Rajasthan High Court - Jodhpur
Rajendra Singh vs State on 21 April, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Criminal Misc. Bail No. 1750 / 2017
K.K. Mathur S/o Shri Ganesh Vallabh Mathur, Resident of 13,
Karni Bagh, High Court Colony, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
(2) S.B. Criminal Misc. Bail No. 1751 / 2017
K.K. Mathur S/o Shri Ganesh Vallabh Mathur, Resident of 13,
Karni Bagh, High Court Colony, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
(3) S.B. Criminal Misc. Bail No. 1813 / 2017
K.K. Mathur S/o Shri Ganesh Vallabh Mathur, Resident of 13,
Karni Bagh, High Court Colony, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
(4) S.B. Criminal Misc. Bail No. 2487 / 2017
Rajendra Singh Solanki S/o Late Shri Achalu Ram Solanki,
Aged about 61 Years, Resident of Royalty Naka, Balsamand,
Mandore, Jodhpur (Rajasthan)
----Petitioner
Versus
State of Rajasthan
----Respondent
(2 of 36)
(5) S.B. Criminal Misc. Bail No. 2543 / 2017
1. Arun Kumar Purohit S/o Late Shri Kedarnath, R/o Kallon Ki
Gali, Bhajan Chowki, Jalap Mohalla, Jodhpur, the then Junior
Engineer, JDA, Jodhpur
2. Jagdish Chhangani S/o Shri Pukhraj Chhangani, R/o Gundi
Ki Mohalla, Jodhpur, the then Assistant Engineer, JDA,
Jodhpur.
----Petitioners
Versus
State of Rajasthan
----Respondent
(6) S.B. Criminal Misc. Bail No. 2544 / 2017
Rajendra Singh Solanki S/o Late Shri Achalu Ram Solanki,
Aged about 61 Years, Resident of Royalty Naka, Balsamand,
Mandore, Jodhpur (Rajasthan)
----Petitioner
Versus
State of Rajasthan
----Respondent
(7) S.B. Criminal Misc. Bail No. 2975 / 2017
Rajendra Singh Solanki S/o Late Shri Achalu Ram Solanki,
Aged about 61 Years, Resident of Royalty Naka, Balsamand,
Mandore, Jodhpur (Rajasthan)
----Petitioner
Versus
State of Rajasthan
----Respondent
(8) S.B. Criminal Misc. Bail No. 2976 / 2017
Rajendra Singh Solanki S/o Late Shri Achalu Ram Solanki,
Aged about 61 Years, Resident of Royalty Naka, Balsamand,
Mandore, Jodhpur (Rajasthan)
----Petitioner
Versus
State of Rajasthan
----Respondent
(3 of 36)
________________________________________________
For Petitioner(s) : Mr. M.S. Singhvi, Sr. Advocate, with Mr.
Kuldeep Mathur, Mr. Ankur Mathur, Mr.
Hemant Dutt and Mr. Deepak Chand
for petitioner Mr. K.K. Mathur
Mr. Mahesh Bora, Sr. Advocate, with
Mr. Nishant Bora, Mr. Arun Kumar and
Mr. Arpit Mehta for petitioners Mr.
Rajendra Singh Solanki, Mr. Arun
Kumar and Mr. Jagdish Chhangani.
For Respondent(s) : Mr. S.K. Vyas, Addl. Advocate General
and Mr. V.S. Rajpurohit, P.P.
Mr. Ajay Pal Lamba, Superintendent of
Police, Jodhpur and I.O. present.
