Siddhartha Behura vs Cbi
2011 Latest Caselaw 6169 Del

*               HIGH COURT OF DELHI : NEW DELHI


+                  BAIL APPL. NO. 1610/2011


                                       Date of Decision : 16.12.2011

SIDDHARTHA BEHURA                                   ...... Petitioner
                     Through: Mr. Aman Lekhi, Sr. Adv. with
                              Mrs.Meenakshi Lekhi, Mr.Pramod
                              Jalan,     Mr.Vedanta    Varma,
                              Mr.Himanshu, Ms.Srishti Saxena,
                              Advocates.
                     Versus

CBI                                              ......       Respondent
                     Through: Mr.Mohan Parasaran, ASG with
                              Ms.Sonia Mathur, Standing Counsel
                              for CBI.
                              Mr.Rajesh Chahal, DSP, CBI in
                              person.

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

V.K. SHALI, J.

1. This order shall dispose off an application filed by the

petitioner, Siddhartha Behura (A-2), the former

Secretary, Department of Telecommunications, for grant

of regular bail in respect of 2G Spectrum Scam cases,

which was registered vide FIR No.RC DAI-2009(A)-0045

by the Central Bureau of Investigation (CBI).

2. Briefly stated, the facts of the case are that on

21.10.2009, Anti Corruption Branch of CBI had registered

the aforesaid FIR on the allegations of criminal

conspiracy and criminal misconduct against the unknown

officials of Department of Telecommunications,

Government of India and some unknown private

persons/companies and others, under Section 120B IPC

read with Section 13(2) & 13(1)(d) of the Prevention of

Corruption Act, 1988 (for short "the Act") in respect of

allotment of Letters of Intent, Unified Access Services

(hereinafter referred to as „UAS‟) Licenses and 2G

Spectrum by the Department of Telecommunications.

CBI had filed the first charge-sheet on 02.04.2011 in the

Court of learned Special Judge, Patiala House Courts,

New Delhi against A.Raja, the then Minister of

Communications and Information Technology (A-1),

Siddhartha Behura, the then Secretary, Telecom (A-2),

R.K.Chandolia (A-3), the then P.S. to the Minister,

Shahid Balwa and Vinod Goenka, Directors, M/s Swan

Telecom Pvt. Ltd. (A-4 and A-5 respectively). M/s Swan

Telecom Pvt. Ltd (A-6), Sanjay Chandra, Managing

Director, M/s Unitech Wireless Tamil Nadu Ltd. (A-7), M/s

Unitech Wireless Tamil Nadu Ltd. (A-8), Gautam Doshi,

Group Managing Director of Reliance, ADA Group (A-9),

Surendra Pipara, Group President of Reliance, Anil

Dhirubhai Ambani Group (A-10), Hari Nair, Sr.Vice

President of Reliance, ADA Group (A-11) and

M/s.Reliance Telecom Ltd. (A-12).

3. A supplementary charge-sheet was filed on 25.04.2011

in the Court of learned Special Judge for offences under

Section 120B IPC read with Section 7/11/12 of the Act

against some additional accused persons in which the

present petitioner was not named. After filing of the

charge-sheet, charges have been framed against all the

accused persons.

4. The charges against the petitioner are essentially three in

nature. The first charge, against the petitioner and other

16 accused persons, including A.Raja(A-1) and

R.K.Chandolia(A-3), is that they all conspired to commit

offences under sections 409/420/468/471 IPC and

section 7 or section 11 read with section 12/13(2) read

with section 13(d) of the Act. The second charge, which

has been framed against the present petitioner, along

with A-1, is for a substantive offence of breach of trust

under section 409 read with section 120B IPC. The third

charge, which is alternatively, framed against the

petitioner and the A-1 is for cheating under section 420

read with section 120B IPC. In the charge-sheet, the

petitioner (A-2) is stated to be core conspirator along

with A-1 and A-3.

