Rakesh Kumar @ Rakesh Kumar Tandon vs State Of U.P. And Another
2023 Latest Caselaw 2145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 13.12.2022
 
Delivered on :20.01.2023
 

 
Court No. - 69
 

 
Case :- APPLICATION U/S 482 No. - 14139 of 2022
 

 
Applicant :- Rakesh Kumar @ Rakesh Kumar Tandon
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pawan Kumar Rao
 
Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav
 

 
Hon'ble Samit Gopal,J.

1. Heard Sri Pawan Kumar Rao, learned counsel for the applicant and Sri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant Rakesh Kumar @ Rakesh Kumar Tandon with the prayer to allow the present application and quash the order dated 26.11.2021 passed by Special Judge Anti-Corruption, C.B.I., Ghaziabad in Special Case No. 29 of 2015 (CBI Vs. Pradeep Shukla and others), under Sections 120-B, 409, 420 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, pending in the court of Special Judge, Prevention of Corruption, CBI, Ghaziabad and with a further prayer to release the passport of the applicant during the pendency of trial with a further prayer to direct the learned court of Special Judge, Prevention of Corruption, CBI, Ghaziabad to release/return the passport of the applicant in his favour in the aforesaid case.

3. The facts in brief in the present case are that a preliminary enquiry was registered by the CBI as PE No. PE-5(A) 2011/SC-II/CBI/New Delhi on 19.11.2021 in compliance of the order dated 15.11.2021 passed by a Division Bench of this Court after which regular First Information Report as FIR No. RC-1(A)/2012-CBI/SC-II/ND against the applicant and other persons was lodged under Sections 120-B, 409, 420 IPC and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, Police Station CBI/SC-III/Delhi, District New Delhi. The said First Information Report was lodged against 12 persons and unknown officials of UPSIC Kanpur, DG (FW), Lucknow and others. The investigation proceeded in which the applicant was also made as an accused. The CBI reached to the conclusion that due to the acts of the accused persons, loss to the tune of Rs. 6.03 crore was caused to the Government Exchequer and corresponding wrongful gain was to the accused persons. Vide order dated 30.09.2016 passed by the Apex Court in Crl. Appeal No. 944 of 2016 (Dr. M.C. Sharma Vs. CBI and another) which was connected with other petitions, it was provided that the appellants therein shall be granted bail subject to the conditions mentioned in the said order. The said order is annexure S.A.1 to the supplementary affidavit dated 18.09.2022 and is extracted hereinbelow:

"Leave granted.

Heard the learned counsel appearing for the parties.

The learned counsel have submitted that it is an admitted fact that the facts narrated in the order dated 14th July, 2016, passed in SLP(Crl.)No.833/2015, and the facts of the present cases are quite similar. In the circumstances, we pass the following order :

i) Such of the appellants as have not already furnished bail bonds to the satisfaction of the trial courts concerned shall do so within a period of two weeks from today in which event the protection against arrest shall continue but only subject to their furnishing such bonds.

ii) Wherever there is an allegation that the concerned accused has caused unlawful loss to the State, the amount of alleged loss, which has been mentioned in the charge-sheet, shall be deposited with the Court of Special Judge, Anti-Corruption, C.B.I., Ghaziabad, Uttar Pradesh, by the accused within four weeks from today. If in a particular case, the accused are more, the loss alleged to have been caused wrongfully to the State Government shall be recovered proportionately from each accused.

iii) Liberty is reserved to the CBI to move the trial court concerned in case the amount already deposited by the appellants does not match the amount on a proportionate basis that should be recovered from them having regard to the loss caused to the Government or the amount alleged to have been misappropriated or wrongfully paid/received. Should the appellant(s) fail to deposit any such further amount directed by the trial court, the bail order granted in his/her favour shall stand cancelled without any further reference to this Court.

iv) The trial court(s) shall be free to direct deposit of Passports by the accused persons in such of the cases as it may consider just and proper.

v) The appellants shall not tamper with the evidence in any manner whatsoever and if they do so, the Court shall be free to cancel the bail granted to the accused persons.

vi) The amount deposited by the appellants shall be remitted by the trial court(s) to the State Government, Department of Health & Family Welfare, for utilisation in the ongoing NRHM Scheme.

vii) The trial court(s) shall endeavour to expedite the trial and shall be free to pass appropriate order(s) against the appellants including an order withdrawing the concession of bail granted to them or any of them, if the accused do not cooperate or otherwise resort to dilatory tactics.

The appeals are disposed of as allowed with the above directions. We make it clear that the amount of deposit made by the appellants in terms of the Court's order shall have no bearing on the legitimacy and/or legality of the prosecution launched by the CBI.

Criminal Appeal No.946/2016 @ SLP(Crl.)No.4044/2016 :

Leave granted.