________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order Reportable 21/04/2017 Apprehension of arrest in furtherance of investigation into FIRs No.111 of 2016, 110 of 2016 and 109 of 2016, registered at Police Station CPS, Anti Corruption Bureau, Jaipur, petitioner K.K. Mathur, Director (Engineering), Jodhpur Development Authority (JDA), has laid three separate pre-arrest bail applications. Details about the offences, for which the petitioner is castigated, are as infra:
FIR Nos. Offences
111 of 2016 U/s.13(1)(c)(d) and 13(2) of the
Prevention of Corruption Act, 1988,
and
U/s. 193, 409 & 120-B IPC
110 of 2016 U/s.13(1)(c)(d) and 13(2) of the
Prevention of Corruption Act, 1988,
(4 of 36)
and
U/s. 420, 409 & 120-B IPC
109 of 2016 U/s.13(1)(c)(d) and 13(2) of the
Prevention of Corruption Act, 1988,
and
U/s. 193, 409 & 120-B IPC
Likewise, petitioner Rajendra Singh Solanki,
Ex.Chairman, JDA, has moved four separate pre-arrest bail applications to thwart his arrest in furtherance of investigation into FIRs No. 110 of 2016, 108 of 2016, 111 of 2016 and 109 of 2016 of Police Station CPS, ACB, Jaipur respectively. The offences attributed to the petitioner in the aforesaid four FIRs are detailed as infra:
FIR Offences
Numbers
110 of U/s.13(1)(c)(d) and 13(2) of the
2016 Prevention of Corruption Act, 1988,
and
U/s. 420, 409 & 120-B IPC
108 of U/s.13(1)(c)(d) and 13(2) of the
2016 Prevention of Corruption Act, 1988,
and
U/s. 409 & 120-B IPC
109 of U/s.13(1)(c)(d) and 13(2) of the
2016 Prevention of Corruption Act, 1988,
and
U/s. 420, 409 & 120-B IPC
111 of U/s.13(1)(c)(d) and 13(2) of the
2016 Prevention of Corruption Act, 1988,
and
(5 of 36)
U/s. 420, 409 & 120-B IPC
Similarly, petitioners Arun Kumar and Jagdish Chhangani, who, at the relevant time, were respectively posted as Junior Engineer and Assistant Engineer in JDA, have laid a joint anticipatory bail application to resist their arrest in furtherance of investigation into FIR No. 108 of 2016 of Police Station CPS, ACB, Jaipur (Outpost Jodhpur). The offences slapped against these petitioners are detailed as under:
FIR No. Offences
108 of U/s.13(1)(c)(d) and 13(2) of the
2016 Prevention of Corruption Act, 1988,
and
U/s. 409 & 120-B IPC
Efforts made by the petitioners for seeking
anticipatory bail in respect of aforementioned FIRs did not fructify before the Special Court, Anti Corruption Cases, Jodhpur (for short, 'learned trial Court') inasmuch as their bail applications have been turned down.
Espousing cause of petitioner K.K. Mathur, learned Senior Counsel, Mr. M.S. Singhvi, has urged that requisite financial sanction was issued by the petitioner in adherence of resolution of the Board, therefore, the said act of petitioner is required to be examined by the Court with pragmatic approach for grant of anticipatory bail. Mr. (6 of 36) Singhvi, learned Senior Counsel, would contend that there is no allegation in the FIRs about loss to the exchequer is yet another mitigating circumstance for favourable consideration of pre-arrest bail plea of the petitioner. Learned Senior Counsel submits that petitioner has issued financial sanction in exercise of schedule of powers conferred on him being Member of Executive Committee pursuant to resolution of the Board and even if it is assumed to be an act dehors the JDA Act, it is rather difficult to comprehend that the same amounts to serious criminal misconduct on his part. Mr. Singhvi, learned Senior Counsel, has strenuously urged that all the cases of Prevention of Corruption Act cannot be treated at par inasmuch as accepting illegal gratification by a public servant cannot be equated with other offences envisaged under the Prevention of Corruption Act. Lastly, learned Senior Counsel has urged that, looking to the alleged criminal delinquency of the petitioner, there is hardly any justification for the investigating agency to apprehend the petitioner for custodial investigation. In support of his arguments, learned Senior Counsel has placed reliance on following judgments:
1. Gurbaksh Singh Sibbia Vs. State Of Punjab [(1980) 2 SCC 564]
2. Joginder Kumar Vs. State of U.P. and Ors.[(1994) 4 SCC 260]
3. Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors. [2011) 1 SCC 694].
