Yogendra Nath Pandey vs C.B.I. Anti Corruption Branch ...
2022 Latest Caselaw 144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(A.F.R.)
 
Court No. - 28
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12073 of 2021
 

 
Applicant :- Yogendra Nath Pandey
 
Opposite Party :- C.B.I. Anti Corruption Branch Lucknow
 
Counsel for Applicant :- K. Saran, Amit Kumar Kaushal, Himanshu Suryavanshi
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Himanshu Suryavanshi and Sri Amit Kumar Kaushal, learned counsels appearing on behalf of the applicant as well as Sri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation assisted by Sri Akhilendra Singh, Advocate and also perused the material available on record.

2. The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No. R.C.0062011A0006, under Sections 120-B, 420, 467, 468 and 471 IPC and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, Police Station- CBI, ACB, District- Lucknow, with a prayer to enlarge him on anticipatory bail.

BRIEF FACTS OF THE CASE

3. A coal linkage was granted to M/s Jai Durga Industries, Chandauli in the year 1987. A new coal distribution policy was introduced on 18.10.2007 by the Ministry of Coal, envisaging a new mechanism of coal distribution by way of entering into the Fuel Supply Agreement in compliance with the directions of the Supreme Court in M/s Ashoka Smokeless Vs. Union of India and in connected matters1. As per new policy, the prices were to be fixed by Coal India Limited. Pursuant to the said newly devised system, a Fuel Supply Agreement was entered into between the M/s Jai Durga Industries and the Coal Company.

4. During the course of investigation, it has been found that the coal supplies have been made to M/s. Jai Durga Industries after taking certificate of the operational status from the State Industries Department i.e. District Industries Centre (DIC). After allotment of coal by the concerned coal companies, the coal companies used to write to the units directly for verification and send the copy of the letter to the DICs and the Directorate of Industries. Upon receipt of such letters from the coal companies, the DICs used to verify and send their report directly to the concerned coal companies.

5. It has been alleged that in connivance of unknown officers/officials of DIC, Chandauli and Northern Coal Fields Limited (NCL), Ms. Jai Durga Industries, Chandauli had lifted coal from NCL at an average price of Rs.1700/- per MT during the period of 2010-11 of which the average market price of same grade coal was Rs.4200/- per MT. It has further been alleged that the coal supplied was at the notified price fixed by the Coal India Limited to streamline the rates across the country.

6. As per the charge-sheet submitted by the CBI on 31.05.2012, the co-accused Ramji Singh, the then General Manager of DIC Chandauli and the applicant, who was the Assistant Manager therein, are alleged to have indulged in criminal conspiracy and abused their official position in connivance with Ratan Singh, by issuing forged certificates regarding the existence of unit and its operational status on the basis of which the supplies of coal were made to the alleged companies.

RIVAL CONTENTIONS

7. Sri Himanshu Suryavanshi and Sri Amit Kumar Kaushal, learned counsels appearing for the applicant have stated that the applicant is innocent and has been falsely implicated in the present case. The applicant is just a scapegoat and he was not involved in any illegal activities as alleged against him by the prosecution. The matter is purely civil in nature and the applicant is being harassed by the agency by adding criminal colour to it, thus, no useful purpose would be served by keeping the applicant in custody. There is no apprehension of the applicant fleeing away from the justice or tampering with any evidence which is in the possession of C.B.I. and E.D.

8. Learned counsel for the applicant has also submitted that the applicant is a old aged person and he has had a Cardiac Bypass Surgery on 14.07.2010 and his wife is also suffering from fatal disease of kidney failure. He has further submitted that the charge-sheet has already been filed in the matter way back on 31.05.2012 and the applicant has not misused or abused the interim protection granted to him by various courts since then. Much reliance has been placed on the fact that in the charge-sheet filed by the CBI, no prosecution has been initiated against any of the erring officials of the NCL. The co-accused Ratan Singh, who is the Director of the alleged erring Company, had preferred a Writ Petition bearing No.6314 of 2020 before the High Court of Delhi wherein the High Court directed that his attached property shall be released subject to depositing of Rs.70,25,716.40/- which was the alleged proceeds of the Agreement. Learned counsel has next submitted that the co-accused Ratan Singh had already deposited the said amount before the Registrar General of Delhi High Court in compliance of the order dated 15.10.2020 passed in OC No.1263 of 2020. Learned counsel has next submitted that as the present subject matter pertains to the amount of Rs.70,25,716.40/- which has already been deposited by the co-accused Ratan Singh, no cause of action remains in the subject matter. It has further been submitted that there is no criminal history of the applicant except two cases instituted by the CBI at a time pertaining to the alleged two coal companies, namely, M/s Jai Durga Industries and M/s Drolia Coke Industries Private Limited. It was directed by the High Court to expedite the trial of the case but the same has proceeded in a snail's pace. It has further been argued that no complaint whatsoever has been lodged by the NCL or the Coal India Limited. The provision of Section 438 Cr.P.C. are attracted to the present case. Learned counsel for the applicant has further undertaken that there is no possibility of the applicant fleeing away from the judicial proceedings and in the light of the judgement of the Apex Court in Bhadresh Bipinbhai Sheth Vs. State of Gujarat2 and Siddharth Vs. State of Uttar Pradesh and another3, the applicant may be enlarged on anticipatory bail.

