Allahabad High Court
Vinod Kumar Chaudhary vs Central Bureau Of Investigation, ... on 11 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1889
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 A.F.R. Case :- BAIL No. - 529 of 2020 Applicant :- Vinod Kumar Chaudhary Opposite Party :- Central Bureau Of Investigation, S.C.B., Lucknow Counsel for Applicant :- Pranjal Krishna,Shivam Pandey Counsel for Opposite Party :- A.S.G. Hon'ble Vikas Kunvar Srivastav, J.
1. The present bail application is of Vinod Kumar Chaudhary who is a co-accused in Criminal Case No.1426 of 2017 [C.B.I. Vs. Indrajeet Tiwari & Ors], Crime No.RC0532014A0006 of P.S. C.B.I./SCB/Lucknow under Sections 120-B read with 201, 204, 409, 420, 467, 468, 471 and 477(A) I.P.C. and Section 13(2) read with 13(1)(c) & (d) P.C. Act, Section 66 of the Information Technology Act, 2000 pending in the Court of learned Special Judge, C.B.I., Court No.6, Lucknow.
2. This first bail application is moved on 14.01.2020 by learned counsel Sri Pranjal Krishna, Advocate who is in assistance with learned Senior Designated Sri Nandit Srivastav, Advocate. Copy of the bail application has already been provided in the office of Additional Solicitor General pursuant thereto learned A.S.G, Senior Designated Sri S.B. Pandey, Advocate in assistance with learned counsel for the Central Government Sri Kazim Ibrahim, Advocate has put in appearance to protest the bail plea.
3. On 27.01.2020, a counter affidavit is filed by learned counsel Sri Kazim Ibrahim sworn by Sri Vinay Kumar Chaturvedi, Inspector, C.B.I, Special Crime Branch Office Complex. Thereafter, a rejoinder affidavit is filed on behalf of the accused-applicant on 06.03.2020.
4. The bail application was listed severally but the same could not be heard, meanwhile due to Pandemic of Covid-19, the State of U.P. including District Lucknow gone under complete lockdown and physical hearing in the courts was suspended. The urgent hearing after sometime was permitted through video conferencing and at that stage on the ground, the applicant is suffering from Chronic Hapatitis-B, mention was made before Hon'ble the Senior Judge on 06.05.2020 through e-mail on the prescribed website of the Court, the case was then nominated by Hon'ble the Senior Judge vide order dated 11.05.2020 to this Court.
5. Heard learned counsel Sri Pranjal Krishna, Advocate assisting his Senior designated Sri Nandit Srivastav, Advocate and learned A.S.G. Senior designated Sri S.B. Pandey, Advocate assisted by Sri Kazim Ibrahim, perused the record.
6. From the perusal of record as contended by learned counsels the matter appears to have initiated on the basis of two public complaints which were received one from Manoj Srivastav and another from Vinod Jain, to the effect that huge amount has been misappropriated in 27 Savings Accounts standing at Lalitpur Head Post Office under the Jhansi Postal Division in U.P. Circle. During the preliminary enquiry, it was found that one account was written twice, 26 accounts were found initially and an amount of Rs.16,15,600/- has been found defrauded. On the basis of report of said preliminary enquiry into complaints, an F.I.R. was lodged and the investigation proceeded. In investigation, it was found that the applicant is a Postal Assistant and he was found in conspiracy with other co-accused though being a public servant they committed criminal breach of trust and thus withdrawn by way of forgery, manipulation and falsification, thereby made a loss to the State to the tune of Rs.3,11,75,845/- and reciprocally obtained themselves illegal gain. They did so by modifying the data entries fed in computer and thereafter by deleting the same. As such in conspiracy with each other they destroyed the evidences of electronic documents also.
7. The applicant has made Annexure -1, the certified copy of the F.I.R. in Criminal Case No. 1426 of 2017 under Sections 120-B I.P.C. read with 201, 204, 409, 420, 467, 468, 471 and 477(A) I.P.C. and Section 13(2) read with 13(1)(c) & (d) P.C. Act, Section 66 of the Information Technology Act, 2000 Police Station- C.B.I./SCB/Lucknow, District- Lucknow.
