J.C.Gilhotra vs Union Territory, Chandigarh

R.L. Anand, J.

This order of mine shall dispose of bail application filed by Shri J.C. Gilhotra in case F.I.R. No. 1 dated 3.2.1998 registered under Sections 13(1)(a) to (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 read with Sections 406/409/420 and 120B of the Indian Penal Code registered at Police Station Vigilance Cell Chandigarh. The petitioner earlier made an application under Section 438 Cr.P.C. in the court of learned Special Judge, Chandigarh who vide order dated 24.6.1998 dismissed the bail application for the reasons contained in para 8 of the impugned order after considering the submissions raised by the learned counsel for the parties before him as contained in paras No. 6 and 7 of the said order. In order to appreciate contentions and operative order of the learned Special Judge, I consider my duty to incorporate paras No. 6, 7 and 8 of the impugned order in detail as under :

"6. It is also argued by the learned counsel for the accused/applicant that only evidence against the accused/applicant is the diaries which were allegedly recovered from the premises of M/s Sharma Brothers and from the premises of Sunil Kalia. It is argued by the learned counsel that such diaries unless corroborated by other evidence do not have any evidentiary value. To support his contention reliance has also been placed upon ruling of the Hon''ble Delhi High Court reported as L.K. Advani v. C.B.I., 1997(4) R.C.R. (Criminal) 26 . That case was also based on diaries of Jain Brothers. The Hon''ble Delhi High Court held that no primafacie case is made out against the accused only on the basis of such diaries. The accused were accordingly ordered to be discharged. The view of the Hon''ble Delhi High Court was confirmed by the Hon''ble Supreme Court of India in the authority reported as C.B.I. v. V.C. Shukla, 1998 Supreme Court Cases (Criminal) 761. Relying upon these two authorities the learned counsel for the accused/applicant has argued that there is no primafacie case against the accused/applicant and he is entitled to the grant of anticipatory bail.

On the other hand, the learned Public Prosecutor argued that the authorities relied upon by the learned counsel for the accused/applicant are not applicable to the facts of the present case. Law in these authorities was laid down when the challan had been presented before the court and the case came up at the stage of framing of the charges. At that stage the court is required to see whether any primafacie case is made out against the accused or not. In the instant case the prosecution has not collected whole of the evidence which it may collect in the course of investigation. The diaries as stated above are sufficient to put the investigation in motion. It is also argued that on similar allegations, Sunil Kalia, Suresh Sharma and Dinesh Sharma have been arrested where the application for the grant of anticipatory bail was declined by the trial court and was also dismissed by the Hon''ble Court of Punjab and Haryana Chandigarh by His Lordship Hon''ble Mr. Justice R.L. Anand vide order dated 23.2.98 passed in Criminal Misc. No. 3243M of 1998. The view was approved by the Hon''ble Supreme Court of India as well in SLP (Criminal) No. 876 of 1998 decided on 27.3.98 K.K. Jerath v. U.T. Chandigarh. It is further argued that in this case several accused have been arrested. None of them was granted anticipatory bail. None of them has so far been granted regular bail on merits. It is argued by the learned Public Prosecutor that the case of accused/applicant is not different in any way from the other accused, who are in custody. It is also argued that custodial interrogation of the accused is necessary in this case. To support this view reliance has also been placed on the authority of the Hon''ble Supreme Court of India reported as State represented by C.B.I. v. Anil Sharma. In that case anticipatory bail was granted to the accused by the Hon''ble High Court which was cancelled by the Hon''ble Supreme Court on the ground that in case of offence under the Prevention of Corruption Act, custodial interrogation of the accused was necessary.

I have considered the rival contentions and have also gone through the facts and circumstances of the present case. Accused applicant J.C. Gilhotra is charged with grave offence. None of the coaccused has been granted anticipatory bail or regular bail so far. The contention that the diaries do not constitute any evidence stands repelled by the orders of His Lordship Mr. Justice R.L. Anand referred to above which view was approved by the Hon''ble Supreme Court, as well, also keeping in view the authority of Anil Sharma''s case (supra). I am of the view that the custodial interrogation of the accused/applicant is necessary. Hence no ground is made out to grant the anticipatory bail to the accused/applicant. The bail petition merits dismissal and is accordingly dismissed."

The brief allegations of this case are that an Income Tax raid was conducted on 20/21.11.1997 on the premises of M/s Sharma Brothers, Sunil Kalia and Shri K.K. Jerath, the Chief Engineer, U.T. Chandigarh (still absconder) inspite of the fact that bail application of Shri Jerath was dismissed by the trial Court, High Court and even by the Supreme Court. A large amount of cash and jewellery was recovered from the residence of K.K. Jerath and others. During the course of raids, two diaries one from the premises of M/s Sharma Brothers and other from the premises of Sunil Sharma were recovered. A perusal of the above diaries showed that a large amount has been paid to K.K. Jerath and other officers of the Engineering Department as kickbacks. When the diaries were decodified it transpired that a sum of Rs. 52,700/ had been paid to Shri J.C. Gilhotra who at one time was with the Engineering Department, U.T. Chandigarh. Subsequently he was promoted and posted as Chief Engineer, Punjab State Electricity Board, Patiala. Now he has retired from service with effect from 31.3.1998.

