Rajasthan High Court - Jodhpur
(Sher Khan vs . State Of Rajasthan) on 19 November, 2015
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B.CRIMINAL MISC. 2ND BAIL APPLICATION NO.10619/2015
(Sher Khan Vs. State of Rajasthan)
S.B.CRIMINAL MISC. 2ND BAIL APPLICATION NO.10754/2015
(Dhirendra Singh @ Chintu Vs. State of Rajasthan)
Date of order : : 19-11-2015
HON'BLE MS.JUSTICE NIRMALJIT KAUR
Mr. Vineet Kumar Mathur, Mr. Farzand Ali ] Mr. Pradeep Shah ], for the petitioners.
Mr. P.S. Bhati, Additional Advocate General with Mr. S.S. Rathroe, for the State.
<><><><> Reportable The present bail applications have been filed under Section 439 Cr.P.C. The petitioners have been arrested in connection with FIR No.251/2015 of A.C.B. Chowki Jaipur for the offence under Section 7,8,9,10,12,13(1)(A)(C)(D) r/w 13(2), 14 of Prevention of Corruption Act and Section 409, 120-B IPC.
Both the above-mentioned bail applications shall stand decided by this common order as they arise out of the same FIR.
The Anti Corruption Bureau Team, descended upon the office of CA-Shyam Sunder Singhvi at about 12.15 PM in Bhopalpura, Udaipur on 16.9.2015. They found one Sanjay Sethi, Dhirendra Singh @ Chintu present in the office and recovered Rs.2.50 crores from the bags. While explaining the possession of [2] such a huge amount, Sanjay Sethi stated that the said amount had been sent by Sher Khan - petitioner in Cr. Misc. Bail Application No.10619/2015 through Shyam Sunder Singhvi. The said money was sent by him to purchase two clay mines from Sanjay Sethi and Sanjay Sethi wanted to further purchase some land in Jaipur, through his friend. Dhirendra Singh @ Chintu - petitioner in S.B. Cr. Misc. Bail Application No.10754/15 on being questioned, stated that he was working with one KVS Chouhan for last 18 years. He had come to collect the money on the instructions of KVS Chouhan from the office of Shyam Sunder Singhvi to be handed over in the office of M/s. Arihant marbles. It was stated by him that he was not aware that the money was for illegal gratification. According to the prosecution, another amount of Rs.5 lakhs which were also recovered was stated to have been sent by Sher Khan on the demand of Ashok Singhvi, Principal Secretary, Pankaj Gehlot - Addl. Director, Pushkar Raj Ameta - Sr. Mining Engineer by Sher Khan as bribe amount for the grant of permission of illegal mining and reopening of the mines. On the basis of the said recovery, an FIR No.251/2015 was registered at ACB Chowki Jaipur.
The first bail application of the petitioners was dismissed as not pressed vide order dated 27.10.2015 with liberty to file fresh after the presentation of the charge-sheet. The second bail application is accordingly filed after the filing of the charge-sheet.
Learned counsel for the petitioner Sher Khan while praying for bail submitted that the petitioner is the owner of mines. He is [3] not a public servant, therefore, no offence under Section 409 IPC is made out against him especially because there is no communication between him and any public servant in relation to any mining work. He has been falsely implicated on the basis of call details between other co-accused. In fact, there is no call details on record between the petitioner and anyone else to connect him with the crime. He was neither present at the time of recovery of the alleged bribe amount from the co-accused and nor there was any evidence against him except the statement of the co-accused and the statement of the co-accused cannot be read in evidence. Further, as per the investigation report, all the co- accused had connived together to extort money from Sher Khan, the present petitioner by adopting a foolproof strategy. Permission for mining was refused and the mines were closed by raising superfluous objections. In the circumstances, the petitioner was left with no choice and was forced to part with the money. Thereafter, these officials, the co-accused used to order the opening of the mine after the bribe money was received by them. Hence, he was a victim of the circumstances created around him by the co-accused.
