Chattisgarh High Court

Gurjinder Pal Singh (Presently ... vs State Of Chhattisgarh on 12 May, 2022

                                          1

                                                                                AFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR
                               MCRC No. 897 of 2022
      Gurjinder Pal Singh (Presently under suspension) S/o Paramjeet Singh
      Plaha, aged about 51 years, Occupation- Director, State Police
      Academy, Chandkhuri, Raipur, CG - 492 101.
                                                                 ---- Applicant

                                      Versus
      State of Chhattisgarh through SHO Police Station Economic Offences
      Wing, Raipur, Chhattisgarh
                                                           ---- Respondent

For Applicant - Shri Ashutosh Pandey & Shri Himanshu Sinha, Advocates.

For State - Shri Amrito Das, Additional AG

Order on Board by Hon'ble Shri Justice Deepak Kumar Tiwari 12/05/2022

This first application under Section 439 of the Code of Criminal Procedure

has been filed by the applicant who is in custody in connection with Crime

No.22/2021 registered at Police Station - Economic Offences Wing, Raipur, for the

offences punishable under Sections 13 (1)(b) and 13(2) of the Prevention of

Corruption Act, 1988 (hereinafter referred to as special Act) and Sections 201, 467

& 471 IPC.

2. Case of the prosecutoin is that FIR has been registered on 29.06.2021

against the applicant for acquiring disproportionate assets after preliminary enquiry

on 14.06.2021 calculating the income from the salary of the applicant for the check

period from 01.01.1996 to 29.06.2021 to be Rs. 1,75,00,000/- and expenditure as

Rs. 3,55,80,967/-. Different properties suspected to be in the name of family

members and other familier person namely PreetPal Singh Chandok were also

found. After investigation charge sheet was filed against the applicant, his wife,

father and mother and PreetPal Singh Chandok for the offences mentioned above.

The calculation of Disproportionate Assets as contained in the documents filed

along with the charge sheet is as under :

Sl. No. Particulars of Gurjinder    Pal       Amount          Amount         Amount          Amount
        Assets         Singh              (Rs.)           (Rs.)          (Rs.)           (Rs.)

                          Amount                            Shri            Smt.
                            (Rs.)                       Paramjeet       Surinder Kaur,
                                          Smt. Manpreet Singh     Plaha Mother of           Total
                                          Kaur, Wife of Father of
                                          Gurjinder Pal                 Gurjinder Pal
                                          Singh         Gurjinder Pal singh
                                                        singh

     A                  Rs.31588699/- Rs.13441447/- Rs.7726822/-         Rs.15057168/- Rs.67814136/-
         Income
         during     the
         check period

B Expenditure Rs.49389742/- Rs.22787844/- Rs.22554451/- Rs.30315893/- Rs.125047930/-

         during     the
         check period

     C                  Rs.15162193/- Rs.3991792/-        Rs.8118506/-   Rs.11002897/- Rs.38275388/-
             Assets
         during     the
         check period

     D                 Rs.-17801043       Rs.-9346397/-   Rs.-14827629   Rs.-15258725    Rs.-57233794/-
             Savings
         ( A-B)

     E       D A ( D- Rs.-32963236        Rs.-13338189    Rs.-22946135   Rs.-26261622    Rs.-95509182/-
         C) (Assets +
         Expenditure -
         Income (DA)

     F                    185.17%           142.70%         154.75%        172.10%          166.87%
             DA
         percentage
         (
         DA/SAVINGS
         X 100)

3. It has been alleged that total disproportionate property to the tune of

Rs.9,55,09,182/- has been found to be 166.87% excess from the income, which

was not satisfactorily explained. So it is alleged that the family members and

PreetPal Singh Chandok hatched a conspirarcy and abetted such offence by

showing false entries of income acquired by the applicant in an illegal manner.

During search of residence of applicant, some important documents were thrown

away and the D.V.R. of C.C.T.V. installed at the residence were not made

available.

4. The State Government vide its order 04.03.2022 accorded sanction for

prosecution of the applicant under Sections 120-B, 201, 467, 471 of I.P.C. invoking

powers under Section 197 Cr.P.C. & for offence relating to Prevention of Corruption

Act, 1988 (Amended Act, 2018), it was opined that prima facie the charge in regard

to said crime is made out but the applicant being the officer in All India Police

Service, for obtaining sanction a proposal was sent for to the Central Government

for obtaining necessary permission for his prosecution.

