Chattisgarh High Court
Satish Chandra Verma vs State Of Chhattisgarh on 13 February, 2025
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2025:CGHC:7845
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MCRCA No. 1369 of 2024
Order reserved on 10/12/2024
Order delivered on 13/02/2025
Satish Chandra Verma S/o Shri V.S. Verma Aged About 52 Years R/o Shri
Ram Park Colony, Industrial Area, Tifra, District Bilaspur, Chhattisgarh.
... Applicant
versus
State Of Chhattisgarh Through P.S. Anti-Corruption Bureau/Economic
Offences Wing, Raipur, District Raipur, Chhattisgarh.
... Respondent
(Cause title taken from Case Information System)
For Applicant : Mr. Kishore Bhaduri, Senior Advocate
along with Mr. Sabyasachi Bhaduri,
Advocate
For Respondent/State : Dr. Saurabh Kumar Pande, Deputy A.G.
along with Mr. Mayur Khandelwal, Panel
Lawyer
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The applicant, Satish Chandra Verma, has filed the instant
anticipatory bail application under Section 482 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, apprehending his arrest in the
Digitally
signed by
VEDPRAKASH
DEWANGAN offence of crime No. 49/2024 registered at the police station, Anti
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Corruption Bureau/Economic Offence Wing, Raipur, Chhattisgarh
(hereinafter called as "ACB/EOW") for the offence punishable under
sections 182, 211, 193, 195A, 166A, 120B of IPC and section 7, 7A,
8 and 13(2) of the Prevention of Corruption Act, 1988 (as amended in
the year 2018).
2. The prosecution case, in brief, is that the enforcement directorate
had shared the information about the commission of the offence
registered under the ECIR/RPSZO/01/2019, which is a large-scale
scam of Nagarik Apurti Nigam (widely known as "NAN" scam) to the
ACB/EOW as provided under Section 66(2) of the Prevention of
Money Laundering Act, 2002, (hereinafter called as "PMLA 2002")
vide its memo No. ECIR/RPSZO/01/2019 dated 02-04-2024, through
e-Mail. The said information is shared along with the documents. It is
informed that the Income Tax Department collected certain digital
evidence under Section 132(1) of the Income Tax Act, 1961, against
the accused Anil Tuteja and Alok Shukla in the Crime No. 09/2015
registered against them with the ACB/EOW. On the basis of that, the
ECIR/RPSZO/01/2019 is registered by the Enforcement Directorate.
While investigating the case, it is found that the accused, Anil Tuteja
and Alok Shukla, not only tried to obstruct the investigation of the
ECIR/RPSZO/01/2019 but also tried to influence the trial of the
offence of Crime No. 09/2015, which is pending before the learned
Special Court at Raipur, with the connivance of bureaucrats of the
Chhattisgarh Government and the officers holding constitutional
posts.
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3. After receiving the information from the Enforcement Directorate, the
ACB/EOW confidentially verified the information on their sources and
found that the accused, Alok Shukla, IAS, was posted as Principal
Secretary, Government of Chhattisgarh from 2018 to 2020, and the
accused Anil Tuteja, IAS, was also posted as Joint Secretary,
Government of Chhattisgarh between 2019 and 2020 as a public
servant. The present applicant, Satish Chandra Verma, was also
posted as Advocate General, Government of Chhattisgarh, at the
High Court of Chhattisgarh during the relevant period of 2019-2020.
Alok Shukla and Anil Tuteja were important officers of the State
Government who were having interference in the policy decision and
other operations of the Chhattisgarh Government. On observing the
WhatsApp chats and the documents attached to the information and
confidential verification, it is prima facie found that from the year
2019 to 2020, by misusing their respective position, gave undue
advantage to the present Applicant Satish Chandra Verma so that he
could motivate to change the documents and procedural information
to the officers of ACB/EOW and got their reply prepared in their
favour in the case to be presented before the High Court, so that the
accused persons may get the anticipatory bail in the case. It also
came that they created pressure upon the witnesses of Crime No.
09/2015 of ACB/EOW to change their statement and obtained the
documents of Crime No. 09/2015 of ACB/EOW through WhatsApp
chats.
4. After the registration of the FIR, the ACB/EOW started the
investigation into the matter in which the applicant Satish Chandra
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Verma apprehending his arrest and has filed the instant application
for grant of anticipatory bail.
5. Learned counsel for the applicant would submit that the manner in
which the offence has been registered against the applicant by the
State agency amounts to an attack on the system at their own whims
of the authorities. The applicant is a good, reputed lawyer with an
extreme standing position in the legal fraternity. The offence is
registered against him only on the basis of apprehension and
thinking that it might have happened. He would further submit that a
raid was conducted by the Income Tax Department in the house of
officers. During the raid, the mobile phone was seized, and after
opening the mobile phone, certain chats were recovered. In the
meantime, the offences were registered by ACB/EOW and the
Enforcement Directorate. This chat was produced by the
Enforcement Directorate before the Hon'ble Supreme Court in some
matters against the officers. The Enforcement Directorate has
produced those chats before the Hon'ble Supreme Court only to
impress upon the Hon'ble Supreme Court that such officers are
involved in all the proceedings. The Enforcement Directorate has
shared the information under Section 66(2) of the PMLA 2002 after
about four years after it actually happened, and the present FIR is
registered on 04-11-2024.
