R. Vasudevan vs Cbi, New Delhi
2010 Latest Caselaw 165 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPLICATION NO. 2381/2009

                                       Reserved on : 12.01.2010
                                   Date of Decision : 14.01.2010

R. Vasudevan                                    ......Petitioner
                               Through:   Mr. K. K. Sud, Sr. Adv.
                                          with    Mr.Ghanshyam.
                                          Sharma, Adv.

                                Versus

CBI, New Delhi                              ...... Respondent
                               Through:   Ms.    Sonia   Mathur,
                                          Standing   Counsel for
                                          CBI.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                  YES
2.     To be referred to the Reporter or not ?       YES
3.     Whether the judgment should be reported
       in the Digest ?                               YES

V.K. SHALI, J.

1. This is a bail application filed by the petitioner under

Section 439 Cr.P.C. for an offence under Section 120B IPC

and Section 7, 8, 12, 13(2) read with section 13(1)(d) of the

Prevention of Corruption Act, 1988 registered by the

respondent vide case no. 03(A)09-ACU-IX.

2. Briefly stated the facts of the prosecution case are that CBI

had received an information from a reliable source that one

Manoj Kumar Banthia was approached by Ankur Chawla,

Advocate representing a faction of M/s Amar Ujala

Publications who was to get in touch with Sh. R.

Vasudevan, present petitioner Member of Company Law

Board for getting a favourable judgment in the matter of

appointing an independent President of the Amar Ujala

Publication. It was allegedly revealed that a case relating

to Amar Ujala Publication was pending before Mr. R.

Vasudevan, the present petitioner Member of Company Law

Board who had allegedly demanded and agreed to accept

an illegal gratification of Rs. 7,00,000/- from Manoj Kumar

Banthia. It is further alleged that Manoj Kumar Banthia in

turn demanded Rs.10,00,000/- from Ankur Chawla. The

information was that this illegal gratification of

Rs.10,00,000/- will be paid to Manoj who will then pay

Rs.7,00,000/- to the petitioner at his official residence

located at 11, W-Block, HUDCO Place Extension, Andrews

Ganj, New Delhi. On the basis of this information a case

under Section 120-B IPC read with section 7, 8, 12, 13(2)

read with section 13(1)(d) of the Prevention of Corruption

Act, 1988 was registered against petitioner, Manoj Kumar

Banthia, Company Secretary and Ankur Chawla and the

matter was handed over to Sh. Satyender Gossain,

Inspector, ACU (IX) for investigation.

3. On 23rd November, 2009 at about 9.00 PM a CBI team

consisting of Satender Gosain (Inspector), Sudhansu

Shekhar (Inspector) Bhaskar Pratap Singh (Constable),

Virender Singh (Constable) along with two independent

witnesses Sh. Ashok Kumar and Dr. Sudhir Gupta were

organized. The CBI team along with independent

witnesses arrived at HUDCO and took suitable position. At

about 9.40 PM it was seen that a taxi bearing registration

no. DL 1T 6672 black colour ambassador stopped at the

entry of the residential flat leading to the house of the

petitioner. A person of the physical description which was

disclosed in the source information came out of the taxi

who was later on identified as Manoj Kumar Banthia. He

was carrying cash to the house of the petitioner. At about

10.35 PM Manoj Kumar was seen coming out of the house

and going without the paper bag which he was initially

carrying. On being intercepted and inquired about the

paper bag which he was carrying, initially he got perplexed

but on further questioning he revealed that he had left the

paper bag at the residence of the petitioner. Thereafter, a

raid was conducted at the residence of the petitioner and

an amount of Rs.55,00,000/- in cash was recovered from

his residence.

4. In the recovery memo cum seizure memo it has been stated

by Manoj Kumar that the aforesaid money was given to him

by Ankur Chawla. The present petitioner/accused was

arrested and remanded to police custody for a week on the

ground that he will be taken to Chennai for the purpose of

effecting some recovery, however, he was not taken. It is

the case of the respondent that from Chennai a recovery of

approximately Rs.1,21,23,800/- or so was effected in cash

from the number of lockers of the petitioner apart from the

fact that he had number of other bank accounts where 51

lakhs of rupees were found in balance. The present

petitioner was remanded to judicial custody as no further

police remand was sought by the CBI.