Similarly, learned counsel for Dhirendra Singh @ Chintu argued that he too is not a public servant. He is an employee of Nirma Company. He was simply sent by his employer to the office of co-accused namely Shyam Sunder Singhvi - CA for collecting the bag containing Rs.2 crores as alleged and that he had no knowledge about the transaction and transfer of money towards [4] illegal gratification and pleaded complete ignorance and innocence as he was simply complying with the instructions of his employer. It was accordingly pleaded that no criminal liability could be fastened upon him.
Mr. P.S. Bhati, learned Additional Advocate General appearing for the State while vehemently opposing the bail submitted that Sher Khan was the main accused. He threw his wealth at the officials of the mining department for the violation of environment loss. The prosecution has proceeded in the most honest and fair manner. The highest officer of the rank of Principal Secretary too has been booked as one of the accused. It was the petitioner who managed to manipulate things in his favour by reaching out to the highest officer of the State for his own benefit through his money power. Secondly, Section 409 IPC was a serious offence inviting sentence upto life imprisonment. Prosecution sanction has been received from the appropriate authority to proceed under the said section. The petitioner who is involved with the aid of Section 120B IPC cannot escape from his liability under the said offence. Thirdly, he is a history-sheeter. There are number of cases registered against him (Although, it was admitted that the same stands closed). He has money power and in case he is released on bail, it is most likely that he will try and influence as well as tamper with the evidence. It was contended that son of the petitioner Sher Khan had even tried to enter into the jail forcibly for which a Complaint No.163/2015 under Section 107, 151 Cr.P.C. was registered against his son [5] and last but not least, it was pleaded that the entire evidence was based on documents, call details intercepted through available technology and scientific inputs, expert opinion, FSL reports have yet to be received from the various institutions and laboratories with respect to the data of the mobile phones recovered from Shyam Sunder Singhvi, Pushkar Raj Ameta, Pankaj Gehlot, Mohd. Rashid, articles recovered from Ashok Singhvi, mobile recovered from Dhirendra Singh, the data stored in CCTV camera recovered from the field club, Fatehpur etc. and certain other documents recovered during the investigation which would take at least another two months. Hence, the petitioners should not be released on bail.
Learned counsel for the State also read out the transcription between Shyam Singhvi and Sanjay Sethi, Pankaj Gehlot and Sanjay Sethi, Sanjay Sethi and Pushkar Raj Ameta to substantiate the prosecution allegation that all of them were hand in glove with each other. The call details of Ashok Singhvi and Sher Khan were not under survilliance, hence, their text is not on record but it was stated that there were at least 444 calls between Ashok Singhvi - Principal Secretary, Department of Mining and Sanjay Sethi as well as 858 call details between Mohd. Rashid and Sher Khan. Besides, the text shows that Shyam Sunder Singhvi -CA was operating on behalf of Sher Khan. Shyam Sunder Singhvi boasted that he was the mentor of Sher Khan and he had direct access to Sher Khan and therefore all dealings could be safely done through him. Thus, it is Sher Khan who is the master of ceremonies and [6] root cause of all corruption leading to huge loss to the State Exchequer. The investigation is also pending under Section 173(8) Cr.P.C. and there is likelihood of presenting the supplementary charge-sheet.
Reliance was placed on the judgments of the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and another reported in (2004) 7 SCC 528 & Vaman Narain Gheeya Vs. State of Rajasthan reported in (2009) 2 SCC 281 to pray that in view of the gravity of offence alleged and the chances of the petitioner tampering with the evidence, the petitioner should not be released on bail.