6. He would further submit that in the meantime, the political scenario in
the state of Chhattisgarh is changed, and the FIR has been
registered. The earlier government did not take any cognizance of
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the chats. During the trial of the NAN case, at no point in time did
either any witness, any accused, or any interested person make any
complaint anywhere that after the change of government, they were
being pressurised by any officer or any other agency to change their
statement or to conceal any evidence. The trial of the NAN case is in
progress. The officers were granted bail in ACB/EOW case 2 years
back from registration of the case by ED, but the present FIR is
registered on 04-11-2024 only to strengthen the case of the
Enforcement Directorate before the Hon'ble Supreme Court. The
case of the prosecution is based on WhatsApp chats, which do not
have any footage to stand.
7. It is further submitted that from the contents of the FIR, the
manipulation is alleged to be done to influence the trial of the case
and to prepare the general reply so that the accused persons can be
benefited, but there is no material of any undue influence. The
appointment of the learned Advocate General of the State is under
Article 165 of the Constitution of India with the consultation of the
Cabinet, and it cannot be even presumed that the accused persons
can influence the Cabinet. The FIR in the NAN case was registered
on 12-02-2015 and at that time the same government was ruling in
the state and on 05-12-2018, the ACB/EOW filed final report against
two accused persons in the NAN case. At the time of filing of the final
report in the year 2018, the present applicant was not in the picture.
The accused, Anil Tuteja, had filed his anticipatory bail application
before this court which was granted on 29-04-2019 and the accused,
Alok Shukla, was granted anticipatory bail on 16-10-2019. In both the
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bail applications, other counsels of the state have appeared. Since
the accused persons have already been granted bail in the NAN
case by this court, after considering the merits of the case, the
registration of the present case is only a pressure tactics, and the
pick-and-choose method has been adopted at the whims of the
authorities. He would also submit that in the WhatsApp chats, there
is nothing against the present applicant.
8. Relying upon the Lalita Kumari's case (2014 (2) SCC 1 "Lalita
Kumari vs. Government of Uttar Pradesh and others), the learned
counsel for the applicant would further submit that in the Corruption
case, the preliminary inquiry must be done before lodging of the FIR
but there is no preliminary inquiry. The NAN case is registered in the
year 2015, and ACB/EOW has registered the NAN case. They did
not arrest the accused persons till 2018.
9. The applicant is an advocate for the last 30 years and a designated
senior counsel by the High Court. He is an Ex. Advocate General of
the State of Chhattisgarh. There is no chance of his running away
from the investigation or interrogation. Ultimately, it affects the
reputation of the institution also. Therefore, the applicant may be
granted anticipatory bail. Learned counsel for the applicant further
relied upon the judgement passed by Hon'ble Supreme Court in 2007
(12) SCC 641 "Dilawar Singh vs. State of Delhi", 2023 SCC
Online SC 1124 "Harilal vs. State of Chhattisgarh", 2024 SCC
Online AP 63 "Nara Chandra Babu Naidu vs. State of Andhra
Pradesh", Criminal Petition No. 1866/2024 (Telangana High
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Court) order dated 24-06-2024 "Vedula Venkataramana vs. the
State of Telangana and others" and 2022 (1) SCC 676 "Siddharth
vs. State of U.P.".
10. Per contra, the learned counsel for the state vehemently opposed the
submission made by the learned counsel for the applicant and has
submitted that the Enforcement Directorate has investigated the case
on the basis of the facts available in the NAN case, which was
registered in the year 2015. The accused persons were granted bail
in the ACB/EOW case. They were also granted anticipatory bail in
the Enforcement Directorate case in the year 2019. The Enforcement
Directorate has approached the Hon'ble Supreme Court for
cancellation of the bail order, and before the Hon'ble Supreme Court,
the Enforcement Directorate submitted chats generated from the
Income Tax Department in a sealed envelope naming the
constitutional authority also. The trial of the NAN case is going on
and is about to conclude. Earlier, the situation was that the outcome
of the trial of the Scheduled Offences did not have a bearing over the
trial of the PMLA case, but after coming of the Vijay Madan Lal's
case (Vijay Madan Lal Choudhary and Others vs. Union of India
and Others, 2023 (12) SCC 1) the position is changed, and if the
Schedule offence goes, then the PMLA case also goes. An
application is filed before the Hon'ble Supreme Court that the trial of
the NAN case is about to conclude, and then the trial of the NAN
case is stayed by the Hon'ble Supreme Court. Thereafter, the
information is shared with the ACB/EOW as provided under Section
66 (2) of the PMLA 2002. The contents of the chats are in mobile
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phones, and their transcription and extracted hard copies are shared
by the Enforcement Directorate to ACB/EOW. The WhatsApp chats
between the accused persons clearly inculpate them in the offence. It
is not a general or routine chat but a discussion of the proceedings of
the court with a person who is on a constitutional post. From the
WhatsApp chats between the applicant and the other accused, the
criminal role of the applicant is clear that he is close to the person
who holds constitutional office and the officers of ACB/EOW. The
next link of investigation can also be found during interrogation. The
matter reflected in the chats is not the duty of the Advocate General,
and he acted contrary to the Advocate Act, 1961 and the Law
Department Manual. The chats extracted from the mobile phone
clearly demonstrate the involvement of the applicant in the offence.
