Homi Rajvansh (Through Alka ... vs Cbi
2011 Latest Caselaw 5402 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     BAIL APPLICATION NO. 1511/2011
                      BAIL APPLICATION NO. 1512/2011

                                         Date of Decision : 09.11.2011

BAIL APPLICATION NO.1511/2011

Homi Rajvansh                                         ...... Petitioner
(Through Alka Rajavansh)
                      Through:                   Mr.Dinesh Mathur and
                                                 Mr.Arun Bhardwaj, Sr.
                                                 Advs. with Mr. Mohit
                                                 Mathur, Adv.

                                        Versus

Central Bureau of Investigation     ......     Respondent
                        Through: Mr.P.K.Sharma,
                                 Standing Counsel for the
                                 CBI

BAIL APPLICATION NO.1512/2011

Homi Rajvansh                        ...... Petitioner
(Through Alka Rajavansh)
                      Through:Mr. Dinesh Mathur and
                               Mr. Arun Bhardwaj, Sr.
                               Advs. with Mr. Mohit
                               Mathur, Adv.
                       Versus

Central Bureau of Investigation     ......     Respondent
                        Through: Mr.P.K.Sharma,
                                 Standing Counsel for the
                                 CBI



Bail Appl. Nos. 1511/2011 & 1512/2011                       Page 1 of 30
 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 order shall dispose of two bail applications filed by

Homi Rajvansh bearing Bail Application nos. 1511/2011

and 1512/2011. Both these bail applications were filed

with the supporting affidavit of Alka Rajvansh, wife of the

petitioner. However, a question of maintainability of the

petitions was raised by the learned counsel for the CBI

during the course of issuance of notice. Subsequently,

the petitioner has filed his own affidavit in support of

both the petitions. In both these petitions, the

CBI/respondent is investigating the matter.

2. The bail application bearing no. 1511/2011 pertains to

CBI case bearing RC No. 6(E)/2010-EOU-VII under

Section 120 B read with section 406/409/420 IPC and

the second bail application bearing no. 1512/2011

pertains to CBI case bearing RC No.7(E)/2010-EOU-VII

under Section 120 B read with section

406/420/467/468/471 IPC which were registered by the

Economic Offences Wing, Delhi Police, Delhi.

3. So far as the first bail application no. 1511/2011 is

concerned, the allegations in the FIR, in brief are that

M/s Zenith Mining Pvt. Ltd. through its CMD Shri Syed

Najam Ahmed and others, during the year 2004-2005, in

pursuance to a criminal conspiracy and on the basis of

false claims about their business, obtained loan/advance

of `90.22 crores from NAFED for carrying out business of

procurement and export of iron ore fines. It was alleged

that M/s Zenith Mining Pvt. Ltd. had repaid only `30.47

crores upto 22.03.2005, and thereafter, they stopped

payment to NAFED, and accordingly, an amount of

`67.11 crores including the interest and service charges

was outstanding against them.

4. During the investigation by the CBI, the regular bail

application of the co-accused Syed Najam Ahmed and

Vinod Gupta was dismissed on 18.10.2011 and

21.10.2011 respectively. Both the co-accused persons

are presently stated to be in judicial custody. In the

investigation, it was revealed that during the relevant

period of time, the petitioner, though not named in the

FIR,was posted as Additional Managing Director of NAFED

and he was a part of the conspiracy with the co-accused

Syed Najam Ahmed and Vinod Gupta, office bearers of

M/s Zenith Mining Pvt.Ltd.and he had fraudulently and

unauthorizedly executed an agreement dated 12.02.2004

with NAFED for supplying 60,000 MTs of iron ore fines on

tie up basis after fraudulently obtaining conditional

approval of the then Managing Director, NAFED. NAFED

was to export the iron ore fines which was to be supplied

by the M/s Zenith Mining Pvt. Ltd. It is alleged against

the petitioner that he had signed the agreement for and

on behalf of the NAFED and falsely represented that

NAFED has obtained a contract the foreign buyers for

export of the iron ore fines, while as there was none.

