Allahabad High Court
Rakesh Kumar Jain vs Cbi on 30 September, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 20.09.2022 Delivered on: 30.09.2022 Court No. - 66 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18216 of 2021 Applicant :- Rakesh Kumar Jain Opposite Party :- C.B.I. Counsel for Applicant :- Shiv Sagar Singh Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Samit Gopal,J.
1. Heard Sri Manish Gupta and Sri Shiv Sagar Singh, learned counsels for the applicant and Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the records.
2. The present anticipatory bail application U/S 438 Cr.P.C. has been filed with the following prayer:-
"It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to release the applicant on anticipatory bail in Case Crime No.RC/DST/2015/A/0004) dated 30.07.2015 u/s 120-B IPC read with 409, 420, 466, 467, 469, 471 IPC & Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988 Police Station STF, CBI New Delhi; otherwise the applicant shall suffer irreparable loss and injury and/or pass such other and further orders which this Hon'ble Court may deem fit and proper in the circumstances of the case."
3. At the outset, learned counsel for the C.B.I. raised a preliminary objection regarding maintainability of the present application as the applicant has approached this Court directly and not approached the court below at the first instance. He has placed paragraph 3 of his short-counter affidavit dated 27.01.2022 as his preliminary objection for the same. He states that no special circumstance has been mentioned for the same as has been held by the Full Bench of this Court in the case of Ankit Bharti vs. State of U.P. & Another: 2020 (3) ADJ 165 (F.B.).
4. Learned counsels for the applicant state that the present petition had been filed on 20.10.2021 and raising the said objection now is not in the interest of justice and in the fitness of things.
5. This Court ignoring the said preliminary objection proceeds to hear the petition on its merit.
6. A first information report was lodged on 13.01.2012 against Yadav Singh & others as Case Crime No. 371 of 2012, under Sections 120-B read with Section 409, 420, 466, 467, 469, 471 I.P.C., Sections 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 at Police Station- Sector 39, Noida, Gautam Budh Nagar, U.P. for the alleged corrupt practices of the executive engineer working therein between 14.12.2011 and 23.12.2011 while executing engineering work in which agreement bonds of Rs. 954.38 crores were executed by Engineering Department of Noida. The investigation concluded and the State police submitted its closure report which was accepted by the District & Sessions Judge, Gautam Budh Nagar on 27.11.2014.
7. Thereafter a Division Bench of the Lucknow Bench of this Court passed an order on 16.07.2015 in Misc. Bench No. 12396 of 2014 (Dr. Nutan Thakur vs. State of U.P. and others) directing the C.B.I. to conduct investigation in all the allegations of corruption and amassing of unaccounted money by Yadav Singh, the then Chief Engineer, Noida / Greater Noida and Yamuna Expressway Authority and other persons in regards to the transactions relating to the same.
8. The C.B.I. took up the case and lodged a first information report as Case No. RC/DST/2015/A/0004/CBI/STF/DLI of 2015, Police Station S.T.F., New Delhi on 30.07.2015. The investigation was handed over to the Deputy Superintendent of Police, C.B.I., S.T.F., Delhi.
9. Learned counsels for the applicant argued that the applicant is not named in the first information report. It is argued that he is not named in the charge-sheet dated 15.03.2016 and supplementary charge-sheet dated 31.05.2017. Subsequently his name has appeared in the charge-sheet dated 06.10.2021. Paragraph 15, 16 & 17 of the affidavit in support of anticipatory bail application has been placed before the Court. It is argued that the applicant has filed the present application under Section 438 Cr.P.C. before this Court as he has read in newspaper in news item in Times of India dated 30.08.2019 and Jagran dated 02.07.2020 that sanction for prosecution of 09 officers is sought by the C.B.I. in the Noida Cricket Stadium Project. Paragraph 18 of the affidavit has been placed for the same. The same reads as under:-
"18. That the Applicant seeks the protection and indulgence of this Hon'ble Court in the light of the following fact, which has constrained the Applicant to prefer the instant bail application;
i. News item from Times of India dated 30.08.2019 reporting that the Sanction for prosecution of 9 officers is sought by the Respondent CBI in the Noida Cricket Stadium Project.
ii. News item from JAGRAN dated 02.07.2020 reporting that the Sanction for prosecution of 09 officers is sought by the Respondent CBI in the Noida Cricket Stadium Project.
iii. An arbitration process is sub-judice before the Hon'ble Justice (Retd.) Sh. G.P. Mathur in the instant matter of Noida Cricket Stadium. Copy of the order dated 27.07.2020 in the arbitration process of Noida Cricket Stadium is annexed herewith and marked as Annexure No. 4 to this affidavit."
