K.B.Sharma vs State of U.T.Chandigarh

S.C. Malte, J.

Petitioner seeks anticipatory bail in a case registered under Sections 13(1)(a) (b) (c) (d) and 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 circumstances giving rise to the registration of the case can be briefly summarised as follows :

On 20/21.11.1997, Income Tax authorities conducted raid on the residential premises of certain persons including one Mr. K.K. Jerath, who was Chief Engineer, Chandigarh Administration. In the course of those raids certain documents including two diaries came to be attached by the Income Tax Department. The Income Tax Department then thought it proper to apprise the Vigilance Cell of Chandigarh Administration regarding the outcome of raids conducted by it. Consequently, the diaries which were seized during raids by the Income Tax Department, were forwarded to the Vigilance Cell of Chandigarh Police. These diaries were thus received by the Vigilance Cell in the first week of January 1998. The contents of these diaries were then got decoded. With the help of information thus collected a First Information Report in respect of the offences mentioned above came to be registered on 3.2.1998. Initially, these were only three accused namely K.K. Jerath (Chief Engineer), Mr. Vashishat (P.A. to Mr. Jerath) and one Hiramani (Peon to Mr. Jerath). Mr. K.K. Jerath had also sought anticipatory bail which was ultimately rejected by this Court and also by the Supreme Court. At later stage, that aspect would also figure while disposing of the present petition.

Further examination of those diaries indicated that while effecting certain purchases for the Department, other persons besides the accused mentioned above, had also pocketed huge amount of secret commission. The diaries also brought to light the middlemen who had acted as conduits for passing such money. They are Suresh Sharma, Dinesh Sharma and Sunil Kalia. Said Sunil Kalia is said to be the author of entries in the diaries. Interrogation of these persons brought to light further information. On interpretation of the entries in the diaries certain names were found to have been mentioned by showing initials only. Briefly stated, the name of the present petitioner Mr. K.B. Sharma also figured as one of the persons who, while functioning as Superintending Engineer at the relevant time, appears to have pocketed secret commission while effecting purchases of stores for the use of Government. The Vigilance Cell of the police, therefore, wants to arrest him for the offences mentioned above.

Apprehending his arrest, the petitioner moved the Special Judge, Chandigarh for the grant of anticipatory bail. The Special Judge, Chandigarh, vide order dated 24.6.1998 rejected the anticipatory bail. Petitioner, thereupon, filed the present petition. During pendency of this petition my learned predecessor had granted ad interim anticipatory bail on condition that petitioner shall join the investigation as and when called by the Investigating Officer. On behalf of the petitioner, it was contended that petitioner had accordingly joined the investigation. This claim is, however, disputed by the State by raising a contention that petitioner has not properly cooperated during his interrogation. At later stage, I will consider this aspect also.

Learned counsel for the petitioner mainly raised five points. It was contended that diaries on which the prosecution placed reliance cannot be considered as books of account and any entry in such diaries cannot be fastened on the petitioner to hold him guilty. The second point raised was that no recovery is to be made by arresting the petitioner. It was further contended that nobody says that the amount has been paid to the petitioner by way of secret commission. It was also contended that role of the petitioner while effecting the purchases is only to consider the quantity to be ordered; and there was material to show that quantity of the stores indented was considerably reduced to the extent of 50 to 70 per cent of the requirement which militates the claim by the prosecution that he was interested in getting secret commission. It was contended that had he been interested in getting the commission, he would not have scaled down the requisitions of stores as put forth by the Executive Engineers. It was further contended that in none of the communications on which the petitioner has signed for getting stores, there is any mention of names of the firms. It was contended that names of the firms is approved by the Government of India as the `Approved Suppliers'' and the petitioner has nothing to do regarding the names of the suppliers. On these grounds it was submitted that there was absolutely no need to detain the petitioner in custody for interrogation. Moreover, according to the learned counsel, the petitioner had joined the investigation but the Investigating Officer declined to issue him a certificate in writing to the effect that petitioner has thus made himself available for interrogation. It was submitted that on finding that the Investigating Officer has declined to give such certificate regarding joining the interrogation, the petitioner was constrained to move the Court of Judicial Magistrate and the Magistrate has also made an observation regarding joining of investigation by the petitioner.

Learned counsel for the State on the other hand submitted that scrutiny of the diaries and decoding of entries have now revealed that petitioner has been shown by name as the person who has received secret commission from the suppliers. It was submitted that in order to have effective interrogation, custody of the petitioner would be necessary. To substantiate that point, the learned counsel for the State relied upon the case of State v. Anil Sharma, 1997 Supreme Court Cases (Cri.) 1039. It was further submitted that the other accused Mr. K.K. Jerath who was involved in this very case had also lost in the High Court and the Supreme Court and consequently, his application for anticipatory bail stood rejected. That case was reported as K.K. Jerath v. Union Territory, Chandigarh and others, 1998 Supreme Court Cases (Cri.) 809. On this premises, it was vehemently contended that position of the present petitioner is not materially different from the position of Mr. Jerath who also (is) one of the coaccused in this very case and is similarly situated. It was further contended that the petitioner has not cooperated properly in the investigation inasmuch as he declined to reply interrogation.