8. In the aforesaid F.I.R. details of known/suspected accused with full particulars is given. From perusal of which it appears that including accused applicant total six accused are named who are respectively (1) Sri Indra Jeet Tiwari, Postal Assistant, Account Branch, Lalitpur Head Post Office. (2) Sri Shailesh Khare, Postal Assistant, Saving Bank Control Organization Branch, Lalitpur Head Post Office, Lalitpur. (3) Sri Vinod Kumar Chaudhary, Postal Assistant, Counter Clerk, Lalitpur Head Post Office (Present applicant). (4) Sri Sunil Tiwari, Agent. (5) Sri Anil Jain @ Anil Kumar Jain, National Savings Agent, Lalitpur Head Post Office. (6) Sri Manoj Singhal, National Savings Agent, Lalitpur Head Post Office, Lalitpur, U.P.
9. The said F.I.R. against the accused-applicant is registered on the complaint in writing made by Sri Mahendra Kumar Srivastav, Senior Superintendent of P.H.O., Jhansi Division, Jhansi addressed to the Superintendent of Police, C.B.I./S.C.B., Lucknow on 20.08.2014 with regard to the alleged fraud case of Lalitpur Head Office of Jhansi Division in U.P. Circle. The complainant has informed the Superintendent of Police, C.B.I./S.C.B., Lucknow that pursuant to the two public complaints namely of Sri Manoj Shivhare R/o Nai Basti, Lalitpur and Sri Vinod Jain R/o Ghanta Ghar, Lalitpur with regard to misappropriation of huge amount in 26 Savings Bank Account (particulars are given in the written complaint) standing at Latlitpur Head Post Office under Jhansi Postal Division in U.P. Circle, a preliminary enquiry was done. He further informed that in that preliminary enquiry it comes out that an amount of Rs.16,59,600/- has been defrauded. He further informed that the aforesaid two public complaints have disclosed that through data entry module, the entries of deposit were modified, therefore, all the available informations present in computers i.e. backup, was preserved during preliminary enquiry. As per departmental rules, the data backup should be taken everyday while last data backup was found of dated 08.6.2013, after restoration of backup data dated 08.06.2013. In this connection the preliminary enquiry further revealed that the account numbers mentioned in the aforesaid public complaints were checked in Sanchay Post (A programme of departmental Saving Bank). Out of 26 accounts, Pass books for only 5 S.B. accounts were found available in the Sanchay post and remaining 21 S.B. accounts mentioned in the complaint were shown in computer as "invalid accounts". It was found that the said 21 accounts were deleted from the system after withdrawal of amounts. It was also pointed out in the report of preliminary enquiry that all aforesaid 26 accounts were again checked in the system and they were found active up to 08.06.2013 which indicates that these accounts were deleted only after 08.06.2013. The said preliminary enquiry report on the basis of which the F.I.R. was registered further discloses that the allegation made in said two public complaints and also in the report of preliminary enquiry, it is prima facie found that there is a gang operating in Lalitpur Head Post Office comprising Sri Indrajeet Tiwari, Postal Assistant, Account Branch, Lalitpur Head Post Office, Sri Shailesh Khare, Postal Assistant, Saving Bank Control Organisation Branch, Lalitpur Head Post Office, Sri Vinod Kr. Chaudhary, Postal Assistant, Counter Clerk, Lalitpur Head Post Office, Sri Sunil Tiwari, Agent, Sri Anil Jain and Sri Manoj Singhal, National Savings Agent, Lalitpur Head Post Office.