Being the authority of a constitutional post, he ought not to act in the
manner reflected in the chats. It is further submitted by him that the
act of the applicant is not related to the discharge of his official
function or duties, and the same are criminal in nature, and therefore,
the prosecution sanction has also been granted by the State
Government, General Administration Department, Chhattisgarh,
Nava Raipur, through the order dated 05-12-2024. Therefore, he is
not entitled to grant of anticipatory bail.
11. I have heard the learned counsel for the parties, perused the material
annexed with the bail application by the respective parties, and also
gone through the case diary produced by the State.
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12. The crux of the allegation against the applicant is that he duped the
officers of ACB/EOW and other officers of the State to manipulate the
system by concealment of true details and to prepare a general reply
in the case so that the accused persons may be granted bail. Before
delving into the merits of the case, it would be necessary to discuss
the principles behind the pre-arrest bail which is provided under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
(Section 438 of the Code of Criminal Procedure, 1973) which reads
as under:-
"482. Direction for grant of bail to person
apprehending arrest.
(1) When any person has reason to
believe that he may be arrested on an
accusation of having committed a non-
bailable offence, he may apply to the
High Court or the Court of Session for a
direction under this section; and that
Court may, if it thinks fit, direct that in the
event of such arrest, he shall be released
on bail.
(2)When the High Court or the Court of
Session makes a direction under sub-
section (1), it may include such
conditions in such directions in the light
of the facts of the particular case, as it
may think fit, including-
(i) a condition that the person shall
make himself available for
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interrogation by a police officer as
and when required;
(ii) a condition that the person shall
not, directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of
the case so as to dissuade him from
disclosing such facts to the Court or
to any police officer;
(iii) a condition that the person shall
not leave India without the previous
permission of the Court;
(iv) such other condition as may be
imposed under sub-section (3) of
section 480, as if the bail were
granted under that section.
(3)If such person is thereafter arrested
without warrant by an officer in charge of
a police station on such accusation, and
is prepared either at the time of arrest or
at any time while in the custody of such
officer to give bail, he shall be released
on bail; and if a Magistrate taking
cognizance of such offence decides that
a warrant should be issued in the first
instance against that person, he shall
issue a bailable warrant in conformity
with the direction of the Court under sub-
section (1).
(4)Nothing in this section shall apply to
any case involving the arrest of any
person on accusation of having
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committed an offence under section 65
and sub-section (2) of section 70 of the
Bharatiya Nyaya Sanhita, 2023.
13. In the matter of Gurubaksh Singh Sibbia vs. State of Punjab, 1980
(2) SCC 565, the Hon'ble Supreme Court in para 31 to 41 of its
judgment has held that :-
"31. In regard to anticipatory bail, if the proposed
accusation appears to stem not from motives of
furthering the ends of justice but from some ulterior
motive, the object being to injure and humiliate the
applicant by having him arrested, a direction for the
release of the applicant on bail in the event of his
arrest would generally be made. On the other hand, if
it appears likely, considering the antecedents of the
applicant, that taking advantage of the order of
anticipatory bail he will flee from justice, such an
order would not be made. But the converse of these
propositions is not necessarily true. That is to say, it
cannot be laid down as an inexorable rule that
anticipatory bail cannot be granted unless the
proposed accusation appears to be actuated by mala
fides; and, equally, that anticipatory bail must be
granted if there is no fear that the applicant will
abscond. There are several other considerations, too
numerous to enumerate, the combined effect of
which must weigh with the court while granting or
rejecting antici-patory bail. The nature and
seriousness of the proposed charges, the context of
the events likely to lead to the making of the charges,
a reasonable possibility of the applicant's presence
not being secured at the trial, a reason-able
apprehension that witnesses will be tampered with
and "the larger interests of the public or the State"
are some of the considerations which the court has to
keep in mind while deciding an application for
anticipatory bail. The relevance of these
considerations was pointed out in The State v.
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Captain Jagjit Singh, AIR 1962 SC 253 which, though,
was a case under the old Section 498 which
corresponds to the present Section 439 of the Code.
It is of paramount consideration to remember that the
freedom of the individual is as necessary for the
survival of the society as it is for the egoistic
purposes of the indi-vidual. A person seeking
anticipatory bail is still a free man entitled to the
presumption of innocence. He is willing to submit to
restraints on his freedom, by the acceptance of
conditions which the court may think fit to impose, in
consideration of the assurance that if arrested, he
shall be enlarged on bail.