5. The case is presently going on, for recording of

prosecution evidence and I have been given to

understand that statements of some of the witnesses

have already been recorded by the prosecution. The

present application for grant of regular bail of the

petitioner was taken up along with the bail applications of

the other five co-accused persons, A-13 to A-19, (except

the companies). Mr.Aman Lekhi, learned senior counsel,

was heard partially along with the other counsel, who

had appeared for that set of accused persons, however,

as the cases of those accused persons were treated as a

separate class in itself on account of two reasons; firstly

that those five accused persons were not public servants

and, secondly, in their case the CBI had not opposed the

grant of bail, therefore, they were heard and disposed of

vide a separate order on 28.11.2011, while as the

present case was segregated to be dealt with separately.

Arguments were heard afresh in the present case after

disposal of the bail applications of the aforesaid five

accused persons and the submissions, which were made

by Mr.Lekhi, learned senior counsel, for grant of bail to

the petitioner, were essentially the following:

(i) The first and the foremost submission, which was made

by Mr.Lekhi, learned senior counsel for the petitioner for

grant of bail to the present petitioner, was that he is to

be treated at par with the other co-accused persons, who

have already been extended the benefit of bail both by

the Supreme Court as well as by this Court. It has been

contended by the learned senior counsel that the FIR is

common, the charges for conspiracy to commit an

offence under section 409/420/468/471 IPC etc. are also

common to all the accused persons. Further, the Apex

Court, while considering the bail applications of the five

co-accused persons, had dealt with the facts of the case

and severity of charges in the light of maximum

punishment imposable as a whole and yet extended the

benefit of grant of bail to the said accused persons by

invoking the principle of presumption of innocence in

their favour. The Apex Court had also observed that the

bail is the rule and the jail an exception. On the basis of

same analogy, this Court has also extended the benefit of

grant of bail to the five accused persons, namely, A-13 to

A-19 (except where accused were companies) on the

same principles without going into the minute dissection

of the order passed by the Apex Court. It was urged by

the learned senior counsel, Mr.Lekhi, that on the principle

of comity and uniformity at the stage of grant of bail, no

distinction could be made to grant the bail to the

petitioner by simply contending that he was a „public

servant‟. It was contended by him that this kind of

distinction between a „private‟ and a „public person‟ is

invidious, which cannot be permitted to be done so as to

deny the benefit of bail. It has been contended by

Mr.Lekhi that Apex Court has not made any distinction of

an accused person being a „public servant‟ or „private

person‟ especially in the light of the fact that the

common charges have been framed against all the 17

accused persons. Extending this argument further, it was

contended by Mr.Lekhi that so far as section 409 IPC is

concerned, a perusal of the said section would show that

it is not only applicable to „public servants‟ alone, but it is

applicable to a banker, merchant or an agent, who need

not be necessarily a „public servant‟. Therefore, this kind

of distinction, which is rather discriminatory, cannot be

permitted to be done by the State and a prosecuting

agency, so as to deny the benefit of grant of bail to the

petitioner. It was contended that so far as the question

of punishment in the case of conspirator as against the

actual perpetrator is concerned, the same is equal and no

distinction can be made, while considering the bail to one

as against the other.

(ii) It was next contended by Mr.Lekhi that a perusal of the

charges, which have been framed against the petitioner,

are that he has been charged for an offence under

section 409 read with section 120B along with A-1 and

alternatively he has been charged for an offence of

section 420 read with 120B IPC. It was contended that

the prosecution itself is not clear as to whether the

petitioner is alleged to have committed the offence of

breach of trust or the offence of cheating. Mr.Lekhi has

stated that, no doubt, the offence under section 409 IPC

carries life imprisonment as against the offence under

section 420 IPC, which carries a maximum sentence of

seven years, but in the event of an accused being

charged alternatively for two offences, the lesser of the

two offences is to be taken for the purpose of imposition

of punishment on him and for this purpose he has relied

upon Babu Ram Vs. Emperor, AIR 1937 ALL. 754 and

Hira Lal Vs. Emperor, AIR 1917 ALL. 29.