(7 of 36) Learned Senior Counsel, Mr. Mahesh Bora, appearing for petitioner Rajendra Singh Solanki, submits that enhancement of budget for a construction work, duly approved by the Board, is per se not a criminal misconduct by a public servant warranting his custodial interrogation. Learned Senior Counsel would contend that shifting of construction work from one place to another sans allegation of misappropriation is a fact of great significance for favourable consideration of pre-arrest bail plea of the petitioner. Learned Senior Counsel has made an attempt to justify shifting of work from one construction site to another by taking shelter of resolution of the Board in this behalf. Learned Senior Counsel submits that budget enhancement of a project, in adherence of resolution passed by the Board, cannot be construed as an act of serious criminal misconduct vis-a-vis a people's representative like the petitioner, who is currently leader of opposition in Municipal Corporation, Jodhpur, so as to subject him to custodial interrogation. It is further submitted by learned Senior Counsel that even if the petitioner has exercised his discretion inappropriately or improperly, the said act or omission on his part falls short of fastening criminal liability so as to seek protection of the Court envisaged under Section 438 Cr.P.C. Learned Senior Counsel has vehemently argued that the impugned FIRs are glaring examples wherein minor infractions on the part of the petitioner have been blown out of proportion (8 of 36) depicting clearly and unequivocally political vendetta against him for obvious reasons. It is urged by learned Senior Counsel that the alleged irregularity, in accepting single tender, cannot be attributed to the petitioner inasmuch as neither he has played any role in declaring technical bid of the contractor responsive, nor in acceptance of its financial bid. Alternatively, learned Senior Counsel contends that this sort of omission cannot be fouled under Section 42 of the Rajasthan Transparency in Public Procurement Act, 2012 upon its conjoint reading with Rule 68 of the Rajasthan Transparency in Public Procurement Rules, 2013. Learned Senior Counsel has vehemently argued that allegations in FIR No.109 of 2016 and 111 of 2016 are more or less common, which is a glaring example of persecution of the petitioner at the behest of investigating agency. Lastly, learned Senior Counsel has urged that in absence of loss to the exchequer and the fact that no recovery is to be made from the petitioner, petitioner's bail plea merits affirmative consideration. Learned Senior Counsel, while referring to the legal precedents relied upon by learned counsel for Mr. K.K. Mathur, has also placed reliance on following judgment of Supreme Court:
Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Ors. [(2016) 1 SCC 152] Mr. Mahesh Bora, learned Senior Counsel, arguing criminal bail application No.2543 of 2017 on behalf of (9 of 36) accused-petitioners Arun Kumar and Jagdish Chhangani, submits that tenders were invited in the year 2012 whereas petitioners joined JDA on 13 th of June 2013 and before their joining work order was also issued on 31 st of December 2012, therefore, their involvement in commission of alleged offence is seriously questionable. It is further submitted by learned Senior Counsel that no work as such is executed pursuant to the work order and the work commenced in January 2014 at a different place.
Arguing on behalf of petitioners, learned counsel would contend that both the petitioners being Junior Engineer and Assistant Engineer were not competent to decide shifting of the venue of construction work from one place to other and as such both of them have carried out their entrusted duties in terms of requisite orders/decisions of the higher authorities. Relying on the information furnished under RTI by Gram Panchayat Modi Joshiyan, learned Senior Counsel submits that WBM road construction at three places; i.e. Jogiyon ka Dera to canal, near canal to Baniyawas School and WBM road towards right side in Jogiyon ka Dera to canal is sufficient to show that petitioners have been falsely implicated in the matter. Lastly, learned Senior Counsel has argued that, looking to the alleged criminal delinquency, there appears to be no justification for custodial interrogation of the petitioners and apprehension about their fleeing away from justice or misusing their (10 of 36) liberty while on bail is per se misplaced, furnishes a plausible ground for grant of pre-arrest bail.