5. Counsel for the applicant submits that the applicant is innocent and has

been dragged into absolutely a false case. They submit that this case has been

registered just to harass the applicant; tarnish his image in the society and thereby

damage the dignity and uprightness. They further submit that from the overall

conduct of the Investigating Agency it is palpably clear that it is acting hand in

glove with the highly placed officers of the State by dint of political vendetta. It is

submitted that as per Section 17-A which has been inserted in the special Act of

1988 by way of amendment with effect from 26.7.2018 it is mandatory that no

police officer shall conduct any inquiry or investigation into any offence barring

exception as provided in the proviso, and in the present matter no such previous

approval has been obtained. Applicant has obtained certain information through

Right to Information Act ("RTI" for brevity) and the State Government vide letter

dated 7.10.2021 and the Central Government vide letter dated 12.10.2021

informed the applicant that no such request was received from the State. Counsel

for the applicant further submit that PE was initiated by the State Government

without such approval on 14.6.2021 which was subsequently handed over to the

Investigating Agency on 17.6.2021, and within a very short span of 12 days it stood

concluded without affording any opportunity to explain his income, which is

mandatorily required to attract the offence under Section 13(1)(b) of the Special

Act. They submit that Explanation - 1 mandates that an opportunity must be

provided to the public servant to satisfactorily account for the offence to be

registered under such section for possessing disproportionate assets. They placed

reliance on a judgment in the matter of Charansingh Vs. State of Maharashtra and

Others {SLP (CR) No.6764/2020, decided on 24.3.2021}, in which it has been

observed that during enquiry at pre-regsitration of FIR stage, if the applicant

satisfies on production of the mateirals produced relating to his known sources of

income and the assets, in that case, no FIR will be lodged and if he is not able to

clarify his assets, vis-a-vis, known sources of income, then the FIR will be lodged

and he will be subjected to trial. Therefore, as such, such an enquiry would be to

safefuard his interest also which may avoid further harassment to him. They also

places reliance on a judgment in the matter of Yashwant Sinha Vs. CBI {(2020) 2

SCC 338}, relevant portion of which reads as under:-

"116. In the year 2018, the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as "the 2018 Act", for short) was brought into force on 26-7-2018. Thereunder, Section 17-A, a new section was inserted, which reads as follows:

"17-A. Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties .--(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."

(emphasis supplied)

117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The complaint is dated 4-10-2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:

6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month"."

(emphasis supplied)

6. It is further submitted that charge sheet has been filed on 8.3.2022; that the

applicant is in jail since 11.1.2022 and has completed incarceration of 120 days.

The police has taken remand during invetigation from 12.1.2022 to 18.1.2022, and

further on 18.1.2022 no further custodial interrogation was sought by the SHO and

the applicant was sent to jail on that very day. They further submit that the trial is

likely to take some more time for its disposal and, therefore, no useful purpose

would be served in keeping him in detention any longer. For this, reliance is placed

in the matter of Arnab Manoranjan Goswami Vs. State of Maharashtra and Others

{(2021) 2 SCC 427}. Relevant portion reads as under:-

"70. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is 'bail', not jail. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary'. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system's primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humannes of the justice system." Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard."

7. Counsel for the applicant further submit that no requisite sanction under

Section 19 of the Special Act was obtained from the competent authority and

without due sanction, taking cognizance is bad in law. In this regard, reliance is

placed in the matter of Jaswant Singh v. State of Punjab, {1958 SCR 762 : AIR

1958 SC 124}. Relevant portion reads as under:-

"4. The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; (Basdeo Agarwala v. King-Emperor [(1945) FCR 93, 98] ). The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. King [(1948) LR 75 Indian Appeals 30, 37] the Judicial Committee of the Privy Council also took a similar view when it observed:

"In Their Lordships' view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were plakhed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction."

It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. King [(1949) LR 76 Indian Appeals 158] it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction.

8. On the other hand, learned State Counsel opposes the bail application and

submits that the argument of the applicant that the case against him is based on

political vengeance is without any foundation as the public machinery has

investigated the case on its own merits and found that such a senior officer

indulged in serious crime of corruption and after investigation it was found that his

income was more than 166.87% excess from the income about Rs.9,55,09,182/-.

On the contrary, the applicant himself has committed the serious offences like the

present one and though he has fought many litigations up to the Supreme Court,

yet no protection was given to him. He further submits that Section 17-A of the

Special Act is not attracted to the case in hand as the said provision has been

provided only to protect honest officers who discharge their official functions and

duties with due diligence, fairly and in an unbiased manner. He submits that

amassing wealth is never expected of a public servant in discharge of the official

duty. He further submits that considering the gravity and seriousness of the

allegations against the highly placed police officer like the applicant do not make

him entitled for benefit of bail. He further submits that due sanction was accorded

by the State under Section 197 CrPC and the State Government after due scrutiny

found substance and recommended the proposal to the Central Government which

is in pipeline and so on such score also the applicant is not entitled for bail.

Therefore, the application may be rejected.