(iii) It was next contended by Mr.Lekhi, learned senior

counsel, that so far as the petitioner is concerned there

are no allegations of having taken illegal gratification or

obtaining any valuable consideration or committing

abetment of these two offences, which may be

punishable under sections 7 or 11 of the „Act‟. It is also

stated that so far as the petitioner is concerned, there is

no allegation that he had any role in the alleged giving or

taking of the bribe of `200 crores nor has he benefited in

any manner whatsoever from the allocation of 2G

Spectrum or Unified Access License. It is urged that all

that the petitioner had done was to implement the policy,

which was framed much prior to his transfer in the

Department of Telecommunications on 01.01.2008. In

this regard, the learned senior counsel has drawn the

attention of the Court to certain correspondence, which

had taken place between the officials of the Government,

prior to 01.01.2008 in order to show so far as the

petitioner is concerned, he has absolutely no role to play

in the question of formulation of policy of first cum first

serve basis and was only implementing the same in

terms of the directions of the Department.

(iv) Next, it was contended by Mr.Lekhi, that the petitioner

has already been in custody for almost 10 months and,

thus, being incarcerated for the longest period and the

fact he is not an influential person or has no political

influence or clout, to influence the witnesses, he may not

be denied the benefit of bail as has been extended to

other persons, as the trial is going to last for quite some

time. It is also contended that he has roots in the society

and, therefore, he is not likely to flee from the processes

of law and since the charge-sheet has already been filed,

the evidence is already underway, no useful purpose

would be served by keeping the petitioner incarcerated

and, therefore, it was prayed that he may be extended

the benefit of grant of bail.

(v) Lastly, it was contended by Mr.Lekhi that most of the

evidence against the petitioner, as in the case of other

co-accused persons is documentary in nature and

whatever evidence is in the shape of an oral evidence it

will only support the defence of the petitioner and he

would like the witnesses to testify on the same line on

which their statements, under section 161 Cr.P.C., have

been recorded. Thus, in totality of circumstances, the

learned counsel has prayed for grant of bail to the

petitioner.

6. As against this, Mr.Mohan Parasaran, learned Additional

Solicitor General, has vehemently opposed the grant of

bail to the petitioner. He has contended that so far as the

petitioner is concerned, his case cannot be clubbed to

that of the 10 accused persons, who have been extended

the benefit of bail either by Supreme Court or by this

Court. It is urged by him that none of the persons, who

were extended the benefit of bail is a „public servant‟

while as the petitioner admittedly was working as

Secretary to the Department of Telecommunications and,

thus, was a „public servant‟ and in that capacity, he was

expected to maintain a high standard of probity, which

he failed to maintain and this has caused wrongful loss to

the exchequer, although it may not have caused wrongful

gain to the petitioner. So far as the question of fleeing

from the processes of law or possibility of tampering with

the witnesses is concerned, the learned ASG actually did

not make any forceful submission, in this regard, except

that the petitioner may influence the witnesses, if he is

released on bail so far as the official witnesses are

concerned, whose statements have been recorded under

section 161 Cr.P.C. It was also contended by the learned

Additional Solicitor General that the petitioner‟s case is

distinguishable from that of the other 10 accused

persons, therefore, he cannot be extended the benefit of

bail.

7. I have carefully considered the respective submissions

and gone through the judgments cited by the learned

counsel for the petitioner as well as the statements of the

witnesses.

8. Without referring to any specific judgment, which has

been pronounced by the Apex Court from time to time

including the latest in the case of Sanjay Chandra Vs. CBI

in Crl.Appeal No.2178/2011, there is no denial of the fact

that the grant of bail in non-bailable cases is a matter of

discretion with the Courts, which has to be exercised

judicially by the Court and for exercise of the said

discretion, the following factors (some of which may

seem overlapping) have to be taken into consideration:

(i) the nature of the allegations and the kind of evidence

which has been gathered by the prosecution; (ii) the

maximum punishment, which the offence carries, which

the accused may be liable to be visited, if he is

convicted; (iii) the nature of the gravity of the offence,

the circumstance in which the offence is purported to be

committed; (iv) the position and the status of the

accused with reference to the victim; (v) the reasonable

possibility of the accused being secured at the trial and

any likelihood of his tampering with the evidence, which

will also depend on the nature of the evidence whether

documentary or oral; and (vi) larger interests of the

society or the State and similar other circumstances

depending on the facts and peculiarity of each case.