Per contra, Mr. S.K. Vyas, learned Addl. Advocate General, has vehemently opposed all the bail applications and submits that looking to the criminal delinquency attributed to the petitioners, they are not entitled to pre-
arrest bail. Learned Addl. Advocate General has urged that rejection of petitions for quashment of FIRs laid on behalf of petitioners is a fact of great significance for thwarting their pre-arrest bail applications. Learned Addl.
Advocate General would contend that rejection of petitions under Section 482 Cr.P.C. for annulment of FIRs and criminal delinquencies of the petitioners for the alleged offences as public servant cannot be viewed munificently while considering their anticipatory bail applications.
Elaborating his submissions, Mr. Vyas, learned Addl.
Advocate General submits that an act of criminal misconduct by a public servant directly or indirectly sacrifices public interest, which cannot be measured solely on the basis of loss to the exchequer in the present era of accountability and transparency. Countering the argument of Mr. Bora, learned Addl. Advocate General has strenuously urged that shifting of work from one construction site to another was ordered by the then Chairman, JDA without approval of the Board. Learned Addl. Advocate General, while opposing all the bail (11 of 36) applications, has made an attempt to highlight the conduct of the petitioners and urged that against some of the accused-petitioners standing warrants are issued, furnishes a plausible ground for denial of anticipatory bail. Learned Addl. Advocate General has vehemently argued that some of the accused persons are subjected to custodial interrogation and therefore petitioners cannot claim any immunity under the law of special treatment for not being subjected to custodial interrogation. Learned Addl.
Advocate General would contend that in all 16 files relating to construction works are missing in the office of JDA is a matter of grave concern and therefore for reaching to a logical conclusion in all the FIRs custodial interrogation of petitioner K.K. Mathur and Rajendra Singh Solanki is essential. Harping on some of the cases pending against these petitioners, learned Addl. Advocate General submits that to unearth the truth both these petitioners require thorough custodial interrogation in presence of other accused persons. As per the version of learned Addl.
Advocate General not allowing investigating agency custodial interrogation may adversely effect the investigation. Lastly, learned Addl. Advocate General has urged that investigation in all these FIRs is still in vogue and in view of serious allegations against the petitioners their custodial interrogation is necessary to unfurl the scam. Learned Addl. Advocate General, in support of his (12 of 36) various contentions, has placed reliance on following legal precedents:
(1) Runu Ghosh Vs. CBI [MANU/DE/6909/2011], decided on 21st of December 2011 by Delhi High Court.
(2) Adri Dharan Das Vs. State of West Bengal [2005 Cri.L.J. 1706(1)] (3) Ramniwas Tyagi & Sham Sunder Vs. State [MANU/DE/8212/2007] decided on 31.07.2007 by Delhi High Court.
(4) Sudhir & Ors. Vs. State of Maharashtra [(2016) 1 SCC 146] (5) Order dated 20th of January 2016 passed by Jaipur Bench of this Court in Criminal Misc. Bail Application No.15763/2015 - Dr. Gurdial Singh Sandhu Vs. State of Rajasthan.
(6) Order dated 6th of February 2017 passed in S.B. Criminal Bail Application No.12068/2016 -
Ajay Chopra Vs. State of Rajasthan & three bail applications, decided by Jaipur Bench of this Court.
I have bestowed my considerations to the arguments advanced at the Bar and thoroughly examined the case materials available on record.
Code of Criminal Procedure, 1898 (Old Code) did not envisage specific provision corresponding to Section 438 of the present Code of 1973. The Law Commission in its 41 st Report introduced provision relating to anticipatory bail and finally Commission's 48th Report in the year 1972 recommended acceptance of suggestion. The solemn object of Section 438 Cr.P.C. is to prevent undue harassment of accused persons by pre-trial arrest and detention. Necessity for granting anticipatory bail is (13 of 36) viewed imperative by the Commission mainly because at times outsmart and influential persons may try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. It is witnessed in recent past that with the accentuation of political rivalry this tendency is showing signs of ascending order. Innumerable examples of slapping false cases, availability of reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail also furnishes no justification requiring him first to submit to custody, remain in prison for some time and then apply for bail.