32. A word of caution may perhaps be necessary in
the the consideration whether the applicant is likely
to abscond. evaluation of There can be no
presumption that the wealthy and the mighty will
submit themselves to trial and that the humble and
the poor will run away from the course of justice, any
more than there can be a presumption that the former
are not likely to commit a crime and the latter are
more likely to commit it. In his charge to the grand
jury at Salisbury Assizes, 1899 (to which Krishna Iyer,
J. has referred in Gudikanti¹), Lord Russel of Killowen
said: (SCC p. 243, para 5)
........it was the duty of magistrates to admit
accused persons to bail, wherever practicable,
unless there were strong grounds for supposing
that such persons would not appear to take their
trial. It was not the poorer classes who did not
appear, for their circumstances were such the to
tie them to the place where they carried on their
work. They had the golden wings with which to
fly from justice.
This, incidentally, will serve to show how no hard and
fast rules can be laid down in discretionary matters
like the grant or refusal of bail, whether anticipatory
or otherwise. No such rules can be laid down for the
simple reason that a circumstance which, in a given
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case, turns out to be conclusive, may have no more
than ordinary signification another case.
33. We would, therefore, prefer to leave the High
Court and the Court of Session to exercise their
jurisdiction under Section 438 by a wise and careful
use of their discretion which, by their long training
and experience, they are ideally suited to do. The
ends of justice will be better served by trusting these
courts to act objectively and in consonance with
principles governing the grant of bail which are
recognised over the years, than by divesting them of
their discretion which the legislature has conferred
upon them, by laying down inflexible rules of general
application. It is customary, almost chronic, to take a
statute as one finds it on the ground that, after all,
"the legislature in its wisdom" has thought it fit to use
a particular expression. A convention may usefully
grow whereby the High Court and the Court of
Session may be trusted to exercise their
discretionary powers in their wisdom, especially
when the discretion is entrusted to their care by the
legislature in its wisdom. If they err, they are liable to
be corrected.
34. This should be the end of the matter, but it is
necessary to clarify a few points which have given
rise to certain misgivings.
35. Section 438(1) of the Code lays down a condition
which has to be satisfied before anticipatory bail can
be granted. The applicant must show that he has
"reason to believe" that he may be arrested for a non-
bailable offence. The use of the expression "reason to
believe" shows that the belief that the applicant may
be so arrested must be founded on reasonable
grounds. Mere 'fear' is not 'belief', for which reason it
is not enough for the applicant to show that he has
some sort of a vague apprehension that some one is
going to make an accusation against him, in
pursuance of which he may be arrested. The grounds
on which the belief of the applicant is based that he
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may be arrested for a non-bailable offence, must be
capable of being examined by the court objectively,
because it is then alone that the court can determine
whether the applicant has reason to believe that he
may be so arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague and general
allegations, as if to arm oneself in perpetuity against
a possible arrest. Otherwise, the number of
applications for anticipatory bail will be as large as, at
any rate, the adult populace. Anticipatory bail is a
device to secure the individual's liberty; it is neither a
passport to the commission of crimes nor a shield
against any and all kinds of accusations, likely or
unlikely.
36. Secondly, if an application for anticipatory bail is
made to the High Court or the Court of Session it
must apply its own mind to the question and decide
whether a case has been made out for granting such
relief. It cannot leave the question for the decision of
the Magistrate concerned under Section 437 of the
Code, as and when an occasion arises. Such a course
will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is
not a condition precedent to the exercise of the
power under Section 438. The imminence of a likely
arrest founded on a reasonable belief can be shown
to exist even if an FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted even
after an FIR is filed, so long as the applicant has not
been arrested.
39. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of
"anticipatory bail" to an accused who is under arrest
involves a contradiction in terms, insofar as the
offence or offences for which he is arrested, are
concerned. After arrest, the accused must seek his
remedy under Section 437 or Section 439 of the Code,
if he wants to be released on bail in respect of the
offence or offences for which he is arrested.
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40. We have said that there is one proposition
formulated by the High Court with which we are
inclined to agree. That is proposition (2). We agree
that a 'blanket order of anticipatory bail should not
generally be passed. This flows from the very
language of the section which, as discussed above,
requires the applicant to show that he has "reason to
believe" that he may be arrested. A belief can be said
to be founded on reasonable grounds only if there is
something tangible to go by on the basis of which it
can be said that the applicant's apprehension that he
may be arrested is genuine. That is why, normally, a
direction should not issue under Section 438(1) to the
effect that the applicant shall be released on bail
"whenever arrested for whichever offence
whatsoever". That is what is meant by a 'blanket
order' of anticipatory bail, an order which serves as a
blanket to cover or protect any and every kind of
allegedly unlawful activity, in fact any eventuality,
likely or unlikely regarding which, no concrete
information can possibly be had. The rationale of a
direction under Section 438(1) is the belief of the
applicant founded on reasonable grounds that he
may be arrested for a non-bailable offence. It is
unrealistic to expect the applicant to draw up his
application with the meticulousness of a pleading in a
civil case and such is not requirement of the section.