5. The petitioner filed an application for grant of bail which

was dismissed by the learned Special Judge/Sessions

Judge vide order dated 4th December, 2009 on the ground

that the case was at the initial stages and further that Rs.

1,21,23,800/- found in four bank lockers of the petitioner.

Apart from that Rs.51,00,000/- was found in 13 accounts

of different banks of Chennai and Delhi. The learned

Special Judge referred to the observations passed by the

Apex Court in Surain Singh Vs. State of Punjab 2009 II

AD (SC) 589 wherein it has been observed that the illegal

gratification is a gigantic problem with the public servants

which is increasing day by day and is corroding the system

like cancer.

6. The petitioner feeling aggrieved has filed the present

application seeking grant of bail to which reply has been

filed by the CBI.

7. I have heard Sh. K. K. Sud the learned senior counsel for

the petitioner as well as Ms. Sonia Mathur on behalf of the

CBI. The contentions of the learned senior counsel for the

petitioner are as under:

a. It was contended by Mr. Sud that admittedly the

petitioner was arrested on 23rd November, 2009 and he was

remanded to police custody for a period of seven days.

After expiry of the said period further police remand was

not sought by the respondent and he was remanded to

judicial custody which is indicative of the fact that the

petitioner was not required for any custodial interrogation.

It was urged that no useful purpose would be served by

keeping the petitioner incarcerated further especially in the

light of the fact that he is a heart patient as he had

undergone bypass surgery. It was also contended that

although the respondent had sought remand of the

petitioner for a period of seven days for the purpose of

taking him to Chennai but without taking the petitioner to

Chennai the respondent have effected the recovery of cash

amounting to Rs. 1,21,23,800/- approximately from the

lockers of the petitioner, and therefore, the present

petitioner is not required for the purpose of any

interrogation.

b. The second contention of the learned senior counsel

is to the effect that the case which has been registered

against the petitioner is under Section 120B IPC, Section 7,

8, 12, 13(2) read with section 13(1)(d) of the PC Act. So far

as the Section 7, 8 & 12 are concerned, it was contended

that they carry a maximum sentence of five years although

it was contended that the offence of abetment will not be

made out against the petitioner. So far as the Section

13(2) of the P.C. Act is concerned, it was contended that

what was invoked by the respondent was Section 13(1)(d)

(ii) of the P.C. Act which makes it a criminal misconduct by

a public servant if he by abusing his position as a public

servant obtains for himself or for any other person any

valuable thing or pecuniary advantage. It was contended

that the offence under Section 13(1)(d)(ii) of the P.C. Act

carries a maximum punishment of seven years. In the light

of these punishments prescribed for the various alleged

offences it was contended that the petitioner at best,

assuming though not admitting that he had committed an

offence of corruption was carrying a maximum sentence of

five years or seven years and therefore in terms of Section

437(1) Cr.P.C. which guidelines are applicable to Section

439 also the petitioner may not be denied bail. The

petitioner has already remained in custody for more than

51 days and no useful purpose would be served by keeping

the petitioner incarcerated.

c. The third argument by the learned Senior Counsel

was to the effect that as on date there is no charge under

Section 13(1)(e) P.C. Act which is registered against the

present petitioner which makes possession of

disproportionate assets to the known sources of income of

the accused, as a criminal offence inviting the harsh

punishment. This submission was urged by the learned

counsel for the petitioner on the ground that the effort of

the respondent is to create a bias in the mind of the Court

qua the present petitioner by alleging that there was a

recovery of Rs.55,00,000/- in cash from the petitioner

from his Delhi residence and a sum of Rs. 1,21,23,800/- by

way of cash from four lockers in Chennai apart other

recoveries. It was contended that as and when the FIR

under Section 13(1)(e) of the Prevention of Corruption Act is

registered the petitioner will be issued a show cause notice

to which he will have time to reply.

