Andhra Pradesh High Court - Amravati
Telukupalli Karthik vs The State Of Andhra Pradesh on 25 August, 2020
Somezere IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI TUESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND TWENTY : PRESENT: THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO: 2536 OF 2020 Between: Telukupalli Karthik, S/o. Bharan, aged 30 years, Proprietor, Sri Tirumala Medical Agencies, Sai Nirman Complex, Bhavanipouram, Vijayawada, Krishna District. Petitioner/Accused AND The State of Andhra Pradesh, Rep Special Public Prosecutor Anti-Corruption Bureau, High Court of Andhra Pradesh, Amaravathi, Guntur District, Respondent/Complainant Petition under Section 437 & 439 of Cr.P.C, praying that in the circumstances stated in the grounds filed in support of the Criminal Petition, the High Court may be pleased to enlarge the petitioner (A-14) on bail in connection with Crime No. 03/ROC- CIU-ACB/2020, dated 10.06.2020, of ACB, CIU, AP, Vijayawada, dated 10.06.2020 The petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of SRI P V KRISHNAIAH Advocate for the Petitioner, and of PUBLIC PROSECUTOR for the Respondent, the Court made the following. ORDER:
cAsx THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION No.2536 of 2020 ORDER:
| This petition is filed under Sections 437 & 439 of Cr.P.C. seeking regular bail to the petitioner / A-14 in connection with Crime No.03/RCO-CIU-ACB/2020 on the file of Anti-Corruption Bureau, C.I.U, A.P. Vijayawada for the alleged offences punishable under Sections 7, 8, 9, 13(1)(a) r/w 13 (2) of Prevention of Corruption (Amendment) Act, 2018 and Sections 408, 409, 417, 418, 420, 468, 471, 120-B r/w 34 IPC.
2. The case of the prosecution and the relevant portion of the complaint against the petitioner is that the Government of India enacted the Employees State Insurance Act 1948 for extending Primary, Secondary and Super Specially Health Care Services to the employees, who are earning less than Rs.21,000/- who are covered under ESI scheme are entitled for medical facilities for self and dependents. The employees of State Insurance Scheme are being monitored by the Department of Medical Services and it comes under the control of Principal Secretary, Labour, Employment, Training & Factories. The Director, IMS (DIMS) is the head of the Department to implement ESI scheme. Two Joint Directors (Vijayawada and Kadapa) are working under the Director, IMS to look after the supervision of ESI Dispensaries and Panel Clinics. It has come to the notice of the Government that the Directors and Staff of Insurance Medical Services (IMS), AP, Vijayawada during the period 2014-2019 procured drugs and medicines, medical equipment, surgical equipment, laboratory kits, furniture etc., and also purchased bio-metric machines at higher rates by violating the established procedure.
3. It is further case of the prosecution that the petitioner is the proprietor of M/s Tirumala Medical Agencies, Bhavanipuram, Vijayawada and in his statement he admitted that he approached the then Director of ESI for orders and as per oral instructions of the Director, he submitted quotation with price (price more than 50% of distributor price /RC) as informed by DIMS staff. Further the staff of DIMS managed the remaining two quotations with the letter heads of other firms available with them and he paid 10% of order amount to P.Venkat, S/o the then Minister Pithani Satyanarayana, 5% of order amount to the Directorate ESI employee i.e. Dhanalakshmi and 5% of the order amount to hospital staff towards bribe for issuing of purchase orders. Basing on the same, crime was registered and the petitioner is arrayed as A-14.
4. Heard Sri P.V.Krishnaih, learned counsel for the petitioner and Sri $.M.Subhani, Special Public Prosecutor for ACB cases appearing on behalf of the respondent-State.
5. Learned counsel for the petitioner submits that the petitioner has supplied medicines to the Insurance Medical Service Department as offered by the Department only for a period of around one year and the total value of the medicines supplied by the petitioner is around Rs.3.5 crores and the Department for various reasons has not paid the remaining amount of Rs.1.35 crores to the petitioner. Learned counsel would submit that among 17 accused in this crime, there are many categories of ae persons i.e. Director of Insurance Medical Services, Subordinate Administrative Officers, Technical Officers and medical shop owners, but the ACB without any difference has attributed all the offences against all the accused treating them under one category.