9. State Counsel further submits that economic offences have to be taken a class

apart and needs to be visited with different approach. He relied upon the decision

of the Supreme Court in the matter of State of Bihar Vs. Amit Kumar {(2017) 13

SCC 751}. Relevant portion reads as under:-

"13. We are also conscious that if any undeserving candidates are allowed to top exams by corrupt means, not only will the society be deprived of deserving candidates, but it will be unfair for those students who have honestly worked hard for one whole year and are ultimately disentitled to a good rank by fraudulent practices prevalent in those examinations. It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of

bail.[10] Usually socio-economic offence has deep rooted conspiracies affecting the moral fiber of the society and causing irreparable harm, needs to be considered seriously.

14. Further we cannot lose sight of the fact that the investigating agency is going to file additional charge sheet. Therefore, the respondent's presence in the custody may be necessary for further investigation. Furthermore we cannot approve the order of the High Court, in directing the concerned investigating authority to file the charge sheet within a month, as the case involves almost 32 accused and a complex modus operandi.

15. Having bestowed our thoughtful consideration to the gravity of the offence and several other crucial factors which are discussed in detail in preceding paragraphs, we are of the opinion that it is not advisable to release the accused/ respondent on bail at this stage. Accordingly without expressing any opinion on final merits of the case, we set aside the order of the High Court. The appeal stands allowed."

10. Learned State Counsel further submits that there is apprehension of

applicant tampering with evidence, and during investigation one of the witnesses

has been provided police protection and as the applicant is a senior police officer,

he may affect the fair trial. Replying to this argument of the State Counsel, leaned

counsel for the applicant would submit that the applicant is ready and willing to

remain out of Raipur and abide by all the terms and conditions as may be imposed

by this Court.

11. Reliance is placed on the decision of the Apex Court in the matter of

Centrum Financial Services Limited Vs. State of NCT of Delhi & Others {CRA

No.94/2022, decided on 28.1.2022} in which judment in the matter of Masroor

{(2009) 14 SCC 286} has been referred to. Relevant portion reads as under:-

"13..........Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offencel."

12. I have heard learned counsel for the parties at length and perused the record.

13. In the matter of Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3

SCC 598, the following has been held by the Apex Court.

"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

14. Apparently, in this case under Section 19 of the Special Act no proper sanction

has been obtained so far during investigation and before filing of charge-sheet, and

the sanctioning authority of the State has recommended the matter to the Central

Government. Grant of proper sanction by the competent authority is a sine qua

non. It is desirable that question as regards sanction may be determined at an

early stage as laid down in the matter of State of Karnataka through CBI Vs. C.

Nagrajaswami {(2005) 8 SCC 370} where it has been held that grant of proper

sanction by a competent authority is a sine qua non for taking cognizance of the

offence. It is desirable that the question as regards sanction may be determined at

an early stage. In the matter of Prakash Singh Badal and another Vs. State of

Punjab and others {(2007) 1 SCC 1} where it has been held that sanction related

to the offences relatable to the Act there is distinction between the absence of

sanction and alleged invalidity on account of non-applicatin of mind. The former

question can be agitated at the threshold but the latter is a question which has to

be raised during trial.

15. The only apprehension expressed on behalf of the prosecution that the

applicant being a highly placed officer may intimidate or win over the witnesses

and influence them as during investigation one of the witnesses has been granted

police protection, this Court is of the view that on this score alone the bail cannot

be denied to the applicant as the case is based on the documentary evidence.

Secondly, the investigation has been completed; thirdly in the event of such event,

the prosecution can always approach the competent court for cancellation of bail

and State may provide necessary protection after recording reasonable and

satisfctory reasons; fourthly the applicant is a suspended police officer having no

power; fifthly the applicant can be directed not to influence proceedings against

him.

16. Learned counsel for the applicant also gives undertaking that the applicant

shall not stay at Raipur during trial if the State permits the applicant being a

suspended Police Officer, except on the days when he is required to attend the

Court at Raipur. He undertakes that even on such days he shall inform the trial

Court for his journey.

17. So considering these undertakings given on behalf of the applicant, there is

no chance of risk in releasing the applicant on bail. Further, keeping in view that

the charge-sheet has already been filed; conclusion of trial may take some more

time; even the sanction has not been obtained by the Investigating Agency; taking

into consideration the period of detetion which comes to about four months, without

commenting anything on merits of the case, this Court is of the considered opinion

that it is a fit case where the applicant can be released on bail. Accordingly, the

application is allowed. It is directed that the applicant shall be released on bail on

the following terms and conditions:-

 He shall execute a personal bond in sum of Rs.50,000/- with one surety in the like sum to the satisfaction of the trial Court.  He shall appear before the trial Court on each and every date given by the said Court till the disposal of trial.

 He shall, if his headquarter is not fixed by the State at Raipur, shall not stay at Raipur except on the days of the Court proceedings/ depatmental enquiry.  He shall inform to the trial Court in advance in a closed envelope about his stay. The trial Court shall keep the same on record and it may be used if occasion so arises.

 The applicant and his family members shall not alienate/mortgage any immovable property without the permisson of the trial Court.  The applicant shall not give any press interview nor make any public statement in connection with the case.