But specific events and facts must be dis-closed by
the applicant in order to enable the court to judge of
the reasonableness of his belief, the existence of
which is the sine qua non of the exercise of power
conferred by the section.
41. Apart from the fact that the very language of the
statute compels this construction, there is an
important principle involved in the insistence that
facts, on the basis of which a direction under Section
438(1) is sought, must be clear and specific, not
vague and general. It is only by the observance of
that principle that a possible conflict between the
right of an individual to his liberty and the right of the
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police to investigate into crimes reported to them can
be avoided A blanket order of anticipatory bail is
bound to cause serious interference with both the
right and the duty of the police in the matter of
investigation because, regardless of what kind of
offence is alleged to have been committed by the
applicant and when, an order of tail which
comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from
arresting the applicant even if he commits, say, a
murder in the presence of the public. Such an order
can then become a charter of lawlessness and a
weapon to stifle prompt investigation into offences
which could not possibly be predicated when the
order was passed. Therefore, the court which grants
anticipatory bail must take care to specify the offence
or offences in respect the order will be exercised in a
vacuum."
14. In the matter of Sushila Aggarwal vs. State (NCT of Delhi), 2020
(5) SCC 1, the Constitutional Bench of the Hon'ble Supreme Court
has held in para 35 to 46 that :-
"35. Mr. Hiren Raval, learned amicus curiae,
highlighted that while there are passages in Sibbia
(supra), which support the arguments of the
petitioners, that orders under Section 438 can be
unconditional and not limited by time, the court
equally struck a note of caution, and wished courts
to be circumspect while making orders of
anticipatory bail. In this regard, learned senior
counsel highlighted paragraphs 42 and 43 of the
decisions in Sibbia.
36. Elaborating on his submissions, the amicus
submitted that whether to impose any conditions or
limit the order of anticipatory bail in point of time
undoubtedly falls within the discretion of the court
seized of the application. He however submitted that
this discretion should be exercised with caution and
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circumspection. Counsel submitted that there could
be three situations when anticipatory bail
applications are to be considered: one, when the
application is filed in anticipation of arrest, before
filing FIR; two, after filing FIR, but before the filing of
the charge sheet; and three, after filing charge sheet.
It was submitted that as a matter of prudence and for
good reasons, articulated in Salauddin, K.L. Verma,
Adri Dharan Das and decisions adopting their
reasoning, it would be salutary and in public interest
for courts to impose time limits for the life of orders
of anticipatory bail. Counsel submitted that if
anticipatory bail is sought before filing of an FIR the
courts should grant relief, limited till the point in
time, when the FIR is filed. In the second situation,
i.e. after the FIR is filed, the court may limit the grant
of anticipatory bail till the point of time when a
charge sheet is filed; in the third situation, if the
application is made after filing the charge sheet, it is
up to the court, to grant or refuse it altogether,
looking at the nature of the charge. Likewise, if arrest
is apprehended, the court should consider the matter
in an entirely discretionary manner, and impose such
conditions as may be deemed appropriate.
37. Mr. Raval submitted that in every contingency, the
court is not powerless after the grant of an order of
anticipatory bail; it retains the discretion to revisit
the matter if new material relevant to the issue, is
discovered and placed on record before it. He
highlighted Section 439(2) and argued that that
provision exemplified the power of the court to
modify its previous approach and even revoke
altogether an earlier order granting anticipatory bail.
It was submitted that the bar under Section 362 of the
Code (against review of an order by a criminal court)
is inapplicable to matters of anticipatory bail, given
the nature and content of the power under Section
439(2).
38. Mr. Raval also submitted that power under
Section 438 cannot be exercised to undermine any
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criminal investigation. He highlighted the concern
that an unconditional order of anticipatory bail,
would be capable of misuse to claim immunity in a
blanket manner, which was never the intent of
Parliament. Counsel submitted that besides, the
discretion of courts empowered to grant anticipatory
bail should be understood as balancing the right to
liberty and the public interest in a fair and objective
investigation. Therefore, such orders should be so
fashioned as to ensure that accused individuals co-
operate during investigations and assist in the
process of recovery of suspect or incriminating
material, which they may lead the police to discover
or recover and which is admissible, during the trial,
per Section 27 of the Evidence Act. He submitted that
if these concerns are taken into account, the
declaration of law in Mhetre - particularly in Paras
122 and 123 that no condition can be imposed by
court, in regard to applications for anticipatory bail,
is erroneous; it is contrary to Para 42 and 43 of the
declaration of law in Sibbia's case (supra). It was
emphasized that ever since the decision in Salauddin
and other subsequent judgments which followed it,
the practise of courts generally was to impose
conditions while granting anticipatory bail: especially
conditions which required the applicant/ accused to
apply for bail after 90 days, or surrender once the
charge sheet was filed, and apply for regular bail.
Counsel relied on Section 437(3) to say that the
conditions spelt out in that provision are to be
considered, while granting anticipatory bail, by virtue
of Section 438(2).