Learned counsel for the parties were heard at length. A perusal of the charge-sheet filed by the prosecution shows that it is the own case of the prosecution that the co- accused of the petitioner Sher Khan had conspired together and finally pressurised and cornered the petitioner into giving them illegal gratification for reopening the mines. It would be worthwhile to reproduce the relevant portion of the investigation report (Challan) which reads thus :-
"खद न म ल क द र बनद कर ई गई खद न क च करव न क ल ए म नन य नय य य म ननवदन ककय ज न क अदश क क रण आर प गण द र ददन क 7.9.2015 क न द$स ज र& करव न क स थ ह& म नन य नय य य म कववय$ द यर करव न क ल ए षडयन, पव-क क य-व ह& श.र कर द& गई।
कय कक आर प गण द र षडयन, पव-क बनद कर ई गई खद न क2 क य-व ह& म इतन सकम नह& थ कक व म नन य नय य य म सफ ह प त और म नन य नय य य द र आर प शरख न क2 बनद खद न क च करन क आदश द ददय ज त त षडयन, क2 पररन नत म आर प गण क ररशत र लश नह& लम प त ।
इस पक र आर प प.षकर र ज आम$ द र षडयन, क2 क<य ननवनत म आर प म>हममद शरख न क2 खद न क2 [7] लशक यत करन क सबध म तथ कथथत फजB लशक यत कत -
र धशय म स न तDय र करव कर उसक म धयम स खननज अलGयनत क क य - य म लशक यत पश करव न , लशक यत पर षडयन, पव-क कम$& गदHत करव कर ज च करव न , ज च ररप $- क2 आड म खननज अलGयनत थचत>डगढ पर दब व बन कर खद न क बनद कर न क आदश व चतन प, ज र& करव कर अवDध रप स रपय ऐHन क2 ननयत स अनय आर प गण अश क लसघव , पकज गह त व सजय सHM क स थ आपर थधक ननयत स भष आचरण अपन त ह.ए षडयन, पव-क आर प म>हममद शरख न क2 खद न क बनद कर य ज न पण-तय पम णणत प य गय हD ।......"
"इस पक र उपर क व त - स आर प प.षकर र ज आम$ द र षडयन, पव-क आर प शरख न स रपय ऐHन क2 ननयत स उस पर दब व बन न क ल ए उसक2 षडयन, पव-क बनद कर ई गई 6 खद न क सबध म अखब र म छपव य ज न ब बत S तथय एव अखब र म उपर क खबर आन क ब द उपर क अखब र कद$ग आर प सजय सHM द र आर प अश क लसघव क व $सअप कफचर इमज क म धयम स पवषत कर सथचत कर दन सबध तथय क2 प.वष ह त हD ।......"
"इस पक र <म स. 17, 18, 19 म ह.ई उपर क व त - स आर प प.षकर र ज आम$ , सजय सHM एव अश क लसघव तथ पकज गह त क द र आपस म लम & Gगत कर षडयन, पव-क शरख न क2 खद न क ररशत ऐHन क2 ननयत स बनद कर य ज न एव आपस म लम & Gगत कर द&गर आर प शय म स.नदर लसघव क म धयम स ररशत प पत करन क उदशय स व त - कर शरख न स ररशत प पत करन क2 क य-व ह& करव य ज न ब बत S पकरण म वणण-त तथय क2 पव. ष ह त हD, स थ ह& आर प पष. कर र ज आम$ , सजय सHM एव अश क लसघव तथ पकज गह त क द र आपस म लम & Gगत कर द&गर खनन वयवस नयय क ररशत न क2 न यत स परश न करन ब बत S तथय क2 G प.वष ह त हD ।........."
आर प गण क2 व त - स सपष हD कक ददन क 11.09.2015 क समय 11:11 क प.षकरर ज आम$ व पकज गह त क मधय व त - ह.ई। इस व त - म प.षकरर ज आम$ शरख न क2 बनद ह.ई ख न क सबध म अखब र ब ज पर व त - कर रह हY और आम$ कह रह हD कक व पस च कर न म अपन क तर&क स क म करन पडग । इस पक र व त - स शरख न क2 बनद कर ई गई खद न क ररशत कर च कर न क <म म पकज गह त व पष. कर र ज आम$ क2 लम & Gगत G पम णणत ह त हD ।......."