10. It is argued while placing paragraph 19 and 20 of the affidavit that Amar Chand Singh, the Finance Controller of Noida Authority has been granted interim anticipatory bail vide order dated 08.09.2020 by this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 5579 of 2020 and further S.K. Srivastava, Anil Kumar Sharma and Devendra Kumar Gangal, have been granted interim anticipatory bail by this Court vide orders dated 13.10.2020, 25.11.2020 and 07.01.2021 in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. Nos. 6909 of 2020, 8184 of 2020 and 9763 of 2020 in the matters relating to Noida Cricket Stadium. It is argued that the applicant is aged about 62 years and has superannuated as APE (Estimates), Noida. Paragraph 23 of the affidavit has been placed before the Court. It is argued that as such the applicant be granted anticipatory bail.
11. Per contra, learned counsel for the C.B.I. opposed the prayer for anticipatory bail and argued that the implication of the applicant has surfaced in the matter during investigation. The present matter is such in which although one first information report which is mentioned in the prayer of the present anticipatory bail application was lodged but different charge-sheets have been submitted in regards to different offences. Learned counsel has argued that from investigation, it transpires that the applicant along with Anil Sharma, the then JE (Contract), Deepak Kumar, the then Junior Engineer, R.K. Johri, the then JE (T), S.K. Gupta, the then PE, Santosh Kumar Srivastava, the then CPE, Sant Ram, the then CPE, Yadav Singh, the then Chief Engineer / Engineer-in-Chief and A.C. Singh, the then Finance Controller have facilitated approval on inflated estimates and violated rules and regulations in allotting work to M/s. Anand Buildtech Pvt. Ltd. (JV) through corrupt and illegal means in connivance with Devendra Kumar Gangal, the Director of the said company and N.U. Khan, the then Senior Consultant of M/s. STUP Consultant Pvt. Ltd. by abusing their respective position which has caused wrongful loss to Noida Authority to a tune of Rs. 86,81,267.48 and corresponding wrongful gain to the private contractor namely M/s. Anand Buildtech Pvt. Ltd. (JV). It is argued that as such charge-sheet under Sections 120-B, 420, 465, 471 I.P.C. and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 has been submitted against the applicant and other accused persons. The copy of the said charge-sheet is annexed as Annexure SCA-1 to the short counter affidavit dated 27.01.2022. It is argued that the applicant has been absconding since the filing of the charge-sheet. It is argued that the present anticipatory bail be thus dismissed.
12. After having heard learned counsel for the parties and perusing the records, it is evident that the applicant in active connivance and active conspiracy with co-accused persons was involved in embezzlement of huge Government funds. The Apex Court while deciding a matter of economic offence at the stage of anticipatory bail has in paragraph nos''. 69, 72, 76, 77, 78, 80 and 81 in the case of P. Chidambaram v. Directorate of Enforcement : (2019) 9 SCC 24 has held that power under Section 438 Cr.P.C. is an extraordinary power and has to be exercised sparingly, it should be granted only in exceptional cases, nature and gravity of offence has to be seen and refusal to grant anticipatory bail would not amount to denial of the rights conferred upon the accused under Article 21 of the Constitution of India. It was further held that cases of economic offences stand as a different class as they affect the economic fabric of the society. It was observed that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community. It was held as under:
"69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights--safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514], the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar [Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379 : (2012) 2 SCC (Cri) 468] , the Supreme Court held as under : (SCC p. 386, para 19) "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345], State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)"
78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364], it was held as under : (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552], the Supreme Court held as under : (SCC p. 449, paras 34-35) "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
(emphasis supplied)"
13. The act as done by the accused persons was a well planned criminal conspiracy of syphoning of Government money. Charge-sheet has been submitted against the applicant and other accused persons after investigation. The amount involved in the matter of State exchequer is too heavy. There had been a well knit conspiracy to commit the offence in which every accused posted in the establishment had played a vital and important role without which it could not have been executed. The applicant had been absconding after submission of charge-sheet. This Court does not find it a fit case for interference.
14. Accordingly, the anticipatory bail application is rejected.
Order Date :- 30.09.2022 AS Rathore/E-court (Samit Gopal,J.)