Allahabad High Court
Yadav Singh vs Cbi And Another on 19 April, 2024
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:69017 Reserved on 10.4.2024 Delivered on 19.4.2024 Court No. - 79 Case :- APPLICATION U/S 482 No. - 2270 of 2024 Applicant :- Yadav Singh Opposite Party :- CBI And Another Counsel for Applicant :- Apurva Hajela, Om Prakash Tripathi Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
1-Heard Mr. Manish Gupta, learned advocate, assisted by Mr. Om Prakash Tripathi and Mr. Apurva Hajela, learned counsel for the applicant as well as Mr. Gyan Prakash, learned Senior Advocate, assisted by Mr. Sanjay Kumar Yadav, learned counsel appearing on behalf of C.B.I. at length and perused the record.
2-The instant application under Section 482 Cr.P.C. has been preferred by the applicant with the following prayer:-
(a). To quash/set aside the impugned order dated 21.12.2023 passed by Special Judge, Anti Corruption, CBI, Ghaziabad, in Special Case No. 05/2021 (CBI vs. Yadav Singh and others) arising out of Supplementary Charge Sheet dated 06.10.2021 under Section 120-B r/w 420, 465 and 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, P.S. CBI/STF, New Delhi.
(b). To direct the court below to accept the Bail Bonds/undertakings of the Applicant for his further appearance in Special Case No. 05/2021 arising out of Supplementary Charge Sheet filed on 06.10.2021 in Case Registered as RC/DST/2015/A/004/CBI/STF/DLI dated 30.7.2015.
(c). The applicant may be permitted to renew / file fresh Bail Bonds in pursuance of the Supplementary Charge-Sheet filed on 06.10.2021.
3-In nutshell, the facts of the case are that on 13.01.2012, an FIR was registered against applicant Yadav Singh and others at Case Crime No. 371/2012 under Sections 120B IPC r/w 409, 420, 466, 467, 469, 471 IPC and under Sections 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 at Police Station Sector-39, NOIDA, Gautam Budh Nagar, U.P. for the alleged corrupt practice while executing engineering work between 14.12.2011 and 23.12.2011 in which 1280 agreement bonds for Rs. 954.38 crores were executed by the Engineering Department of NOIDA. After investigation, the State police submitted the closure report which was accepted by District and Sessions Judge, Gautam Budh Nagar on 27.11.2014.
3.1-Thereafter, Lucknow Bench of this Court in Misc. Bench No. 12396 of 2014 (Dr. Nutan Thakur vs. State of U.P. and others) passed an order dated 16.07.2015 directing the CBI to conduct investigation into all allegations of corruption and amassing of unaccounted money against the applicant Yadav Singh, the then Chief Engineer, Noida, Greater Noida and Yamuna Express Authorities and in regard to all transactions, persons and entities connected thereto. In compliance of the above order dated 16.7.2015 of High Court, CBI registered a regular case on 30.07.2015 bearing F.I.R. No. RC/DST/2015/A/0004/CBI/STF/ DLI, against the applicant and unknown persons under Sections 120-B IPC r/w 409, 420, 466, 467, 469, 471 IPC and under Section 13 (2) r/w Sections 13 (1) (d) of Prevention of Corruption Act, 1988.
3.2-Pursuant to order dated 16.07.2015 of the High Court, C.B.I. is conducting separate investigation with regard to each contract bonds. Earlier C.B.I. had submitted three charge sheets regarding different contract bonds and disproportionate asset against the applicant. Details whereof are as under :-
(i) With regard to contract bonds No. 375, 376 and 382, first charge sheet No. 2 of 2016 dated 15.03.2016, under Sections 120-B IPC r/w 420, 109, 468, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act was filed and registered as Special Case No. 10 of 2016 before the trial Court.
(ii) With regard to contract bonds No. 24 and 31, second charge sheet No. 06 of 2017, dated 31.05.2017, under Sections 120-B IPC r/w 420, 468, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act was filed and registered as Special Case No. 03 of 2017 before the trial Court.
(iii) With regard to disproportionate asset, third charge sheet No. 10 of 2017, dated 26.09.2017, under Sections 120-B IPC & Section 13(2) read with Section 13(1) (e) of the PC Act was filed and registered as Special Case No. 08 of 2017 before the trial Court.