Constitution Bench of Supreme Court, in Gurbaksh Singh Sibbia & Ors. (supra), examined Section 438 Cr.P.C. exhaustively and upon consideration of stringent requirements laid down by Full Bench of Punjab & Haryana High Court, the Court substantially set aside the Full Bench judgment. While construing the words of width and amplitude by the Legislature under Section 438 Cr.P.C., the Court observed:
"We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor-General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut (14 of 36) down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far as the right to apply for bail is concerned."
Making comparison with the provisions of grant of bail envisaged under Section 437 and 439 Cr.P.C. with the power of Court of Sessions and High Court to grant anticipatory bail, the Court held:
"The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 39.9 that it had "considered" carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted"
but had come to the conclusion that the question of granting such bail should be left "to the discretion of the court" and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion of the High Court and the Court of Session to grant anticipatory bail because it (15 of 36) evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory, bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provided that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in Clauses (i) to (iv) of Sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437."
(16 of 36) Laying emphasis on the discretionary power of a Court of Sessions and High Court for grant of pre-arrest bail, the Court has made following observations:
"Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast- iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if We were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide- lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit".
The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law." Clarifying that power conferred by Section 438 Cr.P.C. is not unguided or uncanalised, Constitution Bench has also observed that for grant of anticipatory bail a petitioner need not make out a special case. The Court held:
"The High Court says in its fourth proposition that in addition the limitations mentioned in Section 437, the petitioner must make out a "special case" for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a (17 of 36) dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in, regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."
Upon appreciation of arguments advanced on behalf of accused-petitioner that right to life and liberty enshrined under Article 21 of the Constitution is imbibed in Section 438 Cr.P.C., the Court has acknowledged the same and held:
"We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous (18 of 36) infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on, compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi [1978] 1 SCC 248 that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it; is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein."
Dilating on the proposed accusation not founded on motive of furthering ends of justice but actuated with ulterior motive with object to injure and humiliate, the Court emphasized that in such cases direction to grant bail can be made after considering the antecedents of the applicant. The Court held:
"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 (19 of 36) enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory 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 reasonable 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. Captain Jagjit Singh [1962]3 SCR 622 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 individual. 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."
In Jogindra Kumar (supra), Supreme Court has considered power of a Police Officer to arrest someone and issued a word of caution that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. The Court held:
"In India, Third Report of the National Police Commission at page 32 also suggested:
....An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder; dacoity, robbery, rape, etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(20 of 36)
(ii) The accused is likely to abscond and evade the processes of law
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines....
The above guidelines are merely incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen" and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter, The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a Police Officer issues notice to person to attend the Station House and not to leave Station without permission would do.
(21 of 36) In Siddharam Satlingappa Mhetre (supra), Supreme Court has reiterated the principles for grant of anticipatory bail laid down in Gurbaksh Singh Sibbia. The Court held:
"It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 CrPC has not been allowed its full play. The Constitution Bench in Sibbia case clearly mentioned that Section 438 CrPC is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 CrPC. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438 CrPC should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia case.
According to the Report of the National Police Commission, when the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court."
After threadbare examination of Section 438 Cr.P.C. and the limitations mentioned in Section 437 Cr.P.C., the Court has laid emphasis on giving full play to the plenitude of Section 438 Cr.P.C. The Court held:
(22 of 36) "The question which arises for consideration is whether the powers under Section 438 CrPC are unguided or uncanalised or are subject to all the limitations of Section 437 CrPC? The Constitution Bench in Sibbia's case has clearly observed that there is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. The Court observed that: (SCC p.584, para 21) "21. . . .We do not see why the provisions of Section 438 CrPC should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable."
xxx The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
In Bhadresh Bipinbhai Sheth (supra), Supreme Court has culled out principles for exercising discretion under Section 438 Cr.P.C. for grant or refusal of bail.