10. The mode and manner by which the aforesaid gang of accused persons defrauded the huge amount of public money is described in the complaint and the report of preliminary enquiry that they installed Data Entry Module in there respective systems in Account Branch and then Sri Indrajeet Tiwari and Sri Shailesh Khare used the computer of account branch to modify the deposit amount in the Data Entry Module in the Post Office computer record. Thereafter, they use to sent someone at the counter to withdraw money. At the counter, Sri Vinod Kumar Chaudhary, Postal Assistant use to help them in taking withdrawal in huge amount. In order to put a smoke screen over these fraudulent withdrawals, this gang used to take witness of above mentioned National Savings Agent on the withdrawal vouchers. On the basis of forged witness done by National Savings Agent, Sri Anil Kumar Jain and Sri Manoj Singhal huge amount of money was misappropriated. It is further complained that in this way they committed fraud in more than six thousand entries and crores of rupees have been defrauded by their gang. The preliminary enquiry further found that Data Entry Modules in other 32 accounts also fraud to the tune of Rs.27,42,200/- have come to the notice with a total amount of Rs.44,01,800/- till 10.06.2014. In the course of checking other accounts as per ledger entries it was found that from the backup data dated 08.06.2013 in respect of accounts fraudulent entries were made by the gang using Data Entry Module which were actually opened in the name of various different account holders mentioned against them. The amounts were withdrawn by fake/imposter persons with this modus operandi and huge some of money were misappropriated, though the actual depositor have not withdrawn their amount. Their amount was fraudulently withdrawn by the gang. It is further mentioned that it is prima facie responsibility of the counter Postal Assistant and Assistant Post Master (A.P.M.) to check and verify the name and identity of correct account holder which was not done by the officials namely Sri Vinod Kumar Chaudhary and Anil Kumar Jain. The amount of aforesaid 32 accounts is Rs.27,47,200/-, the enquiry report as mentioned in the complaint further discloses that National Savings Agent were also involved in this fraud as it is evident from the fact that amount of Rs.16,59,600/- were credited into the Government account by them namely, Sri Anil Kumar Jain and Sri Manoj Singhal as per report of the Post Master Lalitpur, Head Post Office. The complainant further reveals that the departmental enquiry reached at conclusions, the irregularity in Savings Bank Accounts has been detected with involvement of defrauded amount of Rs.44,01,800/- by the aforesaid modus operandi.
11. It is pertinent to note here that the applicant challenged his prosecution in criminal case no. 1426 of 2017 (C.B.I. Vs. Indrajeet Tiwari and Ors.) detailed hereinabove U/S 482 Cr.P.C. No.8428 of 2018 moving Criminal Misc. Application in the High Court, Lucknow Bench for the relief of quashing the prosecution A co-ordinate Bench of this Court refused to interfere vide order dated 10.01.2019. It was requested by learned counsel for the petitioner that the grievance of the petitioner would be sufficiently met in case bail application of the petitioner is considered expeditiously in accordance with law. The Court ordered "In view thereof, it is provided that if the petitioner surrenders before the Court below within three weeks from today and applies for bail, the court below will consider the same, in accordance with law in view of the observation made in the case of Lal Kamlendra Pratap Vs. State of U.P. reported in 2009 (3) ADJ 328 (Supreme Court). For a period of three weeks, no coercive steps shall be taken against the petitioner. With the aforesaid, the petition is disposed of."
12. The present bail applicant failed to move the bail application within the aforesaid prescribed time before Special Judge, C.B.I. concerned pursuant to order dated 10.01.2019 and he again moved to the High Court U/S 482 Cr.P.C. on the ground that applicant is seriously ill and is suffering from Chronic Hepatitis-B and acute Jaundice, therefore, could not moved the bail application within the aforesaid prescribed time. He further prayed for some more time. His application was allowed vide order of the Court dated 18.12.2019. The relevant portion whereof is being quoted hereunder:-
"Time is extended by one week only. In case petitioner surrenders before the Court below within one week from today and applies for bail, the Court below will consider the same in accordance with law in view of the observation made in the case of Lal Kamlendra 2009 (3) ADJ 328 (Supreme Court)".
Pursuant thereto the applicant moved the application for grant of bail before the Special Court, C.B.I., Lucknow. The occasion of present bail application before this Court has arisen from the rejection of the bail application by the Special Judge, C.B.I., Lucknow on 07.01.2020.
13. The applicant by filing his first bail application before this Court has submitted that he is in jail since 07.01.2020. In the affidavit filed in support of the bail application it is stated that pursuant to the F.I.R. dated 28.08.2014 wherein the applicant is accused along with the other co-accused investigation is completed and charge sheet is filed therein on 30.06.2017 against him along with the other co-accused for committing the offence of criminal conspiracy through breach of trust, cheating, forgery of valuable documents, using forged documents as genuine and falsification of accounts by the abuse of official position etc., thereby causing an undue loss of approximately 44,01,800/- to the government exchequer and corresponding wrongful gain to themselves under the relevant Sections of I.P.C.
14. It is argued by learned counsel that a circle level enquiry of this fraud was conducted by Director Postal Services, the report of the enquiry dated 08.05.2015 states the role of Mr. Mahendra Kumar Srivastava (the complainant in present case), the then Senior Superintendent of Post Office, Jhansi Division, Jhansi. It is alleged in this report that Mr. Mahendra Kumar Srivastav (the complainant) is one of the principle offenders of this fraud and was having effective in departmental rules of transfer and posting of employees or officials and also manipulation of records. He was placed under suspension by the Postal Department.
