police Inspector of ACB, Ahmedabad City, Ahmedabad, on 31.01.2016.
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4.2 Mr.Anandjiwala contended that the offences alleged are under the provisions of Prevention of Corruption Act. However, none of the accused shown in the FIR are Government servants. It was contended that Prevention of Corruption Act is a special Act and the object of the said Act is to prevent corrupt practices of public servant. However, in absence of any public servant being involved in the alleged offence, ACB cannot investigate unless any specific order is passed by this Court and as none of the accused are Government servants prima facie, ACB cannot investigate the offence. It was contended that all data operators who are also coaccused were discharging duties as data operators since about 810 years.
4.3 It was contended that the FIR is absolutely vague and is based on the interception of mobile talk wherein the present applicant is named only in item no.12. It was contended that it was accused no.2 Jayesh Patel and other persons who have talked with each other which is forming part of the FIR and the present applicant is not concerned at all. It was submitted by the learned counsel for the applicant that the applicant is an individual businessman, though it was also submitted that the applicant is partner of accused no.2 Jayesh Page 4 of 25 HC-NIC Page 4 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER Patel.
4.4 Mr. Anandjiwala further contended that GIPL has entrusted the work to other professional firms with which the present applicant has no connection.
4.5 It was contended that the accused no.2 is released by this Court on regular bail under section 439 of the Code who was first arrested and then enlarged on bail by the learned Sessions Court. Mr.Anandjiwala further submitted that the State also moved an application for cancellation of the bail granted by the learned Sessions Judge to accused no.2 Jayesh Patel. However, the same came to be dismissed by a common order dated 10.03.2016 passed by this Court (Coram:A.J.Desai, J.) in Criminal Misc. Application No.5852/16 with Criminal Misc. Application No.6157/16 4.6 Mr.Anandjiwala also submitted that the allegations levelled in the FIR are without any basis and that, the applicant is wrongly roped in. Mr.Anandjiwala further contended that the applicant is an RTI activist and the investigating officer anyhow wants to arrest the applicant in this offence.
4.7 Mr.Anandjiwala, by relying upon such applications which are forming part of the Page 5 of 25 HC-NIC Page 5 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER record of this application further contended that as such, the role of the computer data operator is only to make entries whereas the main duty is of the RTO Inspector who is stationed at such checkposts. It was further contended that even though the applicant made such applications and allegations against the officers, no actions are taken by the authorities even though, the applicant has also supplied video in support of his complaint relating to corrupt practices by certain officers including the ACB officers. Mr. Anandjiwala contended that because of such applications made by the applicant, he has become an eyesore and therefore, the applicant has been wrongly roped in the present offence.
4.8 Mr.Anandjiwala, by relying upon the judgment of the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors. reported in (2011) 1 SCC 694, contended that in facts of the case, no custodial interrogation is necessary so far as applicant is concerned and further submitted that the applicant is an individual businessman and arrest would affect his family as well as his position in the society.
4.9 Mr.Anandjiwala reiterated that data operators were employed by the company which was authorised by GIPL since about 810 years and Page 6 of 25 HC-NIC Page 6 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER custodial interrogation in such a case would mean that applicant would be subjected to remand and third degree treatment.
4.10 Mr.Anandjiwala further contended that in view of the fact that coaccused and more particularly accused no.2 has already been enlarged on regular bail by this Court, the applicant is entitled to anticipatory bail as prayed for.
4.11 Mr.Anandjiwala lastly contended that only because officers of GIPL who are Government servants have been arrested very recently, the same would not affect the merit of the applicant's case.
With the aforesaid contentions, it was submitted by learned counsel Mr. Anandjiwala that this is a fit case for exercise of discretion in favour of the applicant by enlarging on anticipatory bail under section 438 of the Code.
5. Per contra, Mr. Amin, learned Public Prosecutor has opposed the petition and has relied upon the affidavit of the I.O. as well as investigation papers.
6. Mr. Amin, learned Public Prosecutor submitted that the appointment of data operators at various checkposts situated on the border town of the Gujarat was initiated for the first time in the Page 7 of 25 HC-NIC Page 7 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER year 2011 by the State Government. Mr. Amin further submitted that GIPL, a Government company, was entrusted with the said work by the Government and GIPL in its turn requisitioned services of company known as Phoenix, which is run by the wife and son of one Mr. Ashok N.Chajjad, who was internal auditor of GIPL. Mr.Amin submitted that Ashok N. Chajjad is arrested on 24.03.2016 in connection with the present offence. Mr. Amin also pointed out that GIPL had given contract to Phoenix only because the same was run by the wife and son of Mr. Chajjad. Mr. Amin, on the basis of the investigating papers, further submitted that thereafter, services of another company known as AARVI Encon Pvt. Ltd. was called for by GIPL for recruitment of data operators. However, the earlier data operators who were appointed by Phoenix were continued. Mr. Amin also further submitted that one Mr.V.K. Sharma, CEO of the said company has been arrested on 24.03.2016 in connection with the present offence. Mr. Amin further submitted that another person who is working with GIPL as Project Officer, one Shri Ramjibhai Chavda is to be arrested, but is not available.