This bail application I am disposing with the assistance rendered by Shri H.L. Sibal, Senior Advocate who appeared on behalf of the petitioner and Shri R.S. Rai, standing counsel for U.T. Administration.

While dealing with the case of anticipatory bail, judicial discretion, of course, has to be exercised by the courts dealing with such sensitive matters because liberty of a person is involved while granting or declining the request of bail. The Hon''ble Supreme Court had laid the stress that in what manner a judicial discretion has to be exercised. It should be left to the judicial experience of the particular court whether it is trial court or it is High Court. That is why invoking of Section 438 Cr.P.C. has always been considered as discretion any matter which, of course, would be exercised according to judicial canons. State represented by the C.B.I. v. Anil Sharma, 1997 Supreme Court Cases (Criminal) 1039 is a case where the Hon''ble Supreme Court has bee pleased to lay down certain guidelines when the provisions of Section 438 Cr.P.C. could be exercised for the benefit of the applicants. The Hon''ble Supreme Court took into consideration various factors such as that it should be seen by the courts that granting of bail to a person may not impede investigation because a particular applicant may be wielding considerable influence. The Court further held that the advantage of custodial interrogation is to elicit truth and more useful information and material. Of course, the Hon''ble Supreme Court further stated that the court has to presume that police officers would conduct the custodial interrogation in a responsible manner without using third degree methods. Ultimately the Hon''ble Supreme Court in para 6 of the judgment held as follows :

"Custodial interrogation is qualitatively more elicitationoriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a prearrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person bring subjected to thirddegree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

Out of this very F.I.R. the first person who approached the High Court was Shri K.K. Jerath. Incidently his bail application was declined by this court after taking into consideration all the pros and cons of the case, mainly on the ground that this custodial interrogation is necessary so as to give a reasonable chance to the Investigating Officer in order to know under that circumstances Shri K.K. Jerath accumulated vast resources at his disposal. Shri K.K. Jerath definitely was not satisfied with the order passed by the High Court and he went to the Supreme Court but could not get success. His case is reported as Er. K.K. Jerath v. Union Territory, Chandigarh, 1998(2) R.C.R. (Criminal) 418 . Hon''ble Supreme Court laid down whether custodial interrogation is necessary in public interest and on these lines the bail application was disposed of. I may quote with approval the following observations made by the Hon''ble Supreme Court :

"We may only state in considering a petition for grant of bail necessarily if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. This very aspect has been borne in mind by the High Court."

The other applicant out of this very case Shri K.B. Sharma tried his luck in the High Court and his Lordship Hon''ble Mr. Justice S.C. Malte (since retired) was pleased to dismiss the bail application. The Hon''ble Judge while declining the bail application of Mr. Sharma remarked as follows :

"At any rate, I would say in the light of observations made by the Hon''ble the Supreme Court in the cases of Anil Sharma and K.K. Jerath (supra) that Courts leaned in favour of custodial interrogation in cases where huge public funds were involved. In this case the initial investigation indicated that the amount of commission secretly obtained was to the tune of Rs. 43 lacs. Further investigation is said to have raised that figure to almost the double. Under these circumstances, in my opinion, there is no justification to grant anticipatory bail."

Shri Sharma also went to the Hon''ble Supreme Court against the order of Mr. Justice S.C. Malte and finally the Hon''ble Supreme Court passed the order on 23.3.1998 in Special Leave Petition (Criminal) No. 2520 of 1998 as follows :

"We have heard the learned counsel for the parties and perused the entire materials on record as also the case diary. Our such exercise persuades us to hold that the High Court was fully justified in rejecting the petition filed by the petitioner seeking anticipatory bail. We, however, refrain from detailing the reasons for our such conclusion, lest any prejudice is caused to the petitioner in his defence."

The above quotation of the Hon''ble Supreme Court I have made to get guidance for the disposal of the present application of Shri Gilhotra.