15. The written complaint dated 20.08.2014 made by Sri Mahendra Kumar Srivastav, whereupon on 28.08.2014 the present F.I.R. is registered was submitted on preliminary enquiry done by him on two private complaints dated 04.03.2014 by Mr. Vinod Jain and 05.03.2014 by Mr. Manoj Shivhare. Learned counsel for the bail applicant further drew the attention towards the contents of aforesaid public complaints that they were apparently against Mr. Mahendra Kumar Srivastav himself along with the other three accused. Even then he was entrusted with the preliminary enquiry which he did almost in five years and thus save his skin, he fabricated the things towards the accused applicant.
16. Learned counsel further submitted that the charge sheet filed on 30.06.2017 itself shows the aforesaid fraud committed by the officials of the Post Office including the present accused-applicant in a conspiracy along with other co-accused holding the same post of Postal Assistant and also making entries in the computer and they are in a position to delete the original date entry. Some of the co-accused who are National Savings Agent were also shown in the commission of offence under conspiracy. As such each of the accused in the present case shown equally involved in the offence apparently have similar role as alleged in the prosecution case. The role of the applicant in the F.I.R as alleged is merely on speculation, the evidence with regard thereto is neither mentioned in the preliminary enquiry report, FIR nor in the charge sheet, therefore, prima facie the role, complicity and involvement of the accused in the alleged conspiracy is not established.
17. Learned counsel further argued that so far as allegation as to the offence of forgery of valuable security and that of cheating, dishonesty, inducing delivery of property is concerned, the applicant has neither forged nor destroyed any valuable security, nor it is the case of prosecution also, moreover, the bare perusal of the charge sheet sufficiently shows that no act of applicant can make him liable within the scope of the above mentioned offences.
18. Learned counsel further argued that there is no iota of evidence in the charge sheet to connect the applicant with the forgery of any document and therefore, prima facie the prosecution has no material to show the commission of offence by the applicant-accused under Sections 467, 468, 471 of the I.P.C.
19. Learned counsel for the bail applicant vehemently argued that the allegation as to the obtaining unlawfully or by any dishonest or fraudulent manner undue gain causing loss to the public money. It is also not prima facie established from the prosecution case, as out of the money defrauded, the applicant has not received any amount in his account. Learned counsel further argued the applicant had ever been co-operative with the Investigating Officer, he has completed about four years service honestly and with full dedication to the Postal Department, he has to live life, which is expected to be considerably long, therefore, his application for release on bail should be considered on the aforesaid reasons.
20. He further submitted that not only in the preliminary enquiry and the departmental enquiry by the Postal Department but also after the registration of the F.I.R by the C.B.I., he had ever attended each and every call of the C.B.I. for more than five years, though he has never been arrested. He further submitted that he has been given in his petition U/S 482 Cr.P.C. by the Hon'ble Court two times, order of stay of arrest in the present matter, but even then he has never absconded and always have submitted himself to the process of the Court. Pursuant to the order of the Court, he has moved a bail application before the Special Court of C.B.I. and meanwhile has always been attending each and every proceeding. Learned counsel further submitted that as prima facie no offence is made out against the applicant and in aforesaid offences, the Special Court, C.B.I. has released on bail the co-accused Shailesh Khare vide order dated 24.01.2018 and Kalu Ram vide order dated 14.05.2019 (Annexure No.9). Later on the co-accused Anil Kumar Jain, Manoj Kumar Singhal were also granted bail by this Court vide order dated 17.07.2019 (Annexure No.10), therefore, he should also be released on bail so that he may be able to put his defence properly when the trial begins.
21. Learned counsel further argued that despite the submission of charge sheet on 30.06.2017 still the trial has not begin, the accused is in Jail since 07.01.2020, though he is suffering from serious ailment, the Chronic Hepatitis-B and he is suffering a lot in incarceration. Learned counsel has made Annexure No.11 to the bail application, the medical prescription and treatment with that regard. Learned counsel further submitted that the First Information Report was registered on 28.08.2014, the applicant complied with all directions of the Investigating Officer and assisted the Investigating Officer. During entire period of investigation the applicant had co-operated in the investigation. During the entire period he had never been arrested but he never absconded from the process of the investigation, he has no criminal history. Relying on the judgment in case of Dataram Singh Vs. State of U.P. (2018) 3 SCC 22 and Bhagirath Singh Jadeja Vs. State of Gujarat reported in AIR 1984 SC 372. Learned counsel concluded his argument with a prayer to release the accused-applicant on bail.