9. No doubt, on the top of all these, two important

considerations, which have to be borne in mind by the

Court is that there is a presumption of innocence in

favour of the accused and the Court has also to be

cognizant of the fact that the bail is the rule and jail is

the exception, in as much as, the denial of bail impairs

the personal liberty of the accused.

10. Keeping in view the aforesaid broad parameters, I intend

to deal with the submissions, which have been raised by

the learned senior counsel for the petitioner for the grant

of bail.

11. The first and foremost submission, which has been made

by Mr.Lekhi is the question of parity, which has been

opposed by the learned Additional Solicitor General. If

one goes through the order of the Apex Court, no doubt,

it has granted the bail to five accused persons despite

the fact that it had taken note of the overall charges,

which were framed against the accused persons,

including that of criminal conspiracy to commit an

offence of breach of trust or cheating by observing that

admittedly if the offence, which is alleged to have been

committed by the said accused persons, if proved, then it

is of a serious enormity, having the potential to disturb

the economy of the country and yet it granted the bail to

the said accused persons it could not be said that the

observations passed by the Apex Court in the said order,

ipso facto, without any application of mind must be

applied to the case of the present petitioner whose case

is stated to be distinguishable by the learned ASG on the

sole ground of being a „public servant‟. I do not agree

with Mr.Lekhi that simply on the ground of parity either

of the Apex Court or that of the order passed by this

Court, the petitioner deserves to be extended the benefit

of bail automatically. If that be the intention of the Apex

Court, then the Apex Court itself would have made an

observation in this regard and this Court would have, had

no difficulty in granting bail to the present petitioner. I,

therefore, feel that merely on the principle of parity, the

petitioner is not entitled to the grant of bail. Apart from

this, there is a subtle difference between the set of

cases, who have been released on bail and the present

accused. No doubt, the present petitioner, along with

sixteen others, has been charged in common for criminal

conspiracy to commit the offence of breach of trust,

cheating, forging a document and using forged document

as genuine, etc. but the petitioner has been separately

and substantively charged along with A-1 for an offence

under section 409 for breach of trust by a „public servant‟

read with section 120B and alternatively under section

420 for cheating read with section 120B IPC along with

the principal accused, A-1.

12. The question, therefore, would arise, what is the

distinguishable feature, which makes the case of the

petitioner different than the one of the ten co-accused

persons, who have been extended the benefit of bail by

the Courts. In this regard, I feel that the petitioner being

a „public servant‟ was under a higher degree of probity

and duty as he was holder of a public trust and,

therefore, he was expected to discharge his duties with a

more sense of responsibility, transparency and integrity.

It may be pertinent here to mention that the offence of

breach of trust is a highly aggravated form of breach of

trust, which carries maximum punishment of life

imprisonment.

13. I am cognizant of the fact that the Apex Court has

repeatedly pointed out that while considering the bail

application of any accused person, the Court should

refrain from analyzing the evidence gathered by the

investigating agency minutely but, at the same time, it

has also been observed that some kind of birds eye view

of the evidence for the purpose of assessing the role of

the accused person in a given case is inevitable.

14. Seen, in the light of these, observations, if one analyses

the role of the petitioner, who was admittedly a public

servant it was expected to be of him that he would act as

a rudder of a plane. If A-1 can be said to be a kingpin or

a pivot of the alleged conspiracy to commit the offence of

breach of trust and cheating then certainly the role of the

petitioner/A-2 and that of A-3, the other co-accused, has

been that of a propeller of giving effect to the said idea of

committing the offence of breach of trust or cheating so

far as the allocation of 2G Spectrum or Unified Access

Services is concerned. Prima facie, there is ample

evidence, in this regard, that the three persons, namely,

A-1, the petitioner/A-2, and A-3 have been the core of

the conspiracy in implementation of the policy of first

come and first basis in a distorted manner so as to cause

benefit to specific parties. In this regard, I have gone

through the statements of Sh.A.K.Srivastava/PW-1, DDG

(Access Service); Sh.Nitin Jain/PW-2, DDG (Data

Services); Sh.R.K.Gupta/PW-3, the then ADG (AS);