6. Learned counsel submits that the petitioner has submitted his quotation on 17.08.2017 and he supplied medicines between 9016-17 and 2017-18. He further submits that two years back a vigilance enquiry was conducted, at that time they forced the petitioner to give a statement and that statement is the basis for the ACB to implicate the petitioner in the present case. According to his statement before the vigilance authorities is that he has been harassed without paying the outstanding amount of Rs.1.35 crores as he has not bribed them. It is the case of the petitioner that he has never made any statement that he purchased material for higher price and paid kickbacks.
7. Learned counsel submits that had the petitioner paid the amount, he might have get back the remaining amount of Rs.1.35 crores also. It is stated that as per the remand report itself the investigation officer has issued notice under Section 41-A Cr.P.C to the petitioner on 29.06.2020 and the petitioner has attended before the office of CIU, ACB, Vijayawada on 30.06.2020, 01.07.2020 and 02.07.2020. But the police have arrested the petitioner on 03.07.2020 on the ground that the petitioner has not revealed about how he committed the crime, who are the participants in the crime, that no documents were produced before the investigating officer, that the allegations leveled against him were denied and was not cooperating with the investigation,
8. Learned counsel would submit that every accused has right to remain silent and that cannot be a ground for arresting the accused. The arrest of the petitioner itself is contrary to Section 41-A of Cr.P.C. It is also urged that the petitioner was sent to Government Hospital, Guntur and without bringing to the notice of the Court about the health condition of petitioner, straightaway he was discharged from the hospital and sent to jail. It is the case of the petitioner that the copy of order or remand has not been furnished either to the petitioner or to his counsel. He relied upon the judgment of the Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar and another! and submits that the Courts cannot remand the accused in a routine manner and such remand should not only be based on record, but after due application of mind and basing on cogent reasons justifying such remand. According to the petitioner, the police have arrested and remanded him without following any of the principles laid down in Arnesh Kumar (supra) and in utter violation of procedure contemplated under the Code.
9. Learned counsel for the petitioner would submit that when the petitioner is ready to cooperate with the investigation, when there is no likelihood of tampering with the evidence and when the entire record is with the respondent, he cannot be kept in judicial custody that too amidst the prevailing COVID situation, which is most unwarranted. He further submits that he also filed a quash petition before this Court vide Crl.P.No.2348 of 2020 even before he was arrested and after hearing, the matter was posted to 29.06.2020 to enable the Special Public Prosecutor to file counter. But on that day the work was suspended and on 03.07.2020 the petitioner was arrested without filing any counter before the Court.
' (2014) 8 Supreme Court Cases 273 22 He further submits that the petitioner has been falsely implicated in the case for extraneous reasons and when he is ready to cooperate with the investigation, arresting the petitioner and 'sending him to judicial custody is unwarranted and further, he was sent to jail on 03.07.2020 and from the last 45 days, he was languishing in jail.
10. Learned counsel for petitioner submits that the only reason on which the judicial custody of the petitioner was sought by respondent is that the investigation is at initial stage, several witnesses need to be examined and relevant documents are to be collected, as there is likelihood to tamper/fabricate the evidence by the petitioner, as he is likely to intimidate or threaten the witnesses directly or indirectly jeopardizing the process of investigation which is most unwarranted according to the learned counsel and sought to enlarge the petitioner on bail.
11. Per contra, Sri S.M.Subhani, learned Special Public Prosecutor has filed the counter affidavit and submits that the petitioner earlier appeared before the Vigilance and Enforcement Authority and gave confession statement before the said officer and
- according to him, such statement was not made by any threat or force. As per the memo of instructions, the petitioner supplied drugs and surgical items worth Rs.2.75 crores upto the year 2018 to the ESI and the investigation conducted discloses that the petitioner /A-14 used to approach the then Director, IMS for orders of drugs and surgical items and as per oral instructions of the then Director of IMS, he used to submit quotations for drugs and surgical items after quoting prices at rates more than 50% of distributors price / price offered by RC firms.