7. Mr.Amin further submitted that seven checkposts are lucrative checkposts out of which, the checkpost at Bhilad, situated in Valsad District, is the most lucrative.
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8. Mr. Amin submitted that all other coaccused have been released either by Sessions Court or this Court under section 439 of the Code, i.e., by way of regular bail whereas the present case is for anticipatory bail under section 438 of the Code and therefore, the applicant is not entitled to parity of the data operators and even accused no.2 Jayesh Patel.
9. Mr.Amin, relying upon the investigating papers, which were shown to the Court, further submitted that there is ample evidence on record to show the exact role of the present applicant. Mr. Amin submitted that these facts came to light because of the interception of the mobile talk between the present applicant, accused no.2 and other data operators. Mr.Amin further alleged that large amount is being collected by the present applicant and the present applicant is the key person in the whole racket. It was further submitted that the present applicant and accused no.2 Jayesh Patel are partners and when the accused no.2 was intercepted, he was found with a huge amount of Rs.22.75 lakhs from his car. Mr. Amin, on the basis of the investigating papers, which were also shown to the Court, contended that the present applicant is the main person and the other persons have worked under his authority. Mr. Amin further submitted that in fact a warrant under section 70 of the Code is Page 9 of 25 HC-NIC Page 9 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER issued by the trial court on 28.03.2016 against the applicant and he is not available. It was further submitted that in the case on hand, qualitative investigation is possible only when accused like the present applicant has no umbrella. Mr. Amin submitted that in facts of the case, custodial interrogation of the present applicant is very necessary, which would enable the investigating agency to find out other persons and more particularly, the persons in GIPL who are involved in the present offence. Mr. Amin also submitted that major chunk goes to the present applicant as can be seen from the investigating papers as on today, but to what extent, can be revealed by the present applicant.
10.Mr.Amin submitted that the investigation is at a very crucial stage and on 26.04.2016, the internal auditor Mr. Chajjad as well as Mr.V.K. Sharma, CEO of GIPL are already arrested and therefore, custodial interrogation of the present applicant is also necessary.
11.Mr. Amin reiterated that parameters of grant of anticipatory bail and regular bail are quite different and therefore, parity would not come to the aid of the applicant and should not be considered by this Court.
12.Mr.Amin further submitted that the contention raised by the learned counsel for the applicant that the FIR is vague does not deserve any Page 10 of 25 HC-NIC Page 10 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER consideration at this stage. Mr. Amin submitted that FIR cannot be an encyclopedia. However, the FIR does contain necessary details which lead to committing of offence alleged.
13.Denying the contentions raised by the learned counsel appearing for the applicant that the applicant has become eyesore, Mr.Amin submitted that the FIR is lodged by Mr.Bhatt, who is Police Inspector in ACB and Mr. Sheikh, as alleged by the applicant, has nothing to do with the same.
14.Mr.Amin submitted that one Shri I.O. Patel is the investigating officer. Mr. Amin further submitted that the alleged grudge against the applicant is also far from truth as the FIR is also based on interception of the mobile talk between the accused no.2 as well as the present applicant and other coaccused and at the first instance itself, a large amount of Rs.22 lakhs and more have been recovered from accused no.2. Mr. Amin further explaining the procedure which is followed at the checkposts elucidated that the data operator is the first officer who deals with the vehicle which enters the border. If it is found that the vehicle is overweight or overloaded, such data operator would stop the vehicle and call the RTO Inspector. It was also therefore contended that the work which is done by the data operator is that of a public servant. Mr. Amin further submitted that the data Page 11 of 25 HC-NIC Page 11 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER operators are paid from the State Exchequer as ultimately, GIPL receives its charges from the Government. Mr.Amin further submitted that as per the provisions of section 2(b) and 2(c)
(viii) and (xii) as well as the explanation, provisions of Prevention of Corruption Act would be attracted and the data operators would be included in the definition of public servants as they perform public duty and they receive the salary from the State.