Sh.R.P.Agarwal/PW-20, the then Wireless Adviser, Deptt.

of Telecommunications; Sh.R.J.S.Kushwaha/PW-21,

JWA(Licensing); Sh.B.B.Singh/PW-26, the then DDG

(LF); Mr.Nripendra Mishra/PW-30, the then Chairman,

TRAI; and Sh.P.K.Mittal/PW-50, the then DDG (AS-II)

and one thing, which emerges from their statements, is

very clear that the petitioner has been a perpetrator of

the illegal design of A-1 and, therefore, his role was

distinguishable from the ten accused persons, who have

been granted the bail and were beneficiary of that illegal

act.

15. Another aspect, which is very interesting, in this case, is

the fact that it has come in the statements of some of

the witnesses that when this illegal and nefarious

conspiracy of causing wrongful gain to certain private

parties was being executed by A-1 with the help of co-

accused A-2 and A-3, who were the two public servants,

two employees of Department of Telecommunications,

who had withstood like a rock and did not accede to the

wishes of these core conspirators, it was the present

petitioner, who was instrumental in getting them firstly

transferred from the Department in order to remove the

obstruction and to implement the illegal design of the 2G

Spectrum being allocated to private persons and Unified

Access Services allocated for ulterior considerations.

16. Mr.Lekhi has tried to urge this point that although these

two public persons were transferred to North East Region

of the Department of Telecommunications, but it was at

the instance of the present petitioner, who was the Head

of Department of Telecommunications, that they were

transferred back to Delhi in a different section. I feel this

is only an argument, which is being taken advantage of

by the learned senior counsel out of desperation on

account of the fact that there is no denial of the fact that

the transfer of these two persons from the Department to

North Eastern Region, who were posing stringent threat

to the illegal design and execution thereof by A-1 with

the help of A-2 and A-3 that they were firstly shifted out

from the Department and in order to placate their ruffled

egos and that of other officials of the Department they

were brought back to Delhi but in a different

Department, so that while remaining in Delhi their

goodwill is generated yet they could not offer any

resistance to the illegal design of the petitioner.

Therefore, I do not feel that the case of the petitioner

cannot, ipso facto, be treated at par with that of the

accused persons and he can be extended the benefit of

grant of bail on the principle of parity.

16A. I do not agree with the contention of Mr.Lekhi for parity

on the question of sentence also. In law, though the

argument of the learned senior counsel may seem to be

very attractive that the conspirator is entitled to the

same punishment to which the principal perpetrator may

be entitled but while considering the exercise of

discretion of grant of bail, the Courts do make a

distinction between the perpetrator of a crime and an

accessory though both the perpetrator and the accessory

are qua each other accomplices. To illustrate this, in a

case of murder, if there are four or five persons, who

may have conspired together by different means; one

devising the conspiracy, second procuring arms, third

providing the logistic support, fourth providing escape

route while the fifth actually firing the shot, which has

culminated into the death of the victim certainly the case

of the actual perpetrator and the kingpin of the

conspiracy, who has fired the shot will be distinguishable

as compared to the other four accused persons and he

may be denied the benefit of bail as compared to the

others, who are only simply accessories. Therefore, this

distinction of all the persons being responsible for the

same punishment is in my view is not tenable because

admittedly the role of the petitioner is that of a core

group consisting of A-1 to A-3 as well as who are the

actual perpetrators, while as the remaining persons were

only accessories in the same, whose cases are

distinguishable.