22. On the other hand, learned A.S.G. has opposed the bail plea of the accused-applicant on the ground that accused-applicant is participant in criminal conspiracy for withdrawing fraudulently from the National Savings Bank account of the depositors in Post Office which is public money. The accused applicant along with other co-accused has drained out a huge amount of public money. Learned A.S.G. further argued that it is clear and evident that National Savings Agents were also involved by the accused applicant and his companions in the conspiracy to commit the fraud. From the fact that the aforesaid agents arraigned in the present crime case have deposited Rs. 16,59,600/- and the same have been credited in the relevant account. The said National Savings Agent are Sri Anil Kumar Jain and Sri Manoj Singhal who are co-accused with the present applicant and other co-accused. Learned A.S.G. drew the attention towards the role of the present applicant that he is Postal Assistant and Counter Clerk, he has duty to verify the person seeking withdrawal of amount and present before him on the counter by documents like K.Y.C., Aadhar, etc. The applicant illegally omitted to discharge his duties acting under under the conspiracy and let the withdrawal done on the forged documents by imposters.
23. Learned A.S.G. argued that the applicant being a public servant posted as a counter clerk (Postal Assistant) has committed criminal breach of trust by accepting forged vouchers getting forged witnesses and thus facilitated the payment on withdrawal of the deposit in account of Savings Bank. He further submitted that during investigation it is implicated that the accused applicant working as counter clerk intentionally without identifying the real account holders done the process of withdrawal therefrom on the basis of forged identity presented by imposters.
24. Learned A.S.G. argued that this was role of accused participant in the conspiracy and as such the applicant forged more than 400 Savings Account and withdrew amount from more than 100 accounts in aforesaid manner. Thereafter the original data entry and accounts were modified and deleted. According to prosecution the fraudulent withdrawal of amount was done from more than 169 National Savings Account with the complicity and involvement of the accused-applicant, causing the loss of Rs.1,31,35,200/-, this is a huge amount.
25. He further submitted that the applicant as it is revealed from the record, was absconding and when on 21.03.2018 an N.B.W was issued, after a considerable delay, when process was issued under Section 82 Cr.P.C. vide order dated 02.12.2019 of the Special Court and enforced, he put appearance before the Court. As such the argument of learned counsel for the bail applicant is not true that accused-applicant co-operated during the investigation and he will ensure his attendance during trial, as it is doubtful from the conduct of the accused, therefore, he should not be released on bail so as to ensure the trial to proceed further.
26. After hearing the rival contentions of learned counsel for the parties and perusal of the record, it is clear that prosecution case is with regard to the fraudulent withdrawal from the National Savings Account by the accused persons who are public servants, posted in various capacity in the service of Postal Department. A huge amount of public money is drained out whereby there had been a considerable loss of public money to the Government and an undue gain to the accused. This is also the case of prosecution that the officials of the post office namely Indrajeet Tiwari, Shailesh Khare and the present accused-applicant, Vinod Kumar Chaudhary were in collusive concert and conspiracy with the co-accused Sri Sunil Tiwari (Agent), Sri Anil Jain, Sri Manoj Singhal, National Savings Agent and thus had developed a modus operandi, wherein the amount deposited in National Savings Account in post office by public was used to have been withdrawn on forwarding of other co-accused, putting forth fictitious and imposter depositors in place of real depositors. For withdrawal they used forged documents and the applicant as Counter Clerk used to accept the forged identity of the imposters without any verification with the original entries fed in the computer. Thus he permitted the withdrawal. Thereafter the three co-accused, the officials of a Bank used to modify the entries accordingly and thereafter delete the same. This obviously, is a serious white collar offence considerably heinous with regard to the fiduciary relation of the real depositors of the National Savings Account and their trust with the Post Office as well as the Postal Employees. The said offences as being prima facie revealed from the prosecution case, the complaint and the investigation by the C.B.I. that none of the co-accused has suspended different liabilities born out of it. Their roles cannot be assessed as lesser or heavier as they have committed the offence in concert with each other with a common object to give effect to the dishonest and illegal withdrawals. If all these are proved by evidences in trial, the punishment would be severe, they cannot be placed at this stage at different pedestals, even the National Savings Agent, co-accused in the present case are also liable to be placed on the same pedestal along with the other co-accused.