The petitioner is purported to have released a sum of `9

crores to M/s Zenith Mining Pvt. Ltd. without obtaining

the mandatory approval of the competent authority i.e.

Managing Director of the NAFED and no requisite

documents were purported to have been executed as

mandated in the agreement. It is alleged by the CBI that

the proposal for the release of `9 crores was objected by

the subordinate officials of the petitioner to which no

heed was paid and bogus certificates were submitted by

the co-accused persons. It is alleged that no material

was ever supplied against this advance of `9 crores given

in pursuance to the agreement dated 12.02.2004 and no

export was made. It is further alleged that despite no

material having been supplied by the accused company

i.e. M/s Zenith Mining Pvt. Ltd. against the first

agreement, the petitioner without even obtaining the

approval of the competent authority, again entered into

another agreement dated 16.03.2004 with the same

company for export of 90,000 MTs of iron ore fines.

Against this agreement also, the accused/petitioner

further released advance to the tune of `81.22 crores

without obtaining the approval of the competent

authority. It is alleged that fake certificates of

quality/quantity were submitted by the co-accused to

facilitate the release of the amount. It is alleged that

the petitioner released the advances willfully ignoring the

follow-up of the advances to ensure their utilization for

the intended purpose. It is alleged by the CBI that out of

the advance, an amount of `6.5 crores was shared

among the petitioner, co-accused Vinod Gupta and one

Himanshu Tayal, who is yet to be located and examined.

The petitioner is alleged to have received an amount of

`4 to `4.5 crores. It is alleged that the petitioner has not

joined the investigation despite the number of notices

having been sent to him on 04.10.2011, 07.10.2011,

11.10.2011, 17.10.2011 20.10.2011 and 28.10.2011.

The wife of the petitioner and the servants available at

the residence of the petitioner are not furnishing the

details of his whereabouts, and therefore, the custodial

interrogation is required.

5. So far as the second bail application bearing no.

1512/2011 is concerned, the said case was also

registered vide FIR No. 166/2007 dated 20.04.2007,

under Section 120B read with section

406/420/467/468/471 IPC by P.S. Sriniwaspuri, New Delhi

on the complaint of Sh. S. N. Solanki, Branch Manager,

NAFED, New Delhi against M/s Roshan Lal Lalit Mohan, 6

& 7 Gopinath Building, New Delhi Gadodia Market, Khari

Bawli, Delhi-110006. However, in pursuance to the

orders of Hon'ble Lt. Governor, Delhi, the investigation of

this case was also transferred to CBI.

6. During investigation, it was revealed that proposal was

submitted by M/s Roshan Lal Lalit Mohan to the present

petitioner for tie up business for procurement of dry fruits

and kirana items. For this purpose, a memorandum of

understanding dated 05.07.2004 was signed between the

present petitioner, for and on behalf of NAFED and the

proprietor Mr. Lalit Mohan of the aforesaid concern. In

the investigation, it was revealed by the CBI that some

conditions in the MoU were contrary to the conditions as

approved by the Managing Director of NAFED. Condition

as approved by MD, was that delivery shall be made

against 100% payment but in MoU it was against PDC of

not more than 30 days. A clause of advance of `21

crores to M/s Roshan Lal Lalit Mohan was also

unauthorizedly inserted in the MoU by the present

petitioner as the same was not approved by the

competent authority. It is alleged that these changes

were made to benefit the said private party with a

dishonest intention. It is also alleged that in the said MoU

the provision of advance was contrary to the guidelines of

the Business Committee as well as to the payment Clause

5(b) of the MoU. Investment Clause 5(b) of the said MoU

is that NAFED shall finance 90% value of the goods

purchased, hypothecated and deposited in the reputed

cold storages in the name of NAFED. While as at the

time of release of payment of `21 crores no stocks were

deposited by M/s Roshan Lal Lalit Mohan in the cold

storages in the name of NAFED.

7. It is also alleged that the present petitioner ignored the

objections of the subordinate officials that against the

advance of `36 crores stock worth `19.48 crores only has

been submitted and thus in nutshell the investigation

revealed the role of the present petitioner which was

suspected to be not bona fide. It is further the case of

the CBI that apart from