17. Two things are very important to mention here that

offence of breach of trust of public servant carries a

maximum of life sentence and so far as the offence under

section 420 IPC is concerned that carries a maximum

sentence of seven years. It is correct that the learned

senior counsel has cited two judgments of Allahabad High

Court, where in a case, where alternative charge has

been framed against a person there are observations to

the effect that the lesser of the punishment may be

imposed on the petitioner but that is only a consideration

at the time when the guilt of the accused is said to have

been proved and that may not be a very relevant factor

at the time when the question of consideration of bail is

being examined by the Court, therefore, I do not attach

too much of credence to the two judgments which have

been relied upon by the learned senior counsel, in this

regard.

18. Therefore, in the light of above facts, the severity of

allegations and evidence, which have been gathered by

the present petitioner is enormous, which will fully show

that his role was completely entrenched in the entire

conspiracy as well as the substantive offence, i.e., breach

of trust by a public servant, which makes his case

completely distinguishable from that of other co-accused

persons.

19. The next argument, which Mr.Lekhi had vehemently

urged, is that in the entire charge sheet there is no

allegation that the petitioner had taken illegal

gratification nor it is the case of the prosecution that the

petitioner had amassed any personal wealth

disproportionate of his known sources of income and,

therefore, he is being made only a scapegoat, being the

Head of the Department of Telecommunications.

20. I do not agree with this contention of the learned counsel

for the petitioner. Though, apparently, there is no

personal gain to the petitioner but that question will be

unfolded during the course of trial. In any case, in a case

of breach of trust, the personal gain is totally irrelevant.

What is required in proving, prima facie, the allegation,

under section 409 of the IPC is that a person must have

a dishonest intention. Section 24 of the Indian Penal

Code defines the word „dishonest‟. A thing is said to be

done by a person dishonestly, if it results in wrongful

gain to himself or causes wrongful loss to the other

person, therefore, it is not necessary that there must be

a wrongful gain to the delinquent or the accused person.

It is sufficient in law, if an accused has caused wrongful

loss to the complainant. This is precisely the case in

hand. The petitioner may not have gained out of the

entire transaction but he has certainly caused a wrongful

loss to the public exchequer and if one goes by the

allegations in the charges then this wrongful loss to the

exchequer is allegedly to the tune of `7105 cores though

that figure is also debatable regarding the actual loss

having been suffered by the exchequer. Accordingly, this

contention of Mr.Lekhi is also without any merit although

on the face of it seems to be very attractive.

21. In the light of the aforesaid facts, the very first

parameter, which is important for grant of bail, namely,

the severity of accusation and the prima facie evidence

gathered by the prosecution and the quantum of

sentence which it carries, the petitioner does not deserve

the grant of the discretion of bail. Further, the case of

the petitioner is distinguishable from the facts of the ten

co-accused persons, who have been extended the benefit

of bail by the Apex Court and as well as by this Court

because they were not public servants, while as the

petitioner was a „public servant‟, thus, expected to meet

a higher standard, probity, transparency and

trustworthiness in discharge of his duties, which he was

holding as a public trust.

22. The next question, which arises, is as to whether the

petitioner would be available to face the trial or flee from

the processes of law. In this regard, it must be admitted

that neither there has been any opposition or contention

raised by the learned ASG that the petitioner, if he is

enlarged on bail, will flee from the processes of law,

therefore, even otherwise, the petitioner being a member

of Indian Administrative Service and having settled

permanently in and around Delhi, I do not feel that there

was any apprehension expressed by the prosecution or

any reason to doubt that he would flee from the

processes of law.

23. A connected point, which arises for consideration, is as to

whether, if the petitioner is released on bail whether

there is any likelihood of his tampering with the evidence

or create conditions, which are not conducive to the fair

trial. In this regard, the contention of Mr.Lekhi has been

that out of all the accused persons, the petitioner is the

most low profile, poorly placed, without any influence

and he hardly has any capacity to influence the witnesses

and, therefore, this may not be a ground for denial of

benefit to the petitioner. Mr.Mohan Parasaran, learned

ASG, also did not raise any serious contention that if the

petitioner is enlarged on bail then it may create a threat

to the holding of a fair trial or that he may influence the

witnesses.

