Gauhati High Court
Vijay Kumar Upadhyaya vs The Central Bureau Of Investigation ... on 13 June, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
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GAHC010098752022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1137/2022
VIJAY KUMAR UPADHYAYA
S/O BAHGAWATI PRASAD UPADHYAYA, R/O 469A, RAILWAY OFFICERS
COLONY, NAMBARI, MALIGAON, GUWAHATI-781011, P.O. AND P.S.-
JALUKBARI, DIST- KAMRUP(M) (ASSAM)
VERSUS
THE CENTRAL BUREAU OF INVESTIGATION (CBI)
REPRESENTED BY THE STANDING COUNSEL, CBI
Advocate for the Petitioner : MS. D SAIKIA
Advocate for the Respondent : SC, CBI
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
13.06.2022 Heard Mr. K.N. Choudhury, learned Sr. Counsel appearing for the accused applicant as well as Mr. S.C. Keyal, learned Standing Counsel, C.B.I.
2. By this bail application under Section 439 Cr.P.C., the accused-petitioner, namely Vijay Kumar Upadhyaya has prayed for grant of bail in connection with FIR No. RC AC-1 2021 A0011 under Section 120B of the IPC r/w Sections 7/8/12 of the P.C. Act, 1988 (as amended in 2018).
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3. The scanned copy of the case record, as called for, is placed before the Court.
4. The prosecution case, in brief, is that on 14.12.2021, one Vijendra Kumar, Superintendent of Police, Anti-Corruption Unit (I) lodged an F.I.R. on the basis of information received from reliable sources against accused Ranjit Kumar Borah, Chintan Jain, Niraj Kumar and other unknown Public Servants under Section 120B of the IPC read with Sections 7, 8 and 11 of the P.C. Act, 1988 (as amended in 2018). The allegations made against the accused persons pertained to demand and acceptance of bribe in lieu of undue favours and criminal conspiracy. It was alleged, inter-alia, that the incumbent Deputy Chief Electrical Engineer/Coaching, North East Frontier Railway (N.F.R.) hatched a criminal conspiracy with Chintan Jain, Director of M/s Sun Shine Devices Pvt. Ltd., who was also operating the firm, namely M/s Athak Udyog for the purpose of facilitating and extending undue favours in connection with various contracts of the N.F. Railways in lieu of demand and acceptance of illegal gratification being paid by said Chintan Jain. It was further alleged that while being posted as the Deputy Chief Engineer (Construction) in N.F. Railway, the accused, Ranjit Kumar Borah obtained 2 (two) benami flats as illegal gratification from the accused Chintan Jain. On 28.10.2021, said Ranjit Kumar Borah demanded a total bribe of Rs. 2.10 crores from Chintan Jain in lieu of the above two benami properties for extending undue benefits and he also assured Chintan Jain for extending undue benefits in future as well, as he was going to be posted again in the construction division, N.F.R., Maligaon. On 02.12.2021, Chintan Jain agreed to pay an initial instalment of Rs.50,00,000/- out of the total bribe amount of Rs. 2.10 crores to the accused Ranjit Kumar Borah, but later on, expressed his inability to fulfil his commitment for the time being. However, Chintan Jain assured Ranjit Kumar Borah that he would be sending a sum of Rs.5,00,000/- through someone to be handed over to him at Guwahati and that he would also be making a transfer of Rs.5,00,000/- into a bank account, the ATM card of which was already in the possession of Ranjit Kumar Borah. Thereafter, on 04.12.2021 and 05.12.2021, one Niraj Kumar, an employee of Page No.# 3/9 Chintan Jain delivered bribe amounts of Rs.5,00,000/- and Rs.4,00,000/- respectively to Ranjit Kumar Borah. On 10.12.2021, Chintan Jain again informed Ranjit Kumar Borah that he would be sending another amount of Rs.10,00,000/- by 13.12.2021 through said Niraj Kumar. Subsequently, information was received that Niraj Kumar would collect the money from Vijay Kumar Upadhyaya on the morning of 14.12.2021 and deliver the same to Ranjit Kumar Borah on the same day.