The learned appearing on behalf of the petitioner made rigorous efforts to distinguish the case of his client from his coaccused K.K. Jerath and K.B. Sharma by submitting that since 17.5.1995 Shri K.K. Jerath had withdrawn powers of all the Superintending Engineers regarding making of purchase and the purchases were made by the Purchase Committee. He submitted that the disputed purchases are of the period from September 1995 to November 1996. The petitioner was repatriated to his parent department in February 1998 and he retired from service on 31.3.1998. He left the Union Territory of Chandigarh on 2.6.1997. Learned counsel further submitted that after obtaining the interim order from Hon''ble Mr. Justice B. Rai on 6.7.1998 vide which arrest of the petitioner was stayed, he has joined the investigation. The counsel further submitted that questionnaire was given to the petitioner and he answered in faithful manner and cooperated with the Investigating Agency. In the case of K.B. Sharma, the said gentlemen did not cooperate in the investigation and that fact weighed against Mr. Sharma of which note was taken by Mr. Justice Malte and declined the bail application of Mr. Sharma. The learned counsel stated that in the affidavit given by the Investigating agency before the Special Judge three questions were raised by the Investigating Officer seeking the decline of the bail application of the petitioner under Section 438 Cr.P.C. (1) firms from which accused J.C. Gilhotra and others had taken kickbacks are to be identified, (2) Mode of payment of the kickbacks, and (3) Supply orders against which the accused and others had taken illegal gratifications. Learned counsel submitted that these questions are irrelevant because the petitioner was in no way associated with the purchase because of the withdrawal of the powers with effect from 17.5.1995. The petitioner has also associated in the investigation, has given faithful answers to all the queries and in these circumstances, case of custodial interrogation in the public interest is not made out. The counsel submitted that the conduct of the Investigating Agency with regard to other accused is not encouraging because they falsely involve and apprehend the persons and later on those persons are granted bail under Section 167(2) of the Cr.P.C. due to nonpresentation of the challans. Mr. Sibal even went to this extent that object of the Investigating Agency is only to apprehend the petitioner so as to bring disrepute to him as he is a man who retired with status. The petitioner has to marry his young daughters whose future is likely to jeopardise in case the petitioner is sent behind bar.

On the contrary Shri Rai has vehemently opposed the bail application of the petitioner and submitted that a free and fair opportunity should be given to the Investigating Agency so as to hunt nexus between the petitioner and his coaccused and the person from whom the kickback running into lacs of rupees had been received. Learned counsel submitted that a reading of the entries in the diary clearly indicates that a sum of Rs. 52,700/ has been paid to the present petitioner. There was clear mention in the diary of Mr. Sharma about the payment of this huge amount to the petitioner. If the petitioner had nothing to do with the purchase, why his name figures in the diaries. The State counsel submitted that the case of the petitioner is not distinguishable from his coaccused Shri K.B. Sharma and K.K. Jerath whose bail applications have been declined by the High Court and also by the Supreme Court. Learned Counsel also submitted that the petitioner even does not deserve the discretion of bail especially keeping in view the fact the K.K. Jerath is still evading his arrest inspite of dismissal of his bail application by the apex Court and he has also been declared as Proclaimed Offender.

After considering the rival contentions of the parties, this court is of the opinion that merely consideration are not the steps to be kept in mind while deciding this type of matter. This court at this juncture is supposed to be guided by the allegations and then formulate an opinion whether the custodial interrogation of the petitioner is necessary or not. This court is well aware that the petitioner retired from service in the capacity of Chief Engineer when he was repatriated to the present department. He was holding the post of Superintending Engineer in the Union Territory, Chandigarh irrespective of the fact that the petitioner has retired. His cells, if any, must have not broken with lapse of the time. The case of the petitioner is that there are several persons involved in the entire scandle. Multiple arrests have been made. This Court is well aware that protective interrogation is nothing but a ritual because the person to be interrogated may take into head that he is free to give answers of his own choice and he can defeat the purpose of investigation by giving unclear answers or such type of answers which may not further give tangible progress in the investigation of the case. The public interest of course, is not defined in the Cr.P.C. It will be a question of fact that in each case whether the custodial interrogation of an individual is necessary or not. If the circumstances demand that it will be larger interest of the public and for infusion of confidence in the judicial system, the interrogation of an individual is necessary in custody. The law courts will not impede to frustrate the investigation. It is the primary duty of the Investigating Agency to hunt out the modus operandi in order to find out under what circumstances the offence was committed. As huge public funds are involved in this case and in these circumstances the public interest itself demands that custodial interrogation of the petitioner should be conducted irrespective of the fact that the petitioner earlier got interim orders from the High Court staying his arrest. Such interim stays were even granted to K.K. Jerath and Shri K.B. Sharma and finally it was thought proper by me and Mr. Justice Malte that these persons should be handed over to the police so that their custodial interrogation may bring more facts which may ultimately lead to the proper collection of the evidence on the part of the Investigating Officers. Still this court is of the same view that custodial interrogation of Shri Gilhotra is necessary in public interest. Thus I do not see any merit in this bail application and dismiss the same.

Any thing stated above shall not form an expression of opinion on the merits of the case.