3.3-The applicant was arrested by the CBI and he has moved three separate bail applications in the cases registered against him before the trial court on the basis of above mentioned charge-sheets Nos. 02 of 2016, 06 of 2017 and 10 of 2017 arising out of F.I.R. No. RC/DST/2015/A/0004/CBI/STF/DLI being Criminal Misc. Bail Application nos. 4774 of 2019, 4784 0f 2019 and 4782 of 2019 before the High Court.
3.4-The bail application Nos. 4774 of 2019 and 4784 of 2019 of the applicant was rejected by the High Court vide common order dated 30.5.2019 whereas bail application No. 4782 of 2019 of the applicant was rejected by the High Court vide separate order dated 30.05.2019. Against which the applicant preferred Petition(s) for Special Leave to Appeal (Crl.) No. 6391-6393/2019 before Hon'ble the Supreme Court, which was disposed of vide order dated 01.10.2019 granting bail to the applicant. The said order is quoted as under:-
"Having heard learned counsel for the parties, we deem it appropriate to enlarge the petitioner on bail, subject to the terms and conditions to be imposed by the trial Court.
However, since Mr. Tushar Mehta, learned Solicitor General has an apprehension that if let out on bail, evidence/witnesses may be tampered with, it will be open for the respondent to apply for cancellation.
The Special Leave Petitions stand disposed of."
3.5-The present case is related to different contract bond No.133, which is one of the 1280 contract bonds. The CBI after completing investigation with regard to contract bond No. 133/Job No.159/CPE/SPE-II/PE-IV/201112, C.B.No.133/SFAO/CDE/PE-II/ CCD-IV11-12 dated 23.12.2011 (Construction of Cricket Stadium with Pavilion Building at Integrated Sports Complex, Sector 21-A, Noida), submitted Supplementary Charge-Sheet No. 05 of 2021 dated 06.10.2021 for commission of offence under Sections 120-B, 420, 465 and 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 against following persons:-
(i) Yadav Singh (present applicant), the then CME (Jal)/Chief Engineer/Engineer-in-Chief.
(ii) R. K. Johri, the then JE (T).
(iii) Anil Sharma, the then JE (Contract).
(iv) R. K. Jain, the then APE.
(v) S.K. Gupta, the then PE.
(vi) Deepak Kumar, the then JE,
(vii) Santosh Kumar Srivastava, the then CPE (retired).
(viii) Sant Ram, the then CPE (viii).
(ix) A.C. Singh, the then Finance Controller.
(x) Devandra Kumar Gangal, Director of M/s Anand Buildtech Pvt. Ltd./JV.
(xi) N.U. Khan, the then Sr. Consultant of M/s STUP Consultants Pvt. Ltd.
(xii) M/s Anand Buildtech JV through Director Devandra Kumar Gangal.
3.6-In paragraph No. (xviii) of the above supplementary charge sheet No. 05 of 2021, it is mentioned by the C.B.I that from the investigation of this case, it is established that "Anil Sharma, the then JE (Contract), Deepak Kumar, the then JE, R.K.Johri, the then JE (T), R.K. Jain, the then APE, S. K. Gupta, the then PE, Santosh Kumar Srivastava, the then CPE, Sant Ram, the then CPE, Yadav Singh, the then CME/Chief Engineer/Engineer-in-Chief and A.C. Singh, the then FC have facilitated approval of the inflated estimate and further violated existing rules and regulations in allotting work to M/s Anand Buildtech JV through corrupt and illegal means in connivance with DDevandra Kumar Gangal, Director, M/s Anand Buildtech JV and N.U. Khan, the then Sr. Consultant of M/s STUP Consultants Pvt. Ltd., by abusing their respective official position which caused wrongful loss to the tune of Rs. 86,81,267.48/- to the NOIDA and corresponding wrongful gain to the said private contractor namely M/s Anand Buildtech Pvt. Ltd./JV."