5. Based on the above F.I.R., the above noted case was registered and after completion of investigation, the C.B.I. filed a Part Charge-sheet against Ranjit Kumar Borah, Chintan Jain, Niraj Kumar, Vijay Kumar Updhyaya (the present accused applicant) and Nayan Chandra Jain on 10.02.2022 under Section 120B of the IPC read with Sections 7, 8 and 12 of the P.C. Act (as amended in 2018) in the Court of learned Special Judge, C.B.I., Guwahati, Assam keeping further investigation on under Section 173(8) Cr.P.C.
6. Mr. K.N. Choudhury, learned Sr. Counsel appearing for the accused petitioner, submitted that the accused has been in judicial custody for 180 days on vague allegations without proof that some transactions were made through him to the other accused persons. Mr. Choudhury submitted that the present accused had no connection, even remotely, with the alleged benami transactions between accused Ranjit Kumar Borah and Chintan Jain pertaining to delivery of 2(two) flats to the former and later demand of bribe of Rs. 2.10 crores and a mobile phone worth Rs.1,30,000/-. Mr. Choudhury also submitted that similarly the accused had no role to play in accused Niraj Kumar's delivery of bribe amount of Rs.5,00,000/- and Rs. 4,00,000/- to accused Ranjit Kumar Borah on 04.12.2021 and 05.12.2021 respectively. The allegation that has been made that accused Chintan Jain informed accused Ranjit Kumar Borah that the next bribe of Rs.10,00,000/- would be paid by his employee accused Niraj Kumar, after collecting the same from the present accused is a false and fabricated story without supported by any materials. According to Mr. Choudhury, learned Sr. Counsel, on the alleged dates of the incidents, the accused was travelling Page No.# 4/9 out of station and he was not even in town and further, that the confessional statements of accused Niraj Kumar allegedly made before the investigating officer are hit by Section 25 of the Evidence Act. Therefore, Mr. Choudhury submitted that the arrest and detention of the present accused on the basis of inadmissible evidence, oral and documentary, is ex-facie illegal. In support of his submission, Mr. Choudhury relied on the judgments rendered by the Hon'ble Supreme Court in Sanjay Chandra Vs. C.B.I., reported in (2012) 1 SCC 40; P. Chidambaram Vs. C.B.I., reported in (2020) 13 SCC 337 and N. Vijaykumar Vs. State of Tamil Nadu, reported in (2021) 3 SCC 687.
7. Vehemently opposing the bail application, Mr. S.C. Keyal, learned Standing Counsel for the C.B.I. has drawn attention to the averments made in the reply affidavit and submitted, inter-alia, that various telephone calls, whatsapp messages transmitted by the charge-sheeted accused persons go to show the present accused's complicity to the various alleged corrupt transactions and some of those transactions are under further investigation of the C.B.I. in the case. Citing examples, Mr. Keyal submitted that the accused Chintan Jain even facilitated the present accused by depositing the college fee of his daughter in her account maintained in Amity University, Noida and booking 69 air tickets through M/s Joss Air World, Patna, worth Rs.8,01,621/- for his and his family members' personal air trips. Further, Mr. Keyal submitted that in connection with the case some material witnesses with regard to the bribe obtained by the present accused are yet to be examined and crucial documentary evidence is also yet to be collected. Therefore, Mr. Keyal submitted that if the liberty of bail is granted to the accused at the present stage of further investigation into the case, involving huge corruption racket in N.F. Railway project related matters, the entire efforts of the investigating agency (C.B.I.) to unearth the culprits will be hampered. In support of his submission, Mr. Keyal has referred to the statement of one Raj Kumar Manhot, owner of M/s Joss Air World, Patna. Mr. Keyal relevantly informed the Court that sanction for prosecution of the accused persons is received from the competent authority.
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8. I have carefully considered the above submissions made by the learned counsel of both sides. Also perused the citations referred to above and the case record.
9. It may pertinently be pointed out that the corruption matters constitute a class apart and need to be visited with a different approach in the matter of bail. It is a well settled principle that matters in consideration of the bail application in non-bailable offences are such as the nature and seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and other similar considerations.
10. Mr. K.N. Choudhury, learned Sr. Counsel appearing for the accused, has drawn this Court's attention to the various paragraphs of the judgments rendered by the Hon'ble Supreme Court which are extracted below-
11. In Sanjay Chandra (Supra)-
"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. Raneef18 (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 Page No.# 6/9 why he 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."
12. In P. Chidambaram (Supra)-
"31. It is to be pointed out that the respondent -CBI has filed remand applications seeking remand of the appellant on various dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019 etc. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of the learned Single Judge "...that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly......" is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed.