15.Mr.Amin submitted that the present application is under section 438 of the Code for anticipatory bail by a person against whom warrant is issued, wherein, recently, CEO of the said Company as well as internal auditor have been arrested. It was also contended that even assuming against the case of the prosecution, only because the co accused have been enlarged on regular bail, the offence is not washed out at this stage, i.e., at the stage of consideration of prayer for anticipatory bail.
16.Mr.Amin further submitted that the paramount consideration at this stage is to permit the investigating officer to investigate the applicant without any umbrella and therefore, as per the scheme of the Code, various stages are provided for and at the threshold, niceties are not required to be considered by this Court and in fact, such niceties can be considered at the Page 12 of 25 HC-NIC Page 12 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER stage of filing of the chargesheet.
17.Mr.Amin further submitted that as pointed out earlier, the investigation is at a crucial stage. Considering the investigating papers which are made available to the Court, no parity can be granted to the applicant. It was also pointed out that many other persons are required to be arrested and therefore, this is not a fit case for grant of any discretion in favour of the applicant and the application deserves to be dismissed.
18.Mr.Anandjiwala, in rejoinder to the contentions raised by the learned Public Prosecutor, further pointed out that as per section 21 of the IPC, data operators are not Government servants. Giving the example of relief workers, it was contended by Mr. Anandjiwala, learned senior counsel appearing for the applicant that if that be the case, even the relief workers would be Government servants. For example, relief workers cannot be considered to be Government servants and it was contended that section 2(c) of the Prevention of Corruption Act would not apply to the data operators. It was also contended that even if the provisions of section 8 of the Prevention of Corruption Act is considered, no Government servant was arrested and they have been arrested for the first time on 24.03.2016. Relying upon the judgment of this Court in the Page 13 of 25 HC-NIC Page 13 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER case of Solanki Ravibhai Dipubhai & Ors. vs. State of Gujarat reported in 1992(1) GLR 631, it was submitted by Mr.Anandjiwala that this is a fit case for grant of anticipatory bail. It was contended that all other accused have been released and even those two accused, who have been arrested, only one person is taken on remand would not be a ground on which the applicant also should be arrested.
19.Mr.Anandjiwala also contended that as per the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), custodial interrogation is not necessary in the instant case as that would mean that the applicant would be subjected to third degree treatment by the investigating agency. It was also submitted that the applicant is ready and willing to cooperate with the investigation and therefore, this Court may exercise the discretion in favour of the applicant by enlarging the applicant on anticipatory bail subject to any stringent conditions. Lastly, it was contended that though Mr. Amin, learned Public Prosecutor has contended that Mr.Sheikh is not involved, recently, on 08.02.2016, in case of accused no.2, remand application was made by Mr. A.A. Shaikh who is PI, Kheda A.C.B. Police Station, Nadiad, Camp Ahmedabad. It was reiterated that the application may be allowed accordingly.
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20.No other or further submissions were made by the learned counsel for the parties.
21.Upon considering the submissions made by the learned counsel appearing for the parties and on perusal of the investigating papers, it clearly appears that the FIR is based on interception of mobile talk between the applicant, accused no.2 and the other coaccused, who were data operators. Though at the first blush it appears that the applicant is not knowing who are connected with the alleged offence, the investigating papers clearly reveal, which in fact can be relied upon by this Court at the stage of anticipatory bail, that the applicant is the key person in the whole gamut. It appears that the applicant is instrumental in collection of illegal amount from the data operators who are employed by Phoenix originally and continued by AARVI Encon Pvt. Ltd. at the auspices of GIPL officers. This Court has examined the concerned investigating papers which were made available by the learned Public Prosecutor and suffice it to say that right from appointment of a particular person as computer operator, supervisor at check post, the present applicant is prima facie involved with the help of the officers of GIPL and as rightly pointed out by the learned Public Prosecutor, the present applicant is kingpin of the whole racket. The contention raised by the learned counsel for the applicant to the effect Page 15 of 25 HC-NIC Page 15 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER that the accused no.2 has been granted regular bail and based on it parity is claimed by the applicant however the said order is based on two aspects that no officer of the company is arrayed as an accused and this Court has also considered the fact that accused no.2 was subjected to police remand for 10 days.
22.Consideration of regular bail under section 439 and anticipatory bail under section 438 are different and distinct. The investigation is at a very crucial stage and it would not be appropriate for this Court to discuss the same in greater detail. However, it can be safely said that prima facie, there is material against the present applicant.