The question here is of bail. It is regulated to a large extent by the facts and circumstances of each particular case. Apart from this, the likelihood of the accused escaping and his tampering with [8] the evidence is also to be considered to ensure fair trial.
From the above, it appears that the petitioner played into the hands of the co-accused and preferred to pay money to get his work done instead of fighting the system. Thus, giving rise to corruption.
Learned Additional Advocate General relied on the judgment rendered by the Apex Court in the case of Vaman Narain Ghiya (supra) wherein it is held that the question of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public as also the reasonable apprehension of tampering with the evidence or apprehension of the threat to the complainant. There is no dispute of the law laid down in the above mentioned judgment. However, in the case of Vaman Narain Gheeya (supra), the appellant was involved in several nefarious activities of smuggling of antiques, particularly idols to foreign countries for heavy sums of money. In the case of Kalyan Chandra Sarkar, the bail was cancelled by the Apex Court after taking into account the fact that number of accused had turned hostile after the accused was enlarged on bail and the allegations against him was for the murder of three persons and one seriously injured.
The Apex Court after taking into consideration both the judgments of Kalyan Chandra Sarkar (supra) & Vaman Narain Gheeya (supra) in the case of Sanjay Chandra Vs. Central Bureau of Investigation & other connected cases reported in [9] AIR 2012 SC 830 while releasing the appellant Sanjay Chandra, who had entered into criminal conspiracy with other co-accused persons to get UAS licence for providing telecoms services to otherwise ineligible company and wherein the accused were charged with economic offence of huge magnitude observed in para 26, 27 and 28 as under:-
"26. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is :
whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial.
Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he [ 10 ] should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
27. In `Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI. "
Applying the same principle in the present case, no apprehension has been expressed with respect to the likelihood of the petitioner Sher Khan fleeing from justice, although, apprehension has been expressed that the petitioner is likely to influence and tamper with the evidence. However, there is nothing on record which may enable this Court to conclude the same specially when it is submitted that the entire evidence is based on documentation and technology involving mobile phones, cameras etc. which admittedly are already confiscated by them and are very much in their possession.
Thus, mere apprehension without basis should not deter [ 11 ] this Court from extending the concession of bail and that too after the charge-sheet has been filed. The chances of filing a supplementary challan in the future cannot be made an excuse for keeping the petitioner in custody and that too when it is the own case of the prosecution as per the investigation report that the other co-accused had created circumstances forcing the petitioner to give bribe to get his work down. Besides, the petitioner has already spent more than 60 days in jail. Admittedly, the petitioner is also suffering from diabetes, high blood sugar which has affected both his kidneys and he has to undergo dialysis on regular basis.
With respect to the petitioner -Dhirendra Singh @ Chintu, learned Additional Advocate General pointed out that the material collected shows that he was regularly being used for sending money involving illegal gratification and therefore, he was very much part and parcel of the crime. The role attributed to the petitioner -Dhirendra Singh @ Chintu is of the carrier of the money. Learned counsel contended that from the transcripts of the conversation read out between Dhirendra Singh and Sanjay Sethi, it is evident that he did not know even about the location and place where he was to go to collect the money and was acting on the instructions of his employer.
In any case, the question here is of bail. No apprehension has been expressed that Dhirendra Singh @ Chintu is likely either to jump bail or that he is in a position in any manner to influence or tamper with the evidence. He is also in custody for the last more [ 12 ] than 60 days and challan has already been filed.
In the result, this Court orders that the petitioners (1) Sher Khan S/o Gulbaj Khan (2) Dhirendra Singh @ Chintu S/o Suryabux Singh be released on bail on their executing a bond with two solvent sureties each in a sum of Rs.2 lakhs each to the satisfaction of the trial court on the following condition:-
1. The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other authority.
2. They shall surrender their passport, if any (if not already surrendered) and he will not leave the country without pemission of the Court.
The State will be at liberty to make an appropriate application for modification/recalling of the order passed by this Court, if for any reason, the petitioners violate any of the conditions imposed by this Court.
(NIRMALJIT KAUR), J.
praveen