"The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect (23 of 36) whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 Code of Criminal Procedure the limitations mentioned in Section 437 Code of Criminal Procedure. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the (24 of 36) salutary power conferred by Section 438Code of Criminal Procedure to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court Under Section 438 Code of (25 of 36) Criminal Procedure should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the (26 of 36) court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.
Runu Ghosh (supra), the judgment of Delhi High Court, cited by learned Addl. Advocate General, relates to a criminal appeal arising out of the judgment of conviction under Section 13(1)(d) & 13(2) of the Prevention of Corruption Act, 1988 besides offence of criminal conspiracy. Therefore, the judgment is not relevant and its ratio is having no bearing in all these matters.
In Adri Dharan Das (supra), Supreme Court has considered earlier Constitution Bench judgment in case of Gurbaksh Singh Sibbia (supra) and, while reiterating the principles laid down, added that power under Section 438 Cr.P.C. is to be exercised in exceptional cases. While issuing a word of caution for grant of interim order restraining arrests, the Court held:
(27 of 36) "Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.
Delhi High Court in Ram Niwas Tyagi & Sham Sunder (supra), on which reliance is placed by learned Addl. Advocate General, essentially deals with inherent powers enshrined under Section 482 Cr.P.C. to quash FIR involving offences under the Prevention of Corruption Act. The Court, while reiterating the settled proposition of law that when allegations in FIR disclose the commission of cognizable offence, prayer for its annulment merits rejection. Simultaneously, the Court also rejected anticipatory bail application with the observation that petitioners have not disclosed anything about crime and they have not handed over relevant documents. Thus, in the considered opinion of the Court, ratio decidendi of this verdict cannot be construed as canvassed by learned Addl. Advocate General that rejection of (28 of 36) petition under Section 482 Cr.P.C. seeking quashment of FIR ipso facto operates as an embargo for grant of anticipatory bail to an individual.
Supreme Court, in case of Sudhir (supra), has declined to interfere with the order of High Court cancelling anticipatory bail granted to the appellants in the wake of serious allegations of corruption and misappropriation of public funds released for rural development besides other dubious conducts. The Court further emphasised that in want of custodial interrogation of appellants entire investigation is hampered. Indisputably, if Court feels that custodial interrogation of accused is essential and without which investigation may held up, discretion can be exercised for denial of anticipatory bail to the accused.
The bail orders passed in Dr. Gurdial Singh Sandhu and Ajay Chopra cannot lend any support to the arguments advanced by the learned Addl. Advocate General as these orders cannot be treated as legal precedents. In the matter of grant or refusal of bail, facts of an individual case are to be examined objectively.
The legal propositions adumbrated in all the legal precedents, relied upon by the learned counsel for the parties, if summarized then undermentioned conclusions come to the fore:
(i) Legislature in enshrining salutary provision in Section 438 Cr.P.C. wanted to see that liberty of an individual is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers.
(ii) Being extraordinary powers should be exercised sparingly.
(29 of 36)
(iii) Necessity of custodial interrogation of the accused to be objectively examined in the light of alleged culpability.
(iv) Ascertaining the fact as to whether accused can misuse his liberty on grant of bail or there is likelihood of his fleeing from justice.
A threadbare examination of all these bail applications conjointly with the FIRs and a close scrutiny of allegations made therein, has persuaded me to examine three vital questions -
(i) Whether custodial interrogation of accused-petitioners is necessary?
(ii) Whether in the backdrop of attending facts and circumstances power for grant of pre-arrest bail is to be exercised?
(iii) Whether grant of anticipatory bail to the accused-petitioners will hamper investigation into all these FIRs?