39. Mr. Tushar Mehta, learned Solicitor General and
Mr. Vikramjit Banerjee, learned Additional Solicitor
General, submitted that the decision in Mhetre
(supra) is erroneous and should be overruled. It was
submitted that though Section 438 does not per se
pre-suppose imposition of conditions for grant of
anticipatory bail, nevertheless, given Section 438(2)
and Section 437(3), various factors must be taken
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into account. Whilst exercising power to grant (or
refuse) a direction in the nature of anticipatory bail,
the court is bound to strike a balance between the
individual's right to personal freedom and the right of
investigation of the police. For this purpose, in
granting relief under Section 438(1), appropriate
conditions can be imposed under Section 438(2) to
ensure an unimpeded investigation. The object of
imposing conditions is to avoid the possibility of the
person or accused hampering investigation. Thus,
any condition, which has no reference to the fairness
or propriety of the investigation or trial, cannot be
countenanced as permissible under the law.
Consequently, courts should exercise their
discretion in imposing conditions with care and
restraint.
40. The law presumes an accused to be innocent till
his guilt is proved. As a presumably innocent person,
he is entitled to all the fundamental rights including
the right to liberty guaranteed under Article 21 of the
Constitution. Counsel stated that at the same time,
while granting anticipatory bail, the courts are
expected to consider and keep in mind the nature
and gravity of accusation, antecedents of the
applicant, namely, about his previous involvement in
such offence and the possibility of the applicant to
flee from justice. It is also the duty of the Court to
ascertain whether accusation has been made with
the object of injuring or humiliating him by having
him so arrested. It is needless to mention that the
Courts are duty bound to impose appropriate
conditions as provided under Section 438(2) of the
Code.
41. The counsel argued that there is no substantial
difference between Sections 438 and 439 of the Code
as regards appreciation of the case while granting or
refusing bail. Neither anticipatory bail nor regular
bail, however, can be granted as a matter of rule.
Being an extraordinary privilege, should be granted
only in exceptional cases. The judicial discretion
20
conferred upon the court must be properly exercised
after proper application of mind to decide whether it
is a fit case for grant of anticipatory bail. In this
regard, counsel relied on Jai Prakash Singh v State
of Bihar26. Counsel relied on 2012 (4) SCC 325 State
of M.P. & Anr. v Ram Kishna Balothia & Anr. 27 where
this court considered the nature of the right of
anticipatory bail and observed that:
"7......We find it difficult to accept the
contention that Section 438 of the Code of
Criminal Procedure is an integral part of Article
21. In the first place, there was no provision
similar to Section 438 in the old Code of
Criminal Procedure......Also anticipatory hail
cannot he granted as a matter of right. It is
essentially a statutory right conferred long
after the coming into force of the Constitution.
It cannot he considered as an essential
ingredient of Article 21 of the Constitution. and
its non- application to a certain special
category of offences cannot he considered as
violative of Article 21."
42. The decisions in Savitri Agarwal v. State of
Maharashtra & Anr 28, and Sibbia were referred to,
to argue that before granting an order of anticipatory
bail, the court should be satisfied that the applicant
seeking it has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief
must be founded on reasonable grounds. Mere
"fear" is not belief; it is insufficient for an applicant
to show that he has some sort of vague
apprehension that someone is going to accuse him,
for committing an offence pursuant to which he may
be arrested. An applicant's grounds on which he
believes he may be arrested for a non-bailable
offence, must be capable of examination by the
Court objectively. Specific events and facts should
be disclosed to enable the Court to judge of the
reasonableness of his belief, the existence of which
is the sine qua non of the exercise of power
21
conferred by the Section. It was pointed out that the
provisions of Section 438 cannot be invoked after
the arrest of the accused. After arrest, the accused
must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail in
respect of the offence or offences for which he is
arrested. The following passages in Savitri Agarwal
(supra) were relied upon:
"24. While cautioning against imposition of
unnecessary restrictions on the scope of the
section, because, in its opinion, overgenerous
infusion of constraints and conditions, which
were not to be found in Section 438 of the
Code, could make the provision constitutionally
vulnerable, since the right of personal freedom,
as enshrined in Article 21 of the Constitution,
cannot be made to depend on compliance with
unreasonable restrictions, the Constitution
Bench laid down the following guidelines,
which the courts are required to keep in mind
while dealing with an application for grant of
anticipatory bail:
***
(iv) No blanket order of bail should be passed and the court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could 22 not possible be predicated when the order was passed.
***
(ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR."
43. It was also argued on behalf of the Govt of NCT and the Union, that this court had expressed a serious concern, time and again, that if accused or applicants who seek anticipatory bail are equipped with an unconditional order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in a conspiracy. Public interest also would suffer as consequence. Reference was invited to State of A.P. v. Bimal Krishna Kundu29 in this context. Likewise, attention of the court was invited to Muraleedharan v. State of Kerala30 which held that "7......Custodial interrogation of such an accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the person which ultimately led to the capital tragedy."
It was highlighted that statements made during custodial interrogation are qualitatively more relevant to those made otherwise. Granting an unconditional order of anticipatory bail would 23 therefore thwart a complete and objective investigation.