12. Learned Special Public Prosecutor denied the fact that they have not filed counter in Crl.P.No.2348 of 2020 and in fact, they served counter on 03.07.2020. He Opposed the bail application Stating that the offences committed by the petitioner comes under the category of socio-economic offences involving public money and both the Apex Court and this Court held that those offences have to be dealt with separately. Learned Special Public Prosecutor has placed reliance on the following citations.
i) State of Gujarat Vs. Mohanlal Jitmalji Porwal and another?.,
ii) Shahzad Hasan Khan Vs. Isthiaq Hasan Khan3.
iii) CRM No.14916 of 2014 dated 24.11.2014 by the High Court of Calcutta.
iv) Prasanta Kumar Sarkar Vs. Ashis Chattarjee and another.+
v) State of UP through CBI Vs. Amarmani Tripathi.
vi) Mallampati Gandhi, S/o Nagaraju Vs. State of Telangana.
13. Learned Special Public Prosecutor submits that this is an economic offence where crores of public money is involved and as the investigation is at initial stage and they are yet to arrest some of the accused and as there is every likelihood of tampering the evidence and influencing the witnesses, the petitioner cannot be released on bail. He submits that the investigation so far done reveals that the petitioner is having complete knowledge of all the facts relevant to this crime including involvement of other public Servants and private persons. He submits that the possibility of Stoppage of flow of further evidence also cannot be ruled out in ? (1987) 2 SCC 364 > (1987) 2 SCC 684 *(2011)3 $cc (Cri.) 765.
such an eventuality. Learned Special Public Prosecutor also relied on the earlier orders passed by this Court in Crl.P.Nos.2393 of 2020, 2414 of 2020, 2419 of 2020 and 2351 of 2020, which were filed seeking anticipatory bail and he sought for dismissal of this petition also on the same grounds. Learned Public Prosecutor also relied on the order passed by this Court dismissing the regular bail applications in respect of accused Nos.5 and 15 on the ground that looking at the gravity of the instances involved and taking into consideration the possibility of interfering with the process of investigation including tampering with the witnesses is very much foreseen.
14. Heard the learned counsel for petitioner, learned Special Public Prosecutor for respondents and perused the record.
15. As per the material available on record, the petitioner is alleged to have committed the offence between 2016 and 2018 and at that time, a vigilance enquiry was held and the petitioner has given a statement before the enquiry officer. Basing on the said statement, the present crime was registered against the petitioner. Even as per the remand report, petitioner was issued notice under Section 41-A Cr.P.C by respondents and the petitioner has appeared before the office of C1U, ACB, Vijayawada on 30.06.2020, 01.07.2020 and 02.07.2020 and the petitioner has not revealed anything about the crime, he did not produce any documents and he denied the allegations leveled against him. It is stated that on 03.07.2020 also he attended the office and did not cooperate with the investigation and hence, he was arrested. The only reason appears to be for the arrest of the petitioner is that he has not admitted anything about committing the crime.
16. In Arnesh Kumar (supra-1) the Apex Court has discussed the procedure for issuance of notice under Section 41-A of Cr.P.C., as thus:
17.
"41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.
In the light of the law laid down by the Hon'ble Apex Court in Arnesh Kumar (supra-1), in this case though the petitioner was continuously appearing before the investigating officer, on the <= FS s<* ground that he denied the allegations leveled against him and failed to produce the documents he was arrested. In criminal law, the accused has right to maintain silence and that cannot be a reason to arrest the accused. The right to silence is a vital right recognized all around the globe. It emanates from Article 20 (3) of the Constitution of India, which is a privilege against self- incarnation. In this case, the whole basis for registering the crime against the petitioner is the statement made by him in the vigilance enquiry and the same is denied by the petitioner. The respondents failed to follow the procedure as enunciated by the Hon'ble Supreme Court in Arnesh Kumar (supra-1) and the ground on which the petitioner is arrested is unsustainable.
18. The learned Special Public Prosecutor submits that this Court dismissed the anticipatory bail applications filed by several other accused and he strenuously argued that the socio-economic offences are class apart and they have to be dealt with by this Court separately. As rightly pointed out by the learned Special Public Prosecutor the socio economic offences have to be dealt with separately.