d. The fourth submission is that the respondent is

adopting a discriminatory attitude in the investigation of

the matter qua the present petitioner. It is contended that

the respondent are hobnobbing with the co-accused Ankur

Chawla and are trying to obtain evidence from him only

with a view to fix up the present petitioner knowing fully

well that it was Ankur Chawla kingpin who was

representing the group before the present petitioner in the

Company Law Board which is alleged to be requiring a

favourable order from the petitioner. It was contended that

such discriminatory attitude adopted by the CBI cannot be

approved, so as to deprive the benefit of bail being granted

to the petitioner. On the contrary, it was contended that

this is one of the important consideration on the basis of

which the Court must take cognizance and consider it to be

a relevant factor for the purpose of grant of bail to the

present petitioner. The learned senior counsel for the

petitioner in this regard has referred to the observations of

this High Court in case Binoy Jacob Vs. CBI 1993 JCC

131. The learned counsel contended that the petitioner will

abide by all such terms and conditions which the Court

may like to impose for enlargement of the petitioner on the

ground that he has already suffered incarceration for more

than 51 days and he is not likely to flee away from the

processes of law.

8. The learned counsel for CBI Ms. Sonia Mathur has

vehemently contested the grounds urged by the present

petitioner for grant of bail. It was contended that the case

is at the crucial stage, therefore, the petitioner may not be

enlarged on bail. It was contended that the petitioner is an

influential person, and therefore, not only he will run away

from the processes of law but he may even tamper with the

evidence. The learned standing counsel further contended

that so far as the allegation of adopting a discriminatory

attitude qua the present petitioner is concerned, it was

contended that the respondent has not exonerated the

person named as an accused in the FIR but as and when

evidence comes on record against him appropriate action

will be initiated against him.

9. The learned counsel for CBI has contended that no case

under Section 13(1)(e) of the Prevention of Corruption Act

as on date has been registered against the present

petitioner, however, as and when the evidence comes on

record against the present petitioner of the said offences an

appropriate action will be initiated against him. As regards

the petitioner being not medically fit it was contended that

even the perusal of discharge summary and the other

medical papers of the present petitioner indicate that the

petitioner had undergone bypass surgery way back in

2007, and he is being provided with facility of necessary

medical checkup at regular intervals.

10. I have heard the learned counsel for the petitioner as well

as the learned Standing Counsel for CBI on the bail

application. I have also carefully gone through the record.

11. No doubt, the offence of corruption is a serious offence and

has eaten the vitals of our system more so when it is done

by persons who are holding positions of power and

authority. But still the question which needs to be

considered dispassionately and objectively at this stage is

that as to whether in a given case the petitioner who is

alleged to have committed the offence under the Prevention

of Corruption Act deserves to be enlarged on bail or not.

No doubt the grant of bail in a non-bailable offence is a

matter of discretion which the Court has exercised

judicially but at the same time the bail should not be

denied to an accused only as a matter of punishment.

There are two paramount considerations which the Court

has to consider while enlarging the accused on bail. First

as to what is the gravity of the offence and whether the

accused would submit himself to processes of law or not?

Secondly will the grant of bail endanger the fair

investigation or the holding of a fair trial or in other words

will the accused tamper with evidence.

12. Keeping in view the above broad parameters no doubt the

petitioner was arrested on 23rd November, 2009

immediately after the other co-accused Manoj had delivered

a sum of Rs.7,00,000/- and the consequent recovery of

Rs.55 lakhs which included prima facie this amount shows

that the petitioner had been ostensibly misusing his official

position in amassing huge cash/wealth for which he has

not been able to give any plausible explanation weighs

heavily against him. This view further gets fortified by the

huge cash recovery of Rs. 1,21,23,800/- or so from

Chennai but then this ground in itself cannot be ground to

deny the bail because then we will be punishing the

accused even before he has been found guilty.

13. The next question which arises is whether he will subject

himself to processes of law. The learned Standing Counsel

for CBI had raised the question that the petitioner is being

quite influential, and therefore, capable of influencing

witnesses and consequently bail is denied. As against this

the learned senior counsel had referred to the judgment in

case titled Ravi Singhal Vs UOI & Anr. 1993 JCC 306 in

order to urge that a very fact that the petitioner is holding a

very high status in the society or a higher position in itself

is a sure shot consideration to show that the petitioner is

not going to flee from processes of law. He will subject

himself to law as and when called upon.