9. Per contra, Sri Anurag Kumar Singh, learned counsel for the CBI assisted by Sri Akhilendra Singh, Advocate has vehemently opposed the anticipatory bail application on the ground that the co-accused Ratan Singh, who is the Director of the alleged Company, with the help of the applicant, who was the Assistant Manager of the DIC, Chandauli, were indulged in diverting the coal at the controlled rate to the black market and extricated undue gain.

10. Learned counsel for the applicant has also relied upon the judgement of the Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)4, wherein it has been held in paras-63, 69 and 75 which read as under:-

"63. Clearly, therefore, where Parliament wished to exclude or restrict the power of courts, under Section 438 of the Code, it did so in categorical terms. Parliament's omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation.

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69. It is important to notice here that there is nothing in the provisions of Section 438 which suggests that Parliament intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. In this context, it is relevant to recollect that the court would avoid imposing restrictions or conditions in a provision in the absence of an apparent or manifest absurdity, flowing from the plain and literal interpretation of the statute (Ref. Chandra Mohan v. State of Uttar Pradesh). In RBI v. Peerless General Finance and Investment Co. Ltd., the relevance of text and context was emphasized in the following terms:

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."

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75. For the above reasons, the answer to the first question in the reference made to this bench is that there is no offence, per se, which stands excluded from the purview of Section 438, except the offences mentioned in Section 438(4). In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. At the same time, if there are indications in any special law or statute, which exclude relief under Section 438(1) they would have to be duly considered. Also, whether anticipatory offences should be granted, in the given facts and circumstances of any case, where the allegations relating to the commission of offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice); likelihood of co-operation or non-co-operation with the investigating agency or police, etc. There can be no inflexible time frame for which an order of anticipatory bail can continue.

11. Learned counsel for the applicant has also placed reliance on para-91.1 of Sushila Aggarwal (Supra) which reads as under:-

91.1. Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time. Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc."

12. On the other hand, Sri Anurag Kumar Singh, learned counsel for the CBI has further placed reliance upon the judgement of Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another5 and has stated that according to the said judgement, the case of the applicant falls in the Category- B and D, hence, the provisions of Section 438 Cr.P.C. do not apply to the present case but he could not dispute the fact that the amount in question has already been deposited by the applicant.

13. Learned counsel on behalf of the applicant has placed much reliance on the order passed by the Apex Court in Miscellaneous Application No.1849 of 2021 passed in SLP (Criminal) No. 5191 of 2021, Satender Kumar Antil Vs. Central Bureau of Investigation and another dated 16.12.2021, wherein it has been clarified by the Apex Court as under:-

"We are also putting a caution that merely by categorizing certain offences as economic offences which may be non-cognizable, it does not mean that a different meaning is to be given to our order."

14. As per the judgment of the Supreme Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat6, it has held that the nature and gravity of the accusation and the exact role of the accused must be properly comprehended, the previous criminal antecedents of the applicant whether he has previously undergone imprisonment on conviction, the possibility of applicant to flee and where the accusation has been made only with the object of injuring or humiliating the applicant by arresting him, are the circumstances that are to be taken into account as per Section 438 Cr.P.C.

15. It was observed by V.R. Krishnaiyer, J. in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh7 that:

"1. ....... The issue of (Bail) is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

.... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Article 21 are the life of that human right."

16. Considering the facts and circumstances of the case and upon hearing the learned counsel for the parties and also perusing all the judgements referred hereinabove, this Court is of the view that since the charge-sheet was filed on 31.05.2012 and the applicant has not misused the liberty granted to him vide various orders, he is entitled to be enlarged on anticipatory bail.

17. In view of the above, the anticipatory bail application of the applicant is allowed. In the event of arrest, let the accused-applicant Yogendra Nath Pandey, be released forthwith in Case Crime No. R.C.0062011A0006, under Sections 120-B, 420, 467, 468 and 471 IPC and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, Police Station- CBI, ACB, District- Lucknow, on bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:-

(i) that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii) that the applicant 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 court or to any police officer or tamper with the evidence;

(iii) that the applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court;

(iv) that the applicant shall not leave India during the pendency of trial without prior permission from the concerned trial Court;

(v) that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant;

(vi) that it is directed that the trial may be concluded in accordance with law expeditiously, preferably, within a period of one year from the date of this order, independently without being prejudiced by any observations made by this court while considering or deciding the present anticipatory bail application of the applicant;

(vii) that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

(viii) that the applicant shall not pressurize/ intimidate the prosecution witness;

(ix) that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

18. In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.

Order Date :- 2.3.2022

Siddhant