3.7-In paragraph No. (xx) of supplementary charge sheet No. 05 of 2021, it is further mentioned that "it was also revealed that Shri Sanjiv Saran, the then CEO, NOIDA, Sh. L.K. Gupta, the then Sr. Project Engineer, CCD-IV Division, NOIDA in criminal conspiracy with Shri A G Sirkar, Chief Consultant of M/s STUP Consultants Pvt. Ltd. by abusing their official positions as public servants and also by blatant violation of existing rules and regulations have shown undue favour and appointed M/s STUP Consultants Pvt. Ltd. as a consultant for the project of Construction of said Cricket Stadium in Noida, in 2005. Further, M/s STUP Consultants Pvt. Ltd. has prepared and submitted an inflated estimate of items for the said project to Noida authority. It was prepared on single quotation for 57 non-scheduled items, which was found to be high. These estimates were not even verified by the concerned official of Noida authority. On the basis of the said estimate, the tender process for the said projects of construction of said Cricket Stadium in Noida was initiated and finally awarded to m/s Anand Buildtech Pvt. Ltd. (JV) on inflated rates."
3.8-On the aforesaid supplementary charge-sheet dated 06.10.2021, Trial Court took cognizance of the offence and summoned the applicant vide order dated 14.12.2021 to face trial for the alleged offence under Sections 120-B, 420, 465 and 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
3.9-Thereafter on 07.10.2021 applicant preferred a Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 17302 of 2021 before the High Court seeking following relief :
"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."
3.10-During the pendency of above anticipatory bail application before the High Court, applicant Yadav Singh preferred I.A. No. 6995 of 2022 dated 17.01.2022 in Misc. Application No. 1849 of 2021 filed in SLP (Crl.) No. 5191 of 2021 before the Hon'ble Apex Court alleging inter-alia that upon filing of supplementary charge sheet dated 06.10.2021 by CBI, trial court has erroneously taken cognizance on 14.12.2021 and directed issuance of process to the applicant. The said application (I.A. No. 6995 of 2022) was dismissed as withdrawn vide order dated 20.01.2022 by the Hon'ble Supreme Court.
3.11-Thereafter, during the pendency of above anticipatory bail application, the applicant has moved an application dated 11.05.2022 in Special Case No. 05 of 2021 before the Court of Special Judge, Prevention of Corruption Act, Ghaziabad with following prayer:-
"a. The applicant be exempted from personal appearance on 13.05.2022 while recording appearance through Advocate;
b. Applicants' bail bond / undertaking for further appearance in Special Case No. 05 of 2021 arising out of Supplementary Charge-Sheet filed on 06.10.2021 in RC/DST/2015/A/004/CBI/STF/DLI dated 30.7.2015, be accepted on such terms and conditions as the Hon'ble Court may deem just and expedient.
c. In the alternative, in case Hon'ble Court directs, the applicant is willing to renew / file fresh Bail Bonds incorporating facts of filing of the Supplementary Charge-Sheet in FIR bearing No. RC/DST/2015/A/004/CBI/STF/DLI dated 30.7.2015.
d. Pending hearing and final disposal of the application, at the interim / ad-interim stage, the applicant's bail bonds / undertaking for further appearances in the above matter may be accepted on provisional basis."
3.12- During pendency of the above mentioned application dated 11.05.2022 of the applicant before the Trial Court, the Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 17302 of 2021 of the applicant was rejected vide order dated 30.09.2022 by the High Court, but the said order dated 30.09.2022 was filed by the applicant after one year and two months on 30.11.2023 before the Trial Court.
3.13-Thereafter, application No. 116-kha dated 11.05.2022 of the applicant was rejected by the trial court vide order 21.12.2023, which is the subject matter of challenge in the present application.
4-On 13.03.2024 matter was also heard at length and following submissions were raised on behalf of the applicant:-
(i) The present case is related to contract Bond No. 133 out of 1280 Contract Bonds.
(ii)From the supplementary charge-sheet dated 06.10.2021 submitted by C.B.I., it is not clear whether the same has been filed against the applicant for the alleged offence under Section 120-B I.P.C read with Sections 409, 420, 466, 467, 469, 471 I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 as mentioned in Column No. (11)(xvi) of the supplementary charge- sheet or under Section 120-B, 420, 465 and 471 I.P.C. and Section 13(2) read with Section 13(1)(d) of PC Act as mentioned in Paragraph No. (xxiii) of the supplementary charge-sheet dated 06.10.2021.
(iii) The contents mentioned in Column No. (11)(xiii) of the supplementary charge-sheet dated 06.10.2021 depict that applicant arrested in the same case in other instances is incorrect because on the day of filing supplementary charge-sheet dated 06.10.2021, applicant was not arrested in any case.