14. I am of the considered opinion that the petitioner is holding

a high position, or is influential, or is resourceful works as

a double edged weapon which can cut both ways. The

position, the status and the influence of an accused person

can no doubt be a ground for denial of bail in a case where

the apprehension expressed by the investigating agency is

genuine and where there are sufficient prima facie reasons

to believe that he would influence the witnesses or tamper

the evidence to deny the bail to him, but at the same time

such a status, position can also be valid consideration to

show that the accused has roots in the society and is

therefore not going to run away from the processes of law.

He will permit and make himself available during the

course of investigation or the trial as the case may be. In

the instant case the statements of witness have already

been recorded. No doubt, the petitioner was holding a

sensitive and a high position, but I feel that this is a case

where he will not be able to influence the investigation

which is almost already complete. Most of the evidence

against him is in the nature of recoveries and the

documentary evidence regarding the recovery of huge ill

gotten money both from his residence in Delhi as well as

from Chennai which he cannot tamper. Apart from this,

the concern of the investigating agency regarding the

tampering of evidence or influencing the witnesses, can be

taken care of imposing suitable conditions on the accused,

while granting bail. Further nothing precludes the

investigating agency to move an application for cancellation

of the bail of an accused in case it has slightest prima facie

evidence to show that he is influencing or trying to

influence the investigation or the witnesses. Accordingly, I

feel in the instant case since the nature of evidence which

has been collected by the investigating agency is in the

form of huge recovery of unaccounted money in cash both

from the Delhi residence and Chennai residence, apart

from other circumstantial evidence, I feel that the chances

of the petitioner trying to erase the evidence or influence

that witness are remote and if he tries to do the same

investigating agency shall be free to file the application

seeking cancellation of his bail.

15. Another point which arises for consideration is the

discriminatory treatment of the petitioner qua the other co-

accused Ankur Chawla who is named in the FIR. The

Sessions Judge had rejected this plea of the petitioner by

observing that it is not for the Court to say as to when and

which of the accused is to be arrested. This is true that the

investigation is in the exclusive domain of the police or the

investigating agency and ordinarily the Court would not

interfere in the investigation except to the extent what is

permitted under Chapter XII of the CPC. But at the same

time, the High Court cannot ignore the fact, in case the

investigating agency is acting in a discriminatory or

arbitrary manner.

16. Coming back to the facts of the present case the FIR has

been registered against not only the petitioner but also

against the co-accused Manoj who is in custody and one

Ankur Chawla a legal practitioner representing a group of

share holders headed by Atul Maheshwari, who were

litigating for control of management of Amar Ujala

Publication in respect of which a dispute was pending

before the present petitioner. The FIR is against all the

three persons has been registered on the basis of source

information that they were indulging in a conspiracy to

commit an offence under various sections of Prevention of

Corruption Act yet no action has been taken against the

said person by the investigating agency on the ground that

the investigating agency has recorded his statement and as

and when anything incriminating is brought on record he

will be also treated in the same manner in which the

petitioner has been. The court fails of understand as to

what other evidence ought to have been there before any

action could be taken against a co-accused named in the

FIR who had prima facie been responsible for arranging the

funds and actively participating in giving the bribe. The

Santhanam Committee Report which was constituted

almost five decades back had observed that there is no

dearth of people who want to be corrupted and who want to

corrupt. If this cancer of corruption is to be treated and

eliminated, both of them have to be dealt with equally with

a even and heavy hand. That is why the abettor of

prevention of corruption entails punishment of five years

under P.C. Act.

17. In the instant case it seems that colour of dress of the co-

accused has weighed with the investigating agency and it

has for reasons best known to them chosen to record the

statements of the co-accused on couple of occasions who is

bound to feign ignorance and make his statement

exculpating himself. Such an unfair approach does not

befit the premier investigation agency like CBI as it

certainly shows discrimination qua the petitioner. Our

own High Court in Binoy Jacob (supra) case has very

categorically observed that our country is governed by rule

of law which envisages that all persons must be dealt with

the same manner while doing so. The Court has certainly

not only an obligation but also a right to call upon the

investigating agency to explain its actions qua a particular

co-accused and in case any reasonable explanation is not

given it may draw its own conclusion.