Essentially, in all the FIRs, allegations are encompassing misuse of public money by shifting the construction work or increasing the sanctioned budget for the project. Besides that, the allegations are related with entrustment of contract to an unqualified contractor for giving him undue advantage and flagrant violation of the Rajasthan Transparency in Public Procurement Act, 2012. On a bare reading of all the FIRs, it clearly emerges out that there is no direct insinuation against any of the petitioners for defalcation or misappropriation of public money. That apart, there is no whisper in any of the FIRs about loss to the exchequer as most of the payments are not made. Although shifting of work from one construction site to (30 of 36) another is specific allegation against accused-petitioners K.K. Mathur and Rajendra Singh Solanki in the FIRs but the accused- petitioners and prosecuting agency has locked horns on this contentious issue, inasmuch as, as per version of the FIRs shifting of construction work was allowed without approval of the Board. Contrary to the same, the plea of accused-petitioner Rajendra Singh is that shifting of work from one construction site to another was approved by the Board. Accused K.K. Mathur has also raised similar plea and urged that he has carried out shifting in adherence of Board's approval. Likewise, accused-petitioner Arun Kumar and Jagdish Chhangani have carried out construction work as per instructions of higher authorities. The informations collected under RTI in this behalf are also significant. Therefore, considering altogether different versions of both the parties, proper scrutiny of this contentious issue obviously hinges on the evidence collected during investigation or trial, in all fairness, at this stage, Court feels that expressing any definite opinion is not desirable. In overall scenario, the allegations made in all the FIRs are edificed on documentary evidence which the investigating agency has collected or is in the process of collecting. As regards the argument of learned Addl. Advocate General that 16 files relating to construction works are missing in the office of JDA, suffice it to observe that there is no whisper in any of the FIRs about this allegation and furthermore no material has been placed on record by the State to substantiate it, therefore, at the stage of consideration of bail applications, I am not impressed by this argument.
(31 of 36) The contention of the learned Addl. Advocate General that arrest warrants have been issued against the accused petitioners, is sufficient to thwart their bail applications, appears to be quite alluring but not of substance. In the considered opinion of this Court, issuance of arrest warrants cannot circumscribe the power of the Court for favourable consideration of bail application if the grounds set out therein are substantial for grant of bail. The legal position is no more res integra that Courts have power to grant anticipatory bail even in cases where cognizance has been taken or chargesheet has been filed. Reliance in this behalf can be placed on a decision of Supreme Court in Bharat Chaudhary and Anr. Vs. State of Bihar & Anr. [(2003) 8 SCC 77].
Indisputably, all the petitioners are public servants who cannot flee from justice has also dissuaded me to accept the argument of learned Addl. Advocate General that custodial interrogation of all the petitioners is necessary. Supreme Court in Gurbaksh Singh Sibbia (supra) has acknowledged that provision under Section 438 Cr.P.C. is beneficent and therefore Article 21 of the Constitution can come to the rescue of a person who is sought to be deprived of his liberty in an unfair, unjust and unreasonable manner, may be in adherence of procedure established by law.
Apparently, there remains no dichotomy that fundamental right of personal liberty, enshrined in Article 21 of the (32 of 36) Constitution is not only available to every citizen of India but to every person, and as such cannot be abrogated merely on a presumptive plane.
Curtailment or aberration of a sacrosanct fundamental right of personal liberty cannot be justified by someone who has lawful authority to do so sans its abject necessity.
While acknowledging the prima facie criminal delinquency of all the accused-petitioners in the wake of rejection of their criminal misc. petitions for annulment of these FIRs, I may now dilate on second question. Grant of anticipatory bail is discretionary depending on attending facts and circumstances. In all these bail applications founded on FIRs No.108/16, 109/16, 110/16 and 111/16 being public servants petitioners are charged for offences punishable under the Prevention of Corruption Act as well as IPC. Petitioners K.K. Mathur, Arun Kumar and Jagdish Chhangani are from engineering services working on the post of Director (Engineering), Junior Engineer and Assistant Engineer respectively, therefore, looking to their status, presumption about their joining investigation is free from any doubt. Furthermore, there are bleak chances of their absconding. The other accused person Rajendra Singh, Ex. Chairman of JDA, is currently enjoying status as the leader of opposition in Municipal Corporation, Jodhpur, therefore, the Court has reasons to believe that he would cooperate with the investigation and any attempt by him to defy the law of the land (33 of 36) is unforeseeable. As such, in the backdrop of facts and circumstances of all these bail applications, second question also deserves answer in affirmative so as to exercise discretion in favour of the petitioners.