24. Although, there has been no real challenge raised by the

prosecution, in this regard, and the fact remains that

apparently the petitioner is not a very high profile

accused as the others, who have been enlarged on bail,

but the submission of the learned counsel that the

petitioner is having no potential to influence the

witnesses cannot be accepted blindly on its face value.

The petitioner has been a member of elite bureaucracy.

All the witnesses, whose statements have been recorded

by the prosecution, no doubt, have to prove documents

but, at the same time, they have also orally testified

against the petitioner, which implicates him in the crime.

25. In this regard, one is also tempted to refer to the fact

that the petitioner had proximity with A-1 and this has

also come by way of oral evidence in as much as the

petitioner was posted as an Additional Secretary in the

Department of Environment, when his mentor, A-1, was

posted there as a Minister. Similarly, the factum of the

oral orders, having been issued from time to time so as

to permit the A-1, the main conspirator, to have a free

hand in the execution of his illegal design, have been

issued by the present petitioner, like fixation of four

counters so as to defeat the policy of "first cum first

serve" and implement it in a manner so as to benefit

certain pre-determined parties or that the officials of the

Department of Telecommunications, who is transferred

out of the Department on the oral orders of the

Secretary, DoT, clearly shows that there is a likelihood

that in case the petitioner is released on bail he will try

his best to subvert the trial by influencing the witnesses,

who have testified against him especially to the extent to

which their statements against the petitioner are oral. I,

therefore, feel this is a ground, which goes against the

petitioner.

26. The last but not the least, the learned senior counsel for

the petitioner has pressed the medical reason of his wife

as the ground for grant of bail. No doubt, the petitioner‟s

wife has been suffering from a dreaded disease but it is

not of such a nature, at this stage, which would

immediately move the Court to release the petitioner on

interim bail even at this stage because she seems to

have already undergone the surgical intervention or

presently, she is taking the Chemotherapy treatment. I,

therefore, for the present, consider it to be, not a ground

so pressing, so as to warrant the grant of interim bail to

the petitioner, at this stage.

27. In view of the aforesaid observation, I feel the following

facts emerge very prominently in order to deny the

benefit of bail to the petitioner:

(I) That the petitioner cannot claim the benefit of

parity with the other co-accused persons merely

without any application of mind by the Court in as

much as the role of the petitioner as a „public

servant‟ was expected to be different than the

other accused persons. A public servant was under

a greater obligation to discharge his functions as a

holder of public trust with transparency, probity

and to watch the interests of the public exchequer,

which he failed to do.

(II) That, the allegations against the petitioner and the

nature of evidence, which has been gathered

against him, is very serious and if proved, it will

entail life imprisonment for an offence under

section 409 IPC.

(III) That, no doubt, merely because Doctrine of

Presumption of Innocence is in favour of the

petitioner and grant of bail is the rule and the

denial being an exception, it cannot be said that

the petitioner‟s role in the entire gamut of facts can

be overlooked, keeping in view the severity of

charges, the quantum of punishment so as to

defeat the larger public interests. Admittedly, this

is a case, where it impinges the personal liberty of

the petitioner but it has been taken away with due

processes of law.

(IV) That, there is no threat of the petitioner fleeing

from the processes of law but certainly there is a

reasonable apprehension or likelihood of the

petitioner influencing the witnesses especially of

the Department of Telecommunications, as he has

been a member of an elite bureaucracy for such a

long time that their influence is of a pervasive,

even though he may not be a high profile accused.

(V) That, the petitioner was one of the main

perpetrators of the entire commission of offence,

along with A-1 and A-3, being the „public servant‟

and, therefore, constituting the core of the

conspiracy, who have to be dealt with differently in

comparison to the other accused persons.

28. For the reasons mentioned above, I dismiss the bail

application of the petitioner.

29. Expression of any opinion, hereinabove, may not be

treated as an expression on the merits of the case as

these are the tentative view formed only for the purpose

of deciding the present bail application.

30. Dasti to the counsel for the parties.

V.K. SHALI, J.

DECEMBER 16, 2011 SS