18. These observations of our own High Court are important

consideration. In the present case, I feel that the

investigating agency has not adopted a just and fair

approach in treating all the accused persons on a even

pedestal while as the petitioner has been arrested on

23.11.2009 yet no action has been taken against the third

co-accused Ankur Chawla despite the fact that he is

specifically named in the FIR and where in view of the

Court prima facie there is sufficient evidence to show that

he was also a part of the conspiracy not only to commit the

offence but also abettor of the offence. Beyond this the

Court does not want to observe anything and leave the

things to the wisdom of the investigating agency, therefore

Court takes this also a valid consideration to exercise

discretion for grant of bail to the present petitioner.

19. The learned senior counsel for the petitioner at the fag end

had also referred to Section 6A of the Delhi Special Police

Establishment Act which requires obtaining of a sanction

before registration of an FIR against the petitioner being

holder of an office of the rank of the Joint Secretary or

above. It was also urged that before his appointment as a

Member of the Company Law Board a report from Vigilance

as well as IB shows that there is nothing incriminating

against him so far as his integrity is concerned which is

also a ground for bail. I feel that merely because the

petitioner's earlier of criminal misconduct of misusing of

his position and amassing a huge cash, for which he is not

able to give any reasonable explanation till date has gone

un-noticed is not in itself a ground for release of bail.

Similarly the vigilance or the IB reports also do not help

him in any manner. The alleged non-compliance of Section

6A also does not help the petitioner because I agree with

the contention of the learned counsel for the CBI that the

offence of corruption may so sudden that in a given case it

may defeat the ends of justice if one has to obtain the

sanction for registration of the offence.

20. There are two more considerations which weigh with the

Court for enlarging the petitioner on bail. These are firstly

that the petitioner's remand was obtained for seven days

for taking him to Chennai but he was never taken there

after he was remanded to judicial custody. The CBI never

sought any permission to interrogate him, therefore, the

continued incarceration of the petitioner in my view is not

going to serve any purpose except to deny the benefit of bail

to him by way of punishment. Secondly, the petitioner is

admittedly patient who has undergone bypass surgery.

Although no grievance has been raised by the learned

senior counsel for the petitioner regarding the non

availability of medical aid or medical checkup but still the

medical status of the petitioner which has been placed on

record is certainly also a valid consideration that he had

undergone a coronary bypass surgery only in 2007. This

in my view is also a ground to be taken into account.

21. Keeping in view the aforesaid facts and the totality of

circumstances. I feel that this is a fit case where the

petitioner, who is in custody since 23.11.2009, should be

released on bail on furnishing personal bond in the sum of

Rs.50,000/- with two sureties for the like amount to the

satisfaction of the learned Special Judge and subject to the

following conditions:

a. That he shall surrender his passport if not already

seized

b. That he shall not leave the National Capital

Territory of Delhi without the permission of the

Trial Court and in case he is given permission to

leave NCT of Delhi he shall inform the purpose

duration of visit as well the address where he is

going to stay. Further, no permission be given to

visit Chennai till charge sheet is filed.

c. He shall not tamper with the evidence or influence

the witnesses or do any act which will create a

reasonable ground to assume that the petitioner is

trying to create hurdle in the fair investigation or

trial of the case which will entail cancellation of his

bail.

d. The petitioner shall report once in a week at 11.00

A.M. to the Superintendent of Police, Sanjay

Kumar Singh, CBI ACU IX, at CGO Complex, New

Delhi-03 or such other officer as may authorized

by him so as to enable them to question the

petitioner, if so required, till the time his charge

sheet is filed.

22. With these directions, the bail application stands allowed.

However, expression of any opinion hereinbefore may not be

treated as an expression on the merits of the case.

V.K. SHALI, J.

JANUARY 14, 2010 KP