19. The difference between those earlier petitions dismissed and the present petition is that those were filed seeking anticipatory bail by A-5, A-9, A-10, A-11 & A-16 and the said petitions were dismissed on 13.07.2020 by this Court. In the circumstances the apprehension of the prosecution that the accused may influence the witnesses and interdict with the investigation process cannot be ruled out. Whereas in this case in obedience to the notice issued under Section 41-A Cr.P.C, the petitioner has appeared 1U before the investigating officer and it is evident from the remand report that he is cooperating with the investigation, but the only reason for arresting the petitioner is that he has not accepted the allegation against him and not produced documents, which cannot be a ground for seeking judicial remand and furthermore the petitioner is languishing in jail from the past 45 days. Now the Special Public Prosecutor has come up with the argument that the prime accused are not arrested, which is also not tenable for the reason that the prosecution cannot keep these accused in judicial custody till they arrest the other accused.
20. The Hon'ble Apex Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan and Ors® has observed thus:
11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge.
21. The Coordinate Bench of this Court in Cri.P.Nos.2665 of 2020 and 2531 of 2020 has dismissed the regular bail applications filed on behalf of A-5 and A-15. The learned Judge was prima facie of the view that there is every likelihood of tampering with the evidence is foreseen.
5 MANU/SC/0214/2004 = 2004 Crl.L.J 1796 =» i
22. It is settled law that the Court before granting bail shall be prima facie satisfied that the accused if enlarged on bail will not be in a position to tamper with the evidence. When the prosecution makes the allegation of tampering with the evidence, it is the duty of the Court to satisfy itself whether there is any basis for that and in a mechanical way cannot be accepted.
923. In the case on hand, (1) absolutely no material is placed to show that there is likelihood of tampering with the material evidence. Admittedly, two years ago vigilance enquiry was done and entire record is lying with the respondents and the petitioner cannot have access to that. (2) There is nothing to show that it is impossible to secure the presence of the petitioner in the event of his release because even before his arrest, he appeared before the investigating officer. (3) The petitioner is languishing in jail from more than 45 days. (4) The argument of the Special Public Prosecutor that till the other accused are arrested, the petitioner should be kept in jail is not convincing to this Court.
24. The allegation against the accused is that he has paid 10% of order amount to Pithani Venkat, S /o Pithani Satyanarayana, the then Minister and 5% of order amount to Murali, PA of Pithani Satyanarayana, 5% of order amount to the Directorate ESI employees and 5% of order amount to the hospital staff towards bribe for issuing purchase orders. It is the case of petitioner that as he has not given bribe, his bills were not cleared and he is not the prime accused. No doubt the offence alleged against the petitioner is a socio-economic offence, which not only affects the economy, but also peoples' faith in the system. But that itself cannot be a ground to keep the accused in jail.
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25. The Hon'ble Apex Court in catena of cases observed that while granting bail the Court has to keep in mind the nature of accusation, 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 accused at the trial, reasonable apprehension of the witness being tampered with and the larger interest of the Public/State.
26. This Court prima facie is of the view that there is nothing placed before this Court to show that there is likelihood of tampering with the evidence and the process of investigation will be hampered if the petitioner is released on bail. Hence, the Court is prima facie satisfied that it is a fit case for granting bail.
27. In the result, the petition is allowed and the petitioner / A-14 shall be released on bail in respect of Crime No.03/RCO-CIU- ACB/2020 on the file of Anti-Corruption Bureau, C.I.U, A.P. Vijayawada on his executing a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties each for a likesum to the satisfaction of the Special Judge for SPE & ACB Cases, Vijayawada. The petitioner/A-14 shall appear before the Anti-Corruption Bureau, C.I.U, A.P. Vijayawada on every Monday and Thursday between 10.00 a.m. and 1.00 p.m. till filing of charge sheet.
As a sequel, all the pending miscellaneous applications are
-
closed.
Sd/- R. KARTHIKEYAN ASSISTANT REGISTRAR
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For ASSISTANT ISTRAR The Hon'ble Spl. Judge for SPE & ACB Cases, Vijayawada. The Superintendent, Vijayawada Sub-Jail The Anti-Corruption Bureau, C.1.U, A.P. Vijayawada One CC to SRI P V KRISHNAIAH Advocate [OPUC] Two CCs to PUBLIC PROSECUTOR (AP) Advocate [OPUC] HIGH COURT LKJ DATED:25/08/2020 ORDER CRLP.No.2536 of 2020 ALLOWED