As regards third and last question, which is corollary to the first question, suffice it to observe that investigation into all the FIRs cannot be allowed to hamper or prolonged. Undoubtedly, investigation is the statutory right of the police where FIR discloses the commission of a cognizable offence. Investigation is the stage of crime detection, wherein role of the Courts is limited and power to interfere is not desirable except on perceiving miscarriage of justice. In these circumstances, a felt necessity is that participation of all the accused persons during investigation for facilitating conclusion in these matters is also required to be ensured. Thus, in the peculiar facts and circumstances while acceding to the prayer of the petitioners for favourable disposition vis-a-vis all the FIRs, some stringent conditions are required to be imposed. My this view finds support of Constitution Bench judgment of Supreme Court in case of Gurbaksh Singh Sibbia (supra), and a subsequent judgment - State of Punjab Vs. Raninder Singh & Anr. [(2008) 1 SCC 564], wherein Supreme Court observed:
"It may be mentioned here that Section 438(2) (1) of the Code of Criminal Procedure is very clear that while granting anticipatory bail the Court can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. The purpose of such a provision is that (34 of 36) anticipatory bail cannot be permitted to be abused. It is therefore, implicit that whenever the Court imposes such a condition in its order, and the accused called for interrogation or for certain investigation does not appear before the investigating officer then it will be open for the State to move the High Court for cancellation of bail."
The upshot of the above discussion is that all these bail applications are allowed and the accused-petitioners are ordered to be released on bail upon their arrest/surrender subject to following conditions:
(1) Petitioner K.K. Mathur shall furnish personal bond of Rs.50,000/- (Rupees fifty thousand) with two sureties of like amount including one surety of a public servant not below the rank of Superintending Engineer in connection with FIRs No.109, 110 & 111 of 2016, registered at Police Station CPS Anti Corruption Bureau, Jaipur, separately for each FIR, to the satisfaction of learned trial Court.
(2) Petitioner Rajendra Singh Solanki shall furnish personal bond of Rs.50,000/- (Rupees fifty thousand) with two sureties of like amount including one surety of an elected Member (Corporator) of Municipal Corporation, Jodhpur in connection with FIRs No.108, 109, 110 & 111 of 2016, registered at Police Station CPS Anti Corruption Bureau, Jaipur, separately for each FIR, to the satisfaction of learned trial Court.
(3) Petitioners Arun Kumar Purohit and Jagdish (35 of 36) Chhangani both shall separately furnish personal bond of Rs.50,000/- (Rupees fifty thousand) with two sureties of like amount to the satisfaction of learned trial Court in connection with FIR No.108 of 2016, registered at Police Station CPS Anti Corruption Bureau, Jaipur (4) All the petitioners are further directed to cooperate during investigation in relation to FIR/FIRs with which they are connected and appear for interrogation before the investigating officer as and when called upon to do so.
(5) Petitioners shall neither leave the Country, nor change their residential address without prior permission of the learned trial Court.
(6) Petitioners 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 any police officer.
(7) If any necessity is felt by the learned trial Court for imposing any other condition, depending on attending facts and circumstances, it shall be at liberty to prescribe the same.
Before parting, it is made clear that in case accused- petitioner/petitioners do not cooperate with the investigation or choose not to appear for interrogation before Investigating (36 of 36) Officer as and when called upon to do so, the State shall be at liberty to move appropriate application for cancellation of the bail.
(P.K. LOHRA), J.
arora/