(iv) As per the contents mentioned in Paragraph No. (xx) of the supplementary charge-sheet dated 06.10.2021, it is the case of the C.B.I. that investigation revealed that Sanjiv Saran, the then CEO, NOIDA, Shri. L.K. Gupta, the then Sr. Project Engineer, CCD-IV Division, NOIDA in criminal conspiracy with Shri. A.G. Sirkar, Chief Consultant of M/s STUP Consultants Pvt. Ltd. by abusing their official positions as public servants and also by blatant violation of existing rules and regulations have shown undue favour and appointed M/s STUP Consultants Pvt Ltd as a Consultant for the project of Construction of said Cricket Stadium in Noida in 2005, which is related to Contract Bond No. 133, but they have not been made accused and no charge- sheet has been submitted against them.
On the above submissions, this Court vide order dated 13.03.2024 granted time to CBI to file specific reply along with order-sheet of the trial Court and complete copy of the supplementary charge-sheet dated 06.10.2021.
5-Pursuant to above order dated 13.03.2024, C.B.I. has filed supplementary counter affidavit dated 09.04.2024 in the Court itself, which was taken on record.
6-Main substratum of argument of learned counsel for the applicant is that the applicant is already on bail in previous two cases of similar nature pursuant to charge sheet No. 2 of 2016 dated 15.03.2016, under Sections 120-B IPC r/w 420, 109, 468, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act and charge sheet No. 6 of 2017 dated 31.05.2017, under Sections 120-B, 420, 468, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act arising out of F.I.R. dated 30.07.2015, therefore, applicant is not required to seek regular bail under Section 439 Cr.P.C. in the present case pursuant to impugned supplementary charge-sheet No. 5 of 2021 dated 06.10.2021 under Sections 120-B IPC r/w 420, 465, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act, 1988, even after rejection of his anticipatory bail application under Section 438 Cr.P.C. in the above Sections by the High Court. Much emphasis has been given by contending that since new Section 465 IPC has been added in supplementary charge-sheet No. 5 of 2021 dated 06.10.2021, therefore the applicant is required to furnish bail bond only in terms of Section 88 Cr.P.C. for the alleged offence under Section 465 IPC. Several other allied submissions have been made by contending that facts mentioned in paragraph No. (11) (1) (xiii) of the supplementary charge-sheet dated 06.10.2021 stating that applicant arrested in the same case in other instances is incorrect. The Sections of the alleged offence as mentioned in paragraph No. (11) (1) (xvi) and in Paragraph No. 16 (xxiii) of the supplementary charge-sheet dated 06.10.2021 are self contradictory. The Trial Court after receiving and going through the supplementary charge sheet No. 05 of 2021 dated 06.10.2021 has passed the order dated 06.10.2021 for registering the same as miscellaneous case mentioning that the charge sheet has been filed under Sections 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, whereas vide order dated 14.12.2021, applicant has been summoned under Sections 120-B IPC, 420, 465, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act, 1988. The Trial court has wrongly and illegally rejected the application dated 11.05.2022 of the applicant vide impugned order dated 21.12.2023 which is not sustainable. It is also submitted that co-accused Rakesh Kumar Jain has been granted anticipatory bail vide order dated 03.02.2023 in SLP (Crl.) No. 11208 of 2022. Lastly it is submitted that pursuant to supplementary charge-sheet No. 5 of 2021 dated 06.10.2021, applicant may be allowed to furnish bail bonds for the alleged offence under Section 465 IPC in terms of Section 88 Cr.P.C. and direction be issued to the trial Court also to accept the bail bond of the applicant. Learned counsel for the applicant in support of his submission has placed reliance upon following judgments:-
(I) Mithabhai Pashabhai Patel Vs. State of Gujarat 2009 (3) GCD 1753 (SC),
(ii) Pradeep Ram versus State of Jharkhand and another (2019) 17 SCC 326
(iii) Sureshpal and others Vs. State of U.P. and others (Neutral Citation No. AHC 211099 )
(iv) Satender Kumar Antil Vs. C.B.I. and others decided on 07.10.2021, (2021) 10 SCC 773.
(v) Satender Kumar Antil Vs. C.B.I. and Another, 2022 Live-Law (SC) 577 decided on 11.07.2022.