In my opinion, the criteria for grant of anticipatory bail is materially different from the criteria while considering the regular bail after arrest. In order to appreciate this aspect, it would be worthwhile to note the object for which the provision of anticipatory bail under Section 438, Cr.P.C. was introduced. Prior to that there was conflict of judicial opinions about the powers of Court to grant anticipatory bail. It had, however, come to notice that necessity to grant anticipatory bail arose mainly because sometimes influential persons try to implicate their rivals in false cases with a view to disgrace them or for the purpose of some political or oblique motives. It was also noticed that political rivalry has given rise to the tendency of falsely implicating other persons to malign their image. The introduction of Section 438, Cr.P.C., for the grant of anticipatory bail was primarily with that object. In the course of application of that provision the Courts have by various rulings laid down certain principles governing the grant of anticipatory bail. The basic idea, however, was to see that a person is not put behind bars without any justification because such detention in custody adversely affects on the persons which cannot be replenished at any time later. Liberty of persons was valued in the light of Constitutional safeguards and Courts were inclined to grant anticipatory bail in all those cases where there appears that detention of a person is either not justifiable on merits or there is element of some oblique motive for the arrest of a person.

The points raised by learned counsel for the petitioner, as referred above, may be good points for determination of bail at later stage. The question as to the evidentiary weight and value of the diaries in which name of the petitioner figure, is a question to be determined at later stage. Some of the middlemen and author to the said entries in the diaries are also mentioned in the list of accused. It may be noted that one of the accused namely Mr. Sachdeva has become approver as per order dated 2.5.1998 passed by the Chief Judicial Magistrate. It is yet to be ascertained what material would come in the deposition of Mr. Sachdeva as an approver. The prosecution case would also take shape after evidence of the approver. Learned counsel for the State has placed before this Court photo copies of certain entries in which name of the petitioner was mentioned as K.B. Sharma, against which payment of certain amount was shown. I find that these entries would be different from the entries in the diaries in which only initials were given. These entries also pertain to payment of certain amounts to the Superintending Engineer. It was contended by the petitioner that there were two Superintending Engineers and, therefore, reference to Superintending Engineer cannot be said to be to the petitioner. That aspect can be sorted out after further interrogation.

The question regarding the proof of fact that certain amounts were received by way of secret commission would be a matter for appreciation during trial. At present, only question to be considered is whether the petitioner is being taken into custody without any justification. Presently, I find that name of petitioner figures as one of the recipients of commission as indicated in the diaries and account books which came to be recovered during the course of investigation, and it cannot be said that he is sought to be arrested without any basis. It also cannot be said that arrest is motivated by some oblique motive. In the context, it may be recalled that Mr. Jerath who was one of the accused in this very case was denied anticipatory bail by the High Court and by the Supreme Court also. The position of the present petitioner is not different from Mr. Jerath. It was contended by learned counsel for the petitioner that case of Mr. Jerath can be distinguished on the ground that he was being interrogated for ascertaining some hidden assets in the light of huge wealth recovered from him during the Income Tax Department raids in respect of which he was not able to show any legal source of acquisition. I find, that might be one of the objects to take Mr. Jerath into custody. The case of K.K. Jerath v. Union Territory, Chandigarh and others, 1998 SCC (Cri.) 809 indicates that he was also being prosecuted for the offences under Sections 13(1) (a) (b) (c) (d) and Subsection 2 of the Prevention of Corruption Act. It may be noted that the present petition is also being prosecuted under the same Sections. Learned counsel for the State has contended that effective interrogation of the petitioner would be necessary in order to ascertain whether he holds property disproportionate to his known sources of income. Besides that, effective interrogation would also reveal if there are other kickbacks while purchasing the stores for the Government.

It was submitted that effective interrogation could have been done without taking the petitioner into custody. It was submitted that petitioner had made himself available for interrogation on various dates but the Investigating Officer had not cared to put any question, and even declined to issue a certificate for joining the investigation. In that respect my attention was invited to the petition submitted by the petitioner in the Court of Judicial Magistrate. The Magistrate has observed that the contention raised by the petitioner in that petition in respect of cooperation of the petitioner for investigation has not been refuted by the other side and, therefore, should be taken as accepted. On the other hand, an affidavit filed by the Deputy Superintendent of Police, Vigilance Cell, Chandigarh, indicates that petitioner declined to reply the interrogation made to him and even gave in writing thereby implicating three persons responsible for ruining the career of the petitioner. It, therefore, appears that the fact regarding co operation of the petitioner to join investigation is a matter of controversy between the two sides. That aspect, however, loses its bearing in view of reasons for which I am going to pass order in this case. At any rate, I would say in the light of observations made by 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.

In the result, this petition stands dismissed. However, it is directed that the authority arresting the petitioner shall immediately intimate in writing to the near relation of the petitioner, the date and time when the petitioner would be produced before the concerned Magistrate for further remand. The Magistrate while granting either the police custody remand or the judicial custody remand shall ascertain from the petitioner as to whether he has any grievance regarding his physical torture. If it becomes necessary, the Magistrate shall immediately send the petitioner to the nearest hospital/dispensary for his medical examination and treatment. The Magistrate shall also take into consideration the case diary in order to ascertain the necessity and propriety of extending further police remand of the petitioner.