27. This is a fact, important for taking into consideration that charge sheet has been filed on 30.06.2017, the learned A.S.G. has not informed the court that any further investigation either ordered by the court are intended. It is informed to the Court that despite the fact charge sheet is submitted, till today charges are not framed by the Special Court. It is more than two years elapsed from the date of submission of charge-sheet still trial has not begun. The co-accused persons namely Anil Kumar Jain and Manoj Kumar Singhal were enlarged on bail, the present accused-applicant is in jail since 07.01.2020. Why the charges are not framed by the Special Court, is not reasonably explained. This is certainly unreasonable and unnecessary delay on the part of the Special Court, C.B.I.
28. From the order of this Court dated 10.01.2019 in Criminal Misc. Application U/S 482 Cr.P.C. bearing no.8428 of 2018, it reflects that stay of arrest was sought on the ground of applicant's suffering from Chronic Hepatitis-B whereupon for the interim period arrest was stayed prescribing time to appear before the Special Court for moving application for bail. The fact of applicant's suffering from Chronic Hepatitis-B disease is not controverted by the State in his counter affidavit though it is mentioned in the bail application and also in the application for urgent hearing dated 16.04.2020 in para-3 of the written submission, quoted hereunder:-
"That it is humbly submitted that the applicant is suffering from severe Hepatitis-B which if not treated at the immediately may even lead to liver failure or even cancer. It is humbly submitted that the petitioner is the sole bread-winner of family having a one minor son of only 1.5 years and a wife suffering from multiple chronic ailments such as life threatening gynecological problem coupled with stone in her kidney and has been advised to undergo surgery. The medical condition of his wife is continuously deteriorating and during this period of lock-down she is facing a great hardship even for securing her bread and butter. The medical prescriptions of the applicant along with the medical prescription of his wife, have already been annexed along with the bail application [Annexure-11 of the bail application]"
29. Learned counsel for the bail applicant in rebuttal of the arguments done by learned A.S.G. submits that on 30.01.2020 the World Health Organization declared the Novel Covid-19 i.e. Corona Virus as a pandemic which was specifically recognized by Govt. of India vide Circular No.212/MISC/PF/2020/SCA(G) issued by the Ministry of Health, Government of India, New Delhi. He further contended towards the fact that deadly Corona Virus has almost reached at stage 3 which is the stage of community spread of virus, putting the overcrowded places like Jails at a high risk and inmates such as present applicant who are already suffering from multiple ailments as a result of which has very low immunity, have more risk in general, become extremely vulnerable at this time. On the basis of aforesaid facts, he further prayed to give him benefit of parity also as other co-accused involved in the similar offences have been given bail.
30. Taking into consideration the aforesaid fact, the grounds and relevant consideration while granting or refusing bail it would be pertinent to refer here the relevant para-24 and 25 of the Judgment of Apex Court in Nimmagadda Prasad Vs. C.B.I. reported in 2013 (7) SCC 466 are cited hereunder:-
"24. 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. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs 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."
31. It is important to reiterate here that the role of accused cannot be distinctly carved out in the case of conspiracy as put forth by the prosecution, the other co-accused who are at par with the present applicant and the nature of evidence in support of the allegations constituting the offences, with which they are arraigned, are the same as collected and produced by the investigating officer. The claim of the accused-applicant for the benefit of parity, as the other co-accused are granted bail is worthy of consideration. At this stage it would be relevant to refer the case of Dataram Singh Vs. State of U.P. & Ors. reported in 2018 (3) SCC 22 wherein the Apex Court has described the factors and consideration for grant or refusal of bail and while considering the right to bail the human approach is of essence, the Apex Court has held that in jail due to non adherence of the basic principle of criminal jurisprudence regarding grant of bail and presumptions of innocence, para-14 to 16 of the judgment are cited hereunder:-
"14. Even though the State of Uttar Pradesh has been served in the appeal, no one has put in appearance on its behalf. As far as the complainant is concerned, no reply was filed by the time the matter was taken up for consideration on 29th January, 2018. Accordingly, the matter was adjourned to 2nd February, 2018 by which date also no reply was filed by the complainant. As mentioned above, no one has put in appearance on behalf of the State of Uttar Pradesh to oppose the grant of bail to the appellant.
15. Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal.
16. In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody's case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity."
32. In Gudikanti Narsimhulu Vs. Public Prosecutor reported in 1978 (1) SCC 240 in para-1 & 6 Hon'ble Mr. Justice Krishna Iyer has observed as follows:-
"1. "Bail or jail?" -- at the pre-trial or post-conviction stage -- belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right.
6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. [ Mod. Law Rev. p. 50 ibid., 1852 I E & B 1] Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:
"I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.
In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death."
33. Since at the stage of grant or refusal of bail the detailed examination of evidence and elaborate documentation of merit of the case need not be taken, there is a need to indicate such orders reasons for prima facie concluding while bail was being granted particularly where accused is charged of having serious offences. No doubt the accused applicant is involved in offences punishable under Sections 120-B read with 201, 204, 409, 420, 467, 468, 471 and 477(A) I.P.C. and Section 13(2) read with 13(1)(c) & (d) P.C. Act, Section 66 of the Information Technology Act, 2000. Literally there are serious offences but in the present case the other co-accused have been granted bail earlier, the applicant before this Court is languishing in jail since 07.01.2020, though charge sheet has already been submitted. The applicant is in custody for a long. In the supporting affidavit to the bail application it is averred that, applicant is suffering from several ailment. According to the information given to the court despite the submission of charge-sheet in the Court trial has not begun and even charge is not framed against the accused persons. From the grant of bail, it appears that co-accused are within the reach of the court and subject to it's process, then also the trial is not proceeded. In case of delay in trial it is held repeatedly by Hon'ble Supreme Court, bail should be granted, as keeping under trial in jail custody for infinite period violates the liberty under the constitution. It would be relevant to refer at this stage, the judgment of Hon'ble Apex Court in the case of Deepak Subhash Chandra Mehta Vs. C.B.I. and Anr. reported in 2012 (4) SCC 134, para-32 and 35 of the judgment cited hereunder:-
"32. 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 merits 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. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.
35. As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safe guard the interest of the CBI."
34. In a case like the present one where many accused serving in public service, involved in offence of fraud and misappropriation of huge amount of government money, every accused is similarly situated, should not be proceeded separately. In a case of present nature the applicant on the basis of doctrine of parity should be considered for grant or refusal of bail having regard to the bail granted to the other co-accused either by Special Court, C.B.I. or by this Court also. How so ever grave may be the offence but if the charge sheet is submitted and there is a delay in proceeding with the trial unreasonably resulting into incarceration of the accused, in such circumstances the accused may be fit for grant of bail for the time being.
35. On the basis of discussions made hereinabove, considering the facts and circumstances of the case, without expressing any opinion on merit of the prosecution case as to the complicity, role and involvement of the applicant in the offence, I find it to be a fit case for grant of bail for time being.
36. The application for grant of bail is conditionally allowed, however, it is made clear that while releasing the applicant on bail heavy amount of sureties shall be imposed to ensure his presence during trial.
37. Let the applicant Vinod Kumar Chaudhary be released on bail for four months from the date of his release under the order in the Criminal Case No.1426 of 2017 [C.B.I. Vs. Indrajeet Tiwari & Ors], Crime No.RC0532014A0006 of P.S. C.B.I./SCB/Lucknow under Sections 120-B read with 201, 204, 409, 420, 467, 468, 471 and 477(A) I.P.C. and Section 13(2) read with 13(1)(c) & (d) P.C. Act, Section 66 of the Information Technology Act, 2000 on his furnishing a personal bond and two heavy sureties to the satisfaction of the court concerned and subject to the conditions which are being imposed in the interest of justice. It is further made clear that within the aforesaid four months, the Special Court, C.B.I. to ensure presence of all the co-accused before it for framing of charges, thereafter to begin with the trial and concluded the same.
38. The applicant is further ordered to surrender before the Court concerned after the expiry of aforesaid period of four months. The applicant is further subjected to following conditions in addition to those imposed by the court concerned:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 11.6.2020 Gaurav-
[Vikas Kunvar Srivastav, J.]