7-On the other hand, Mr. Gyan Prakash, learned Senior Advocate appearing for CBI submits that the supplementary charge sheet No. 05 of 2021 dated 06.10.2021 of this case has no concern with both the previous charge sheets No. 02 of 2016 dated 15.03.2016 and 06 of 2017 dated 31.05.2017, because the same were filed against the applicant with regard to different contract bonds on different issue. In the present case after filing supplementary charge sheet dated 06.10.2021, the anticipatory bail application under Section 438 Cr.P.C. moved by the applicant has already been rejected by the High Court vide order dated 30.09.2022 and the same has not been challenged by the applicant before the Hon'ble Apex Court. It is not a case of addition of new section in relation to contract bond No. 133 and the submission of learned counsel for the applicant in this regard is misleading. So far as other submissions of the learned counsel for the applicant as argued and noted in the order dated 13.03.2024 of this Court is concerned, Mr. Gyan Prakash referring the supplementary counter affidavit dated 09.04.2024, submitted that since the applicant was previously arrested pursuant to charge sheets No. 02 of 2016 dated 15.03.2016, 06 of 2017 dated 31.05.2017 and charge sheet No. 10 of 2017, dated 26.09.2017, therefore on the joint reading of contents of paragraph No. (11) (1) (xiii) and (xvi) of the supplementary charge sheet No. 05 of 2021 dated 06.10.2021, there is nothing wrong. It is also pointed out that in paragraph No. (11) (1) (xvi) of the supplementary charge sheet No. 05 of 2021 dated 06.10.2021, the sections of F.I.R. has been mentioned, whereas in paragraph No. (16) (xxiii), Sections of charge sheet have been mentioned, hence there is no wrong. However Mr. Gyan Prakash, learned senior counsel fairly conceded that despite involvement of Mr. Sanjiv Saran, the then CEO, NOIDA, Shri. L.K. Gupta, the then Sr. Project Engineer, CCD-IV Division, NOIDA in criminal conspiracy with Shri A.G. Sirkar, Chief Consultant of M/s STUP Consultants Pvt. Ltd. in the matter as mentioned in paragraph No. 16 (xx) of the supplementary charge sheet No. 05 of 2021 dated 06.10.2021, CBI has not made them accused.
8-Having heard the submissions of learned counsel for the parties and perusing the record, I find that :-
8.1-It is not in dispute that previous two charge sheets No. 02 of 2016 dated 15.03.2016 and 06 of 2017 dated 31.05.2017 filed by CBI against the applicant are with regard to different contract bonds No. 375, 376 & 382 and contract bonds No. 24 & 31 respectively and separate case number being Special Case No. 10 of 2016 and Special Case No. 03 of 2017 have been allotted to the above charge sheets. Trial Court took cognizance separately on each charge sheet and trial of those cases are also proceeding separately.
8.2-So far as impugned supplementary charge sheet No. 05 of 2021 dated 06.10.2021 of this case is concerned, the same is related to different contract bond No. 133, which is a separate issue relating to construction of Cricket Stadium with Pavilion Building at Integrated Sports Complex, Sector 21-A, Noida and has no concern with the earlier charge sheets filed against the applicant.
8.3-The impugned supplementary charge sheet No. 05 of 2021 dated 06.10.2021 under Sections 120-B IPC r/w 420, 465, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act, 1988, has also been registered separately as Special Case No. 05 of 2021, on which learned Trial Court took cognizance and summoned the applicant vide order dated 14.12.2021, which is a separate case / trial, in which the anticipatory bail application under Section 438 Cr.P.C. of the applicant has already been rejected by the High Court vide order dated 30.09.2022 and thereafter no bail application under Section 439 Cr.P.C. has yet been moved by the applicant.
8.4-I also find that it is not a case of addition of new section 465 IPC in the previous two charge sheets No. 02 of 2016 dated 15.03.2016 and 06 of 2017 dated 31.05.2017.
8.5-Applicant is not on bail in the present case arising out supplementary charge sheet No. 05 of 2021 dated 06.10.2021. Hence submission of the learned counsel for the applicant that he is already on bail in the present case in all the Sections except under Section 465 IPC and he is not required to seek regular bail under Section 439 Cr.P.C. in the present case even after rejection of his anticipatory bail under Section 438 Cr.P.C. in the instant case is a misleading argument and is not sustainable, hence same is liable to be rejected.