44. Mr. Aman Lekhi, learned Additional Solicitor General, urged that the general drift of reasoning in Sibbia was not in favour of a generalized imposition of conditions- either as to the period (in terms of time, or in terms of a specific event, such as filing of charge sheet) limiting the grant of anticipatory bail. It was submitted that the text of Section 439(2) applied per se to all forms of orders- including an order or direction to release an applicant on bail (i.e. grant of anticipatory bail), upon the court's satisfaction that it is necessary to do so. Such order (of cancellation, under Section 439(2) or direction to arrest) may made be where the conditions made applicable at the time of grant of relief, are violated or not complied with, or where the larger interests of a fair investigation necessitate it.
Analysis and Conclusions Re Question No 1: Whether the protection granted to a person under Section 438, CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
45. The concept of bail, i.e. preserving the liberty of citizen - even accused of committing offences, but subject to conditions, dates back to antiquity.
Justinian I in the collections of laws and interpretations which prevailed in his times, Codex Justinianus (or 'Code Jus') in Book 9 titled Title 3(2) stipulated that "no accused person shall under any circumstances, be confined in prison before he is convicted". The second example of a norm of the distant past is the Magna Carta which by clause 44 enacted that "people who live outside the forest need not in future appear before the Royal Justices of the forest in answer to the general summons unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest 24 offence." Clear Parliamentary recognition of bail took shape in later enactments in the UK through the Habeas Corpus Act 1677 and the English Bill of Rights, 1689 which prescribed that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted".
46. Bail ipso facto has not been defined under the Code. It is now widely recognized as a norm which includes the governing principles enabling the setting of accused person on liberty subject to safeguards, required to make sure that he is present whenever needed. The justification for bail (to one accused of commission or committing a crime is that it preserves a person who is under cloud of having transgressed law but not convicted for it, from the rigors of a detention."
15. The above judicial pronouncement clarifies that the Courts are duty-
bound to adhere to the principles and to apply its mind as per the factual scenario and adjudicate the application for grant of anticipatory bail in consonance with the law laid down by the Hon'ble Supreme Court. While considering anticipatory bail, it is also to be considered whether there is the requirement of custody of a person for collecting incriminating evidence in the matter or not. In the instant case, the applicant is apprehending his arrest in Crime No. 49/2024 registered at the police station, Anti Corruption Bureau/ Economic Offence Wing, Raipur, Chhattisgarh.
16. In the case, the FIR of Crime No. 09/2015 was registered by the ACB/EOW against Shivshankar Bhatt and 26 other accused persons which is widely known as NAN scam. On 05-12-2018, the ACB/EOW has filed the supplementary charge sheet against two accused 25 persons namely Alok Shukla and Anil Tuteja. On 05-12-2018, the accused Anil Tuteja filed his anticipatory bail application before this Court vide MCrC (A) No. 1679/2018 which was allowed on 29-04- 2019. On 09-01-2019, the ED registered an ECIR in NAN scam and then the accused Alok Shukla filed his anticipatory bail application in Crime No. 09/2015 of ACB/EOW in which a supplementary charge sheet was filed against him and accused Alok Shukla was also granted anticipatory bail in Crime No. 09/2015 on 16-10-2019 on the ground of parity. The said bail order is passed by the constitutional authority against whom the alleged influence is exerted by the applicant.
17. In the ECIR registered by the ED against Alok Shukla and Anil Tuteja, they have filed their anticipatory bail application vide MCrC(A) No. 469/2020 (Anil Tuteja) and MCrC(A) No. 484/2020 (Alok Shukla). These two anticipatory bail applications are allowed by a common order dated 14-08-2020. It is alleged that when these two bail applications were pending, the present applicant tried to manipulate the persons who were in the process of defending the bail application. From the WhatsApp chats, extracted from the mobile phone of the accused persons, it is clear that he was closely connected with the accused persons and regularly in touch with the progress of the case. At that time, he was the Advocate General of the State and he ought not to indulge in such process but he actively engaged himself in relevant chatting with the accused persons who are the highest officers of the State. There was relevant 26 communication between the accused persons and the present applicant with the status of the case.
18. When the anticipatory bail was granted on 14-08-2020, the ED has challenged it before the Hon'ble Supreme Court for cancellation of the bail in which ED has submitted these Chats gathered from the IT department which gives cause to register the present offence. The accused persons Anil Tuteja and Alok Shukla were the highest officers of the State since 2019 and from the digital evidence collected by the IT department under Section 132(1) of the Income Tax Act, they shared it to the ED and found that they were tried to manipulate the investigation of ED case as well as the trial of NAN case with the connivance of the Bureaucrats and constitutional authority. On the verification of the complaints and the WhatsApp chats it reveals that while the accused persons were in the highest post of the State, they gave undue advantage to the applicant and got him appointed as Advocate General and asked for favour for them in the case. Although the applicant himself did not appear in the proceeding of the bail application but being the head of the institution, he had overall control over the management of the Advocate General office. From a perusal of the WhatsApp chats available in the case diary, it appears that the applicant is actively and knowingly involved in the manipulation of the proceeding of the case.