23.Considering the ratio laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), the gravity of offence which has in fact lead to loss to the public exchequer, cannot be considered lightly and therefore, as held by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), considering the nature and gravity of accusation and exact role of the accused, in opinion of this Court, this is not a fit case for exercise of discretion in favour of the petitioner. As held by the Apex Court in the case of Jai Prakash Singh vs. State of Bihar & Anr. reported in AIR 2012 SC 1676, in the instant case, parameters for grant of anticipatory bail Page 16 of 25 HC-NIC Page 16 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER in a serious offence are not satisfied and in the opinion of this Court, the case on hand does not fall within the purview of exceptional consideration and from the investigating papers as well as record of the application, it cannot be even prima facie said that the applicant has been falsely roped in the present offence. In facts of this case therefore, the ratio laid down by this Court in the case of Solanki Ravibhai Dipubhai(supra), relied upon by Mr. Anandjiwala, learned counsel for the applicant, would not be applicable.
24.As observed hereinabove, the CEO of the Company Shri V.K. Sharma has been arrested and the offences which are alleged is also under section 8 of the Prevention of Corruption Act. At this stage, it would be appropriate to refer to the judgment of the Apex Court in the case of State Through Central Bureau of Investigation, New Delhi vs. Jitender Kumar Singh reported in (2014) 11 SC 724 wherein the Apex Court has observed thus "25. Section 3(1) of the PC Act confers power on the Central Government or the State Government to appoint as many Special Judges as may be necessary, for such area or areas or for such cases or group of cases as will be specified in the notification to be issued in the Official Gazette. The Special Judge is so empowered to try any offence punishable under Section 3(1) (a) of the PC Act. The Special Judge is also empowered to try under Section 3(1)(b) any conspiracy to Page 17 of 25 HC-NIC Page 17 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
To make it more precise, following offences would come within the scope of Section 3(1) of the PC Act:
(1) Any offence punishable under the PC Act.
(2) Any conspiracy to commit any offence punishable under the PC Act (3) Any attempt to commit any offence punishable under the PC Act.
(4) Any abetment of any offence punishable under the PC Act.
26. Let us examine what are the offences specified in Clause (a) of Section 3(1) of the PC Act, for which reference has to be made to Chapter III of the PC Act.
26.1. Section 7 of the PC Act refers to offences dealing with public servant taking gratification, other than the legal remuneration in respect of an official act. Section 10 deals with punishment for abetment by a public servant of offences defined in Section 8 and 9. Section 11 of the PC Act refers to an offence of a public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. Offences under Section 7, 10 and 11 can be committed only by the public servant, though an offence under Section 7 can also be committed by a person expected to be a public servant. An offence under Section 7 or 11 could also be abetted by a non public servant, for which punishment has been prescribed under Section 12 of the PC Act.
26.2. Section 8 deals with the taking gratification, by corrupt or illegal means, Page 18 of 25 HC-NIC Page 18 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER to influence public servant. Section 9 deals with taking gratification, for exercise of personal influence with public servant. Offences under Sections 8 and 9 can be committed by a person who need not necessarily be a public servant. An offence under Sections 8, 9 or 12 can be committed by a public servant or by a private person or by combination of both.
26.3. Section 13 deals with the criminal misconduct by a public servant, which is exclusively an offence against the public servant relating to criminal misconduct. An offence under Section 13 is made punishable under Section 15 of the PC Act.
27. The above discussion would indicate that a public servant as well as a non public servant can commit offences punishable under the PC Act.
28. A Special Judge appointed under Section 3(1) of the PC Act has got jurisdiction to proceed exclusively against a public servant and exclusively against a nonpublic servant as well, depending upon the nature of the offence referred to in Chapter III of the PC Act. Junction of a public servant is not a must for the Special Judge to proceed against a non public servant for any offence alleged to have been committed by him under Chapter III of the PC Act. As already indicated, an offence under Section 8 or Section 9 can be committed by non public servant and he can be proceeded against under the PC Act without joinder of any public servant. For example:
(i) Section 7 of the Act uses the words "Whoever, being, or expecting to be a public servant...."
(ii) Sections 10 and 11 of the Act use the words "Whoever, being a public servant....".
(iii) Section 13 uses the words "A public servant is said to commit.....".Page 19 of 25
HC-NIC Page 19 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER Thus, offences under Section 7, 10 , 11 and 13 of the PC Act can be committed by a public servant though an offence under Section 7 can be committed also by a "person expected to be a public servant". On the other hand:
(i) Section 8 uses the words "whoever...", simpliciter, without using any other qualifying words.
(ii) Likewise, Section 9 and 12 also use the words "whoever..." simpliciter.