8.6-I also find that from the contents of paragraph No. (16) (xxiii) of the impugned supplementary charge sheet date 06.10.2021, it is clear that charge sheet in this case relating to contract bond No. 133 has been filed against the applicant for the offence under Sections 120-B IPC r/w 420, 465, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act, 1988, and accordingly applicant has been summoned in those sections, hence other allied submissions in this regard made on behalf of the applicant are misleading and has no force of law.
8.7-So far as the facts that despite involvement of Mr. Sanjiv Saran, the then CEO, NOIDA and Mr. L.K. Gupta, the then Sr. Project Engineer, CCD-IV Division, NOIDA in criminal conspiracy with Mr. A.G. Sirkar, Chief Consultant of M/s STUP Consultants Pvt. Ltd, they have not been made accused is concerned, I find that no satisfactory reply has been submitted on behalf of the CBI. As per stand of the CBI, a petition has been filed before the Lucknow Bench of this High Court seeking clarification in the order dated 16.07.2015 on the aspect of filing charge sheet in the matter of appointment of consultant M/s STUP Consultant Pt. Ltd, but Mr. Gyan Prakash learned Senior Counsel for the CBI could not apprise this Court about the particulars of alleged petition and present status of the same and gave evasive reply in this regard.
8.8-So far as the case of co-accused Mr. Rakesh Jain is concerned, I find that only one charge sheet has been submitted against him and he has been granted anticipatory bail by the Hon'ble Supreme Court vide order dated 30.02.2023, but the same is not helpful to the applicant at this stage because anticipatory bail application of the applicant in the case in hand has already been rejected by the co-ordinate bench of this Court vide order dated 30.09.2022 and thereafter the applicant instead of challenging the order dated 30.09.2022 before the Hon'ble Apex Court or moving regular bail seeking direction to extend the benefit of Section 88 Cr.P.C. to him.
8.9- It is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect of the case.
9-Now I proceed to discuss the proposition of law which emerges from the judgments relied upon by the learned counsel for the applicant, which are as follow:-
9.1-In Mithabhai Pashabhai Patel Vs. State of Gujarat 2009 (3) GCD 1753 (SC), the issue involved was in respect of custodial remand of the accused arising out of Godhra incident and communal riots erupted thereafter in the year 2002 and question before the Apex Court for consideration was whether with the change of an investigating authority, police custody of the accused on remand for the purpose of further investigation can be sought for, although cognizance of the offence had already been taken and accused were granted bail by the High Court.
After giving my thoughtful consideration, I find that no such issue is involved in the case in hand, hence, the case of Mithabhai Pashabhai Patel (supra) is distinguishable on the facts of present case.
9.2-So far as judgment of the Apex Court in the case of Pradeep Ram versus State of Jharkhand and another (2019) 17 SCC 326 relied on behalf applicant is concerned, I find that the facts in said case was that F.I.R. was registered against the accused on 11.01.2016 under Section 414, 384, 386, 120B IPC read with Section 259(1-B)(a), 26, 35 of Arms Act and Section 17 (1) and (2) of the Criminal Law Amendment Act. Accused was taken into custody and granted bail on 10.03.2016 by High Court. After submission of charge sheet, cognizance with respect to said offence was taken on 11.03.2016 and charges were framed on 19.09.2016. Thereafter prayer of the investigating officer made on 09.04.2017 to add certain new offences under Sections 16, 17, 20 and 35 of the unlawful Activities (Prevention) Act, 1967 was allowed. The new offences were specified as Scheduled offences under the National Investigation Agency Act, 2008, in respect of which only NIA constituted under National Investigation Agency Act, 2008, was required to investigate the case, therefore case was transferred to NIA, who took over the investigation and re-registered the F.I.R. The case then stood transferred to Special Court under NIA Act. Accused at that time was in jail in some other case. The accused was produced before the Special Court and remanded to judicial custody. Thereafter issue of re-registration of F.I.R., reinvestigation by NIA and other related issue of arrest etc in added sections ware raised before the Hon'ble Apex Court, in which issue No.1, on which reliance has been placed on behalf of the applicant was that:-
"Whether in a case where an accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody." ?