19. Although the applicant is a former Advocate General of the State and a reputed and designated senior advocate, and there is no chance of 27 his absconding or evading his appearance before the ACB/EOW in interrogation and there would be a dent in his reputation but it is equally to be seen that being the head of the institution, he ought not to indulge in such activities which maline the pious institution and post in which he was there at the relevant time. He being the highest law officer of the State, has to protect and safeguard the interests of the State Government and, under his sacred duty to provide justice to the victims. The conduct of the applicant is not in accordance with the dignity of the august office of Advocate General while holding such a constitutional post. The act of the applicant appears to be the misuse of the powers by a public servant for personal benefit by a person holding the constitutional post having responsibility of public faith. The WhatsApp chats says all about his culpable state of affairs to advance undue advantage the accused persons in the case.
20. As per the submissions of the learned counsel for the applicant, the FIR is based on WhatsApp chats, which were allegedly of the year 2019-20, and the FIR has been registered on 04-11-2024, that too only on apprehension that the offence might have been committed. The extracted copy and transcription of the conversation/chats are produced before this court, and I have perused the same. From the perusal of the material available in the case diary clearly reveals that the applicant was in constant touch with the accused persons while he was the Advocate General of the State of Chhattisgarh and have made WhatsApp chats. The material in the case diary also shows that the applicant has deep-rooted connections in the government department, which can hamper the course of the investigation if he is 28 granted anticipatory bail. This is a pre-arrest bail which has been provided in order to safeguard the liberty of an individual and to protect him from undue harassment by the investigating agency but in the Sibia case (supra), laid down the condition for grant of such relief to the person against whom the FIR has been registered, and he is entitled to relief if the condition enumerated in the judgments passed by the Hon'ble Supreme Court are met. In the instant case, a prima facie case is made out that the conduct of the applicant has been solely driven with the motive to dupe the officers of the State to avail the benefits of disadvantageous relief.
21. In the case of P. Chidambaram vs. Directorate of Enforcement, 2019 (9) SCC 24, has considered the gravity of economic offences and held that :-
78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly;
more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail.
79. The learned Solicitor General submitted that the "Scheduled offence" and "offence of money laundering" are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation's economy and financial integrity and in order to unearth the 29 laundering and trail of money, custodial interrogation of the appellant is necessary.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, it was held as under:-
"5. ....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. 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 to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, the Supreme Court held as under:-
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.30
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
22. In the matter of CBI vs. Anil Sharma, 1997 (7) SCC 187, the Hon'ble Supreme Court has held that success in an interrogation would be reduced if a person is enlarged on anticipatory bail. This court is privy to the fact that the interrogation of a person accused of an offence of such a nature is required to unearth the offence committed.
23. The case law cited by the learned counsel for the applicant has differences in the facts of the present case and consideration. The consideration in Dilawar Singh and Harilal cases (supra) is with respect to the delay in lodging the report and lack of satisfactory explanation, whereas in the present case, the ED has produced the relevant information before the Hon'ble Supreme Court in a sealed envelope, and when the information is shared by the ED to the ACB/EOW, after its confidential inquiry, the FIR has been registered. The Nara Chandra Babu Naidu case (supra), the consideration would be that no arrest should be made without reasonable satisfaction as to the genuineness of the allegation. In the present case also, there is reasonable satisfaction and after confidential 31 inquiry of the allegations, the FIR has been registered and there is sufficient material available in the charge sheet against the applicant which shows his prima facie involvement in the commission of the offence. In the Vedula Venkatramana case (supra), the allegation was to bribing a judicial officer, whereas in the present case, the allegation is more serious that while discharging the duty as a public servant, being the Advocate General of the State, he tried to give advantage to the accused so that they may be benefited by anticipatory bail which does affect the faith of the people upon the pious institution. In Siddharth case (supra), the consideration was that despite the cooperation of the accused during the investigation, the non-bailable warrant was issued at the time of filing of the charge sheet. The requirement of custodial interrogation depends upon the facts of each case to collect evidence. Therefore, no benefit can be granted to the applicant by the judgment cited from his side.
24. In view of the above, this court is of the opinion that the steps taken by the applicant were part of a conspiracy to manipulate the system and the investigation in this regard would be impacted if he is granted anticipatory bail. Necessary interrogation is warranted to reveal all the aspects and attributes related to the said offence committed against the institution. This court is satisfied that a strong prima facie case is made out against the applicant and the said conduct is part of the conspiracy which can only be revealed if the investigating agency is given the due opportunity to apprehend the applicant and investigate the case without there being any chance to hamper the witnesses and the evidence.
32
25. Accordingly, the instant anticipatory bail application filed by the applicant is dismissed.
26. It is made clear that this court has not expressed any opinion on the merits of the case and restricted itself with regard to the question of whether anticipatory bail can be granted to the petitioner or not. Any observation made in this order shall not affect the merits of the case.
Sd/-
(Ravindra Kumar Agrawal) Judge ved