It has been submitted that Shri Neeraj Verma, the husband of the appellant, Mrs. Shubhangi Verma, who is a partner in a firm, was the petitioner in SLP(Crl.)No. 3362/2015, and he has deposited Rs.9,77,518/- (Rupees Nine Lakhs Seventy Seven Thousand and Five Hundred Eighteen only) before the Special Judge, Anti-Corruption, C.B.I.,

Ghaziabad, Uttar Pradesh. In view of the said fact, if the amount has in fact been paid, the present appellant, Mrs. Shubhangi Verma, shall be enlarged on bail in Special Case No.29/2014 on the conditions on which Shri Neeraj Verma has been enlarged on bail. The appeal is disposed of as allowed.

Needless to say that it would be open to the appellant to file an application for discharge, if she thinks it proper and if such an application is made that shall be decided in accordance with law."

4. In compliance of the order of the Apex Court, the applicant appeared before the Special Judge, Anti Corruption, CBI, Ghaziabad and vide order dated 14.10.2016 was granted bail on personal bond of Rs. 1 lakh and two sureties each like amount with an undertaking that he shall not tamper with the evidence and further he shall deposit his passport in the court within four weeks and also that he shall obey the orders of the Apex Court. The said order dated 14.10.2016 is annexure 2 to the affidavit in support of the 482 application.

5. The applicant then filed an application dated 14.09.2021 before the trial court with the prayer that his passport be released/returned permanently or temporarily for a period of six months so that he may visit abroad and manage his business and family relations. The said application is annexure 4 to the affidavit. The same was marked as application No. 371-kha to the trial court records. Vide order dated 26.11.2021 which is annexure 5 to the affidavit the said application was rejected by the trial court. The said order is impugned herein. The present petition thus has been filed with the aforesaid prayers.

6. Learned counsel for the applicant argued that the applicant is a businessman and he needs to travel abroad for business purposes. It is argued that the dispute in the present matter is purely civil in nature. The applicant has a daughter who is permanently settled in USA having a citizenship of the said country and as such he wants to meet his daughter and her family. He also wants to visit abroad with regards to his business. It is further argued that the applicant is aged about 69 years and his wife is seriously ill and the applicant wants to drop his wife in USA at his daughter's place for getting her medically checked up and for treatment.

7. Learned counsel has placed before the Court a judgment in the case of Suresh Nanda Vs. CBI : 2008 (3) SCC 674 and while placing para 5, 7, 8, 9, 13, 14 and 15 argued that in the said case it has been held that passport of a person cannot be impounded by the Court. It is only under the Passport Act, its impounding can be done. It is argued that as such the passport of the applicant be released and the prayer as prayed for be allowed and the order impugned be set aside.

8. Per contra, learned counsel for the CBI vehemently opposed the prayer and arguments as done. It is argued that the Apex Court has in its order dated 30.09.2016 while disposing of the matter has as a condition no. (iv) directed that the trial courts shall be free to direct deposit of passports by the accused persons in such of cases as it may consider just and proper and as such the trial court in its wisdom has found it to be a fit case for passing a direction directing the applicant to deposit his passport which was one of the conditions for release of the applicant on bail. It is argued that as such the said passport cannot be released as the deposit of the same was a condition imposed while granting bail.

9. Learned counsel has further while rebutting para 15 to 19 of the affidavit in support of 482 application regarding the illness of the wife of the applicant and the business of the applicant while placing para 14 of the counter affidavit has argued that there is no document attached in support of the said submissions. It is argued that the order passed by the trial court is just and proper order. The present matter relates to embezzlement of huge amount of government money. There are good chances of the applicant absconding. The trial is under progress in which the presence of the applicant who is an accused is needed on every date, failing which the applicant may further say that the trial court has proceeded in his absentia and would try to linger it on. The case relates to financial embezzlement and is of economic offence. It is argued that as such the present petition deserves to be dismissed.

10. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant has been granted bail in compliance of the order dated 30.09.2016 by the Apex Court. The trial court while directing granting of bail, ordered the deposit of passport of the applicant for which it was within its jurisdiction and powers. Even the Apex Court had directed the trial court to pass such order which it deemed fit and necessary for it. In so far as the arguments with regards to meeting of the daughter and her family members by the applicant and his wife is concerned, no reason has been shown as to why they cannot come and visit the applicant. In so far as the judgment as relied upon by the learned counsel for the applicant in the case of Suresh Nanda (supra) is concerned, the same is distinguishable on facts as with that of the present case as in the said case, the passport of the accused was impounded and the question there was whether the same can be impounded in other law as impounding of passport is provided in the Special Act. The said case thus stands distinguishable on facts. The deposit of passport was one of the conditions for grant of bail which at that point of time was not objected to by the applicant and was accepted by him for release on bail but now the same is argued to be a condition against law.

11. In view of the facts and circumstances, the directions of the Apex Court, the order dated 14.10.2016, there is no irregularity or illegality committed by the trial court in passing the impugned order dated 26.11.2021. The impugned order is just and proper order. The trial is going on. The presence of the applicant who is an accused in the trial is needed in the trial court. If the applicant goes out of country, it may hamper the proceedings of the trial.

12. In these circumstances, this Court does not find any good ground to interfere in the matter and thus the present application under Section 482 Cr.P.C. is rejected.

Order Date :- 20.01.2023.

M. ARIF

(Samit Gopal,J.)