The Apex Court answered the aforesaid issue No.1 in para 31, which are as under:-
"31. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:
31.1 The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.
31.2 The investigating agency can seek order from the court under Section 437(5) or 439(2) Cr.P.C. for arrest of the accused and his custody.
31.3 The court, in exercise of power under Section 437(5) or 439(2) Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-bailable offences which may not be necessary always with order of cancelling of earlier bail.
31.4 In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences, it needs to obtain an order to arrest the accused from the court which had granted the bail."
I find that the facts and issue involved in the case of Pradeep Ram (supra) is distinguishable from the facts of this case, as the case in hand is not a case of addition of any new Section relating to previous two charge sheets No. 02 of 2016 dated 15.03.2016 and 06 of 2017 dated 31.05.2017, in which the applicant is on bail. Hence the same is not helpful to the applicant.
9.3-So far as case of Sureshpal and others Vs. State of U.P. and others (Natural Citation No. AHC 211099 ) is concerned, I find that in the said case First Information Report was registered under Section 147, 148, 149, 323, 504, 506 and 352 IPC and subsequently on further medical examination during the course of investigation, the offence under Section 325 and 308 IPC were added. The accused preferred anticipatory bail application on apprehension that in view of the addition of non bailable offences, he can be arrested. The High Court considering the case of Pradeep Ram (supra) dismissed the said anticipatory bail application of the accused leaving it open to him to adopt appropriate proceedings in accordance with law.
9.4-The Apex Court in the case of Satender Kumar Antil Vs. C.B.I. and others decided on 07.10.2021 has laid down four categories (A, B, C and D) / types of offences giving guidelines for grant of bail without fettering the discretion of the court concerned and keeping in mind the statutory provisions.
In the case in hand, after rejection of Anticipatory Bail Application of the applicant vide order dated 30.09.2022, applicant has not moved bail application pursuant to impugned charge sheet No. 5 of 2021 dated 06.10.021.
9.5-The Apex Court in the case of Satender Kumar Antil Vs. C.B.I. and others decided on 11.07.2022 has settled several issues, out of which one issue is relating to interpretation of Section 170 of Cr.P.C., regarding which it is held inter-alia that it is only in a case where accused is neither arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the Court. Here it is relevant to mention that despite rejection of anticipatory bail application of the applicant in the present case on 30.09.2022, he has not appeared or surrendered before the trial Court, even after issuance of summons and bailable warrant. The benefit of case of Satender Kumar Antil (Supra) may be extended only after appearance of the applicant before the concerned trial Court.
10-Here it would also be useful to refer some other relevant judgments of the Apex Court, wherein law has been settled in such matters.
10.1-The Hon'ble Apex Court in the case of Pankaj Jain versus Union of India and another (2018) 5 SCC 743, considering several judgments on the issue including the judgment in the case of Sanjay Chandra versus C.B.I. 2011 SCC Online Del 2365 has elaborately considered the provisions of Section 88 Cr.P.C. and held that the power under Section 88 Cr.P.C. is not mandatory. It does not confer any right on any person to be released on his furnishing a bond. Relevant observations made in paragraph nos. 21 and 22 of the judgment in the case of Sanjay Chandra (supra), which has been impliedly affirmed in the case of Pankaj Jain (supra) are as under :-
21. The interpretation sought to be given by the petitioners is misconceived and based on incorrect reading of Section 88 Cr.P.C., which is reproduced thus:
'88 Power to take bond for appearance.------When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without a sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial'
22. On reading of the above, it is obvious that Section 88 Cr.P.C. empowers the Court to seek bond for appearance from any person present in the Court in exercise of its judicial discretion. This Section also provides that aforesaid power is not unrestricted and it can be exercised only against such persons for whose appearance or arrest the Court is empowered to issue summons or warrants. The word used in the section are 'may require such person to execute a bond' and any person present in the Court. The user of word 'may' signifies that Section 88 Cr.P.C. is not mandatory and it is a matter of judicial discretion of the Court. The word 'any person' signifies that the power of the Court defined under Section 88 Cr.P.C. is not accused specific only, butit can be exercised against other category of persons such as witness whose presence the Court may deem necessary for the purpose of inquiry or trial. Careful reading of Section 88 Cr.P.C. makes it evident that it is a general provision defining the discretionary power of the Court, but it does not provide that how and in what manner this discretionary power is to be exercised. It does not confer any express right of the person / accused. The petitioners are accused of having committed non-bailable offences, therefore their case for bail falls within Section 437 Cr.P.C. which is the specific provision dealing with grant of bail to an accused in case of non-bailable offences. Thus on conjoint reading of section 88 and 437of Cr.P.C. it is obvious that section 88 is not an independent section and it is subject to section 437 Cr.P.C. Therefore, I do not merit in the contention that order of learned Special Judge refusing bail to the petitioners is illegal being violative of Section 88 Cr.P.C."