Thus, an offence under Sections 8, 9 or 12 can be committed by any person, who need not necessarily be a public servant. Such an offence can, therefore, be committed by a public servant or by a private person or by a combination of the two.
29. It is thus clear that an offence under the PC Act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of Section 4(1) of the PC Act, read with Section 3(1) thereof, such offences can be tried only by a Special Judge. For example:
(i) A private person offering a bribe to a public servant commits an offence under Section 12 of Act. This offence can be tried only by the Special Judge, notwithstanding the fact that only a private person is the accused in the case and that there is no public servant named as an accused in that case.
(ii) A private person can be the only accused person in an offence under Section 8 or Section 9 of the said Act. And it is not necessary that a public servant should also be specifically named as an accused in the same case. Notwithstanding the fact that a private person is the only accused in an Page 20 of 25 HC-NIC Page 20 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER offence under Section 8 or Section 9, it can be tried only by a Special Judge.
30. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as nonPC offences, depending upon the facts of the case. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act."
As held by the Apex Court in the above referred case of State Through Central Bureau of Investigation, New Delhi (supra), a private person or public as well as private person together can be made liable for offence under sections 8, 9 and/or 12 of the Prevention of Corruption Act and investigating papers prima facie reveals the same.
25.It would be appropriate to refer to the judgment of the Apex Court in the case of State of Maharashtra and Anr. vs. Prabhakarrao & Anr. Reported in (2002) 7 SCC 636. Considering the ratio laid down in the case of State of Maharashtra (supra), the contention raised that Page 21 of 25 HC-NIC Page 21 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER the data operators are not public servants as defined under section 21 of the IPC also deserves to be negatived.
26.Considering the conduct of the applicant and following the ratio of the Apex Court in the case of State vs. Anil Sharma reported in (1997) 7 SCC 187, custodial interrogation of the applicant is necessary. It would be appropriate to refer to the following observations of the Apex Court in the case of State vs. Anil Sharma (supra), which reads as under "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 of the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disintering many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a prearrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the oustodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disintering offences would not conduct themselves as offenders.
7. The High Court has approached the issue as through it was considering a prayer for Page 22 of 25 HC-NIC Page 22 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER granting regular bail after arrest. Learned Single Judge of the High Court reminded himself of the principle that it is wellsettled that bail and not jail is a normal Rule and then observed thus:
"unless exception circumstances are brought to the notice of the Court which may defeat the proper investigation and bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such expansional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant.
27. The above observation are more germans while considering an application for post arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate learned Single Judge ought not have sidestepped the apprehension expressed by the CBI (that respondent would influences the witness) as one which can be made against all accused person all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office."
28.In facts of this case, as observed hereinabove, the role attributed to the applicant and gravity of the offence requires custodial interrogation. The facts reveal that the same is a large scale wellplanned racket, which has caused loss to the public exchequer. As noted hereinabove, the lead which the investigating agency has derived because of custodial interrogation of other Page 23 of 25 HC-NIC Page 23 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER accused has unearthed role of internal auditor as well as CEO of the said company. Therefore, even the contention raised that the FIR is lodged against the persons who are not Government servants also deserves to be negatived.
29.The applicant is part of team which as such has not only permitted defaulting vehicles to cross the border without payment of penalty but has been instrumental in a huge financial loss to the State Exchequer in a preplanned systematic method with help of all accused in conspiracy with each of them. The investigation papers reveal that the applicant is the kingpin of the whole racket and as rightly contended by learned Public Prosecutor, custodial interrogation of the applicant is necessary. In facts of this case, conduct of the applicant, the exact role of the applicant and gravity of offence, no parity can be granted as accused no.2 has been granted regular bail.
30.The contention that the applicant is an eyesore because of the earlier complaints in his different role as RTI Activist, as such, does not take the case of the applicant any further.
31.In light of the aforesaid observations and considering the fact that the investigation is at a very crucial stage, no lenient view can be taken and also considering the conduct of the present petitioner who is subjected to warrant Page 24 of 25 HC-NIC Page 24 of 25 Created On Sun May 01 04:07:47 IST 2016 R/CR.MA/6763/2016 ORDER under section 70 of the Code and also in facts of this case, custodial interrogation of the petitioner is necessary. Consequently, it is not a fit case for grant of any discretion in favour of the petitioner by enlarging the petitioner on anticipatory bail under section 438 of the Code. The petition is therefore dismissed. Rule discharged.
(R.M.CHHAYA, J.) bjoy Page 25 of 25 HC-NIC Page 25 of 25 Created On Sun May 01 04:07:47 IST 2016