32. The appellant is not a "flight risk" and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of the prosecution that the appellant has influenced the witnesses and there is likelihood of his further influencing the witnesses cannot be the ground to deny bail to the appellant particularly, when there is no such whisper in the six remand applications filed by the prosecution. The charge sheet has been filed against the appellant and other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co-accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail."
13. In N. Vijaykumar (Supra)-
"12. It is equally well settled that mere recovery by itself cannot prove the charge of the Page No.# 7/9 prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 scc 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 scc 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under:
"7............
8.............
9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
14. Now, in the light of the respective stands of both sides and the principles relating to grant of bail set forth by the Hon'ble Apex Court let us examine the case record.
15. A perusal of the allegations made out in the F.I.R. indicated a deep-rooted conspiracy and large-scale corruption indulged in by some of the officials of the N.F. Railway, two private persons and unknown others. Based on the aforesaid allegations, besides registering the instant case, the C.B.I. had interrogated the present accused in their custody for 6(six) days and he has been in judicial custody since 15.12.2021, that is, for 180 days (six months). After undertaking extensive investigation, the C.B.I. laid a Part Charge-sheet on 11.02.2022 under Section 120B of the IPC read with Sections 7, 8 and 12 of the P.C. Act keeping further investigation on under Section 173(8) Cr.P.C. against the present accused and 4(four) others, who are charge-
Page No.# 8/9 sheeted. The grounds for continuing the investigation are cited in Paragraph No. 16.25 of the Charge-sheet which include nonreceipt of the CFSL opinion of the voice samples of the accused; bribe obtained by the accused; investigation on INR Rs.2,12,99,000/- recovered and seized from the residence of the accused; bribery and involvement of Hawala transactions; investigation on ATM card of M/s Biswas Electric Works, Patna etc.
16. It is prima facie revealed that the present accused was posted as Chief Electrical Engineer (Con.), N.F.R. from June 2017 to 14.12.2021 and during this tenure he had dealt with tenders/contracts of M/s Sunshine and in lieu of the undue favour rendered or awarding of contract etc. one of the accused allegedly paid bribe to him by means of electronic transfer etc.
17. Now, as informed by Mr. Keyal, learned Standing Counsel for the C.B.I., the prosecution sanction order is received from the competent authority to prosecute the accused persons. The offences under which the accused has been booked, if convicted would invite punishments, which shall not be less than 3(three) years, but may extend to 7(seven) years and shall also be liable to fine. The entire case, as it appears at present, is based on documentary evidence including electronic documents and partly oral testimony. It is also uncertain as to the time which may likely to be required to complete the further investigation into the aspects mentioned in Paragraph No. 16.25 of the Charge-sheet under Section 173(8) Cr.P.C. On the other hand, as stated above, the accused has been languishing in jail for 180 days, that is, for six months.
18. Further, as per the averments made in the Additional Affidavit supported by documents filed by the accused, he has been sick and under treatment/medication of Guwahati Medical College & Hospital for high blood sugar, cholesterol, triglycerides and hypertension vide the medical/clinical reports.
19. For the above stated reasons, this Court is of the opinion that in the backdrop of facts concerning the present accused and the nature and characters of evidence Page No.# 9/9 collected; the poor state of health of the accused; the length of detention in custody (180 days) and applying the principles laid down by the Hon'ble Apex Court cited above for bail consideration and further, the right vested on an undertrial prisoner under Article 21 of the Constitution of India, this Court is of the opinion that for the purpose of trial of the case and further investigation, continuation of detention of the present accused may not be required.
20. Accordingly, it is provided that the accused petitioner, named above, shall be released on bail of Rs. 1,00,000/- (Rupees One Lakh) with two sureties of like amount to the satisfaction of the learned Special Judge, C.B.I., Guwahati, Assam subject to the following conditions-
i) That the accused/petitioner shall continue to appear before the learned trial Court on all dates to be fixed from the to time till the case is disposed of;
ii) That the accused/petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the investigating officer or the Court;
iii) That the accused/petitioner shall co-operate in further investigation; and
iv) That the accused/petitioner shall not leave the jurisdiction of Guwahati city till completion of further investigation, without prior permission of the learned trial Court.
This disposes of the bail application.
JUDGE Comparing Assistant