10.2-Another relevant judgment on the point is the judgment of the Patna High Court in the case of Anand Deo Singh versus State of Bihar 2000 SCC Online Pat 311, wherein the Patna High Court had the occasion to consider Section 88 Cr.P.C. and held that:-
"18. In my considered view, Section 88 of the code is an enabling provision, which vests a discretion in the Magistrate to exercise power under the said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it can not be resorted to in cases of serious offences. Section 436 of the code itself provides that bond may be asked for only in case of bailale offences."
10.3-This Court in the case of Chheda Lal versus State of U.P. 2002 (44) Allahabd Criminal Cases 286 has held that if accused of non-bailable offence appears before the Court, he has to apply for bail under chapter XXXIII of Cr.P.C. He cannot be released on the bond of Section 88 Cr.P.C.
10.4-The Hon'ble Apex Court in the case of Niranjan Singh and another Versus Prabhakar Rajaram Kharote and others, (1980) 2 SCC 559, considering the question as to whether bail can be granted to an accused, who is not in custody, held that no person accused of an offence can move the court for bail under Section 439 Cr.P.C. unless he is in custody. Further considering as to when a person can be said to be in custody, the Hon'ble Apex Court held that if he is in duress either because he is held by the investigating agency or the police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. The Apex Court has further held that the 'custody', in the context of Section 439 Cr.P.C. is physical control or at least physical presence of the accused in court coupled with submission of jurisdiction and orders of the court.
11-In view of the above discussion, this Court is of the view that if accused has been summoned for a non-bailable offences and his anticipatory bail application has been rejected by the High Court, he cannot apply for utilization of Section 88 Cr.P.C. The accused has to apply for regular bail in accordance with law and Court has to decide the bail application on merits. In other words it can be said that the cases, where provisions of Chapter XXXIII of Code of Criminal Procedure is applicable, would not be dealt with by the procedure provided under Section 88 Cr.P.C. The considerations for granting bail are different and includes several other aspects, which are not to be considered while applying Section 88 Cr.P.C. For example, where a person is accused of a bailable offence and process are issued, as and when he appears before the Court either after his arrest or detention or otherwise, if he shows his readiness to give bail to the Court, he shall be released on bail. Therefore, a person accused of a bailable offence needs to be personally present before the Court and has to be ready to give bail before he has to be released on bail. But where a person is accused of non-bailable offence, as and when he appears before the Court whether by arrest or detention or otherwise, he may be released on bail under Section 437 Cr.P.C or 439 Cr.P.C. as the case may be subject to satisfaction of certain parameters settled for grant of bail. Here it is also relevant to mention that where there is overlapping power or provision, but one provision is specific while other is general, the law is well settled that specific and special provision shall prevail over the general provision in the matter of accused, Since the procedure with respect to bail and bonds, is provided under Chapter XXXIII of Cr.P.C.. In my view, under the facts of this case, Section 88 Cr.P.C. would not be attracted, hence submissions advanced on behalf of the applicant are not liable to be accepted.
12-In view of the above, the applicant is not entitled to the benefit of Section 88 Cr.P.C.
13-As a fall out and consequence of above verbose discussion and principles of law laid down by the Hon'ble Apex Court as noted above, I do not find any illegality in the impugned order dated 21.12.2023, which is wholly impeccable.
14-The application lacks merit and is accordingly rejected.
15-Needless to say that in case applicant appears and apply for regular bail under Section 439 Cr.P.C., the same shall be decided in the light of judgment of the Apex Court in the case of Satender Kumar Antil Vs. C.B.I. and Another, (2021) 10 SCC 773.
Order Date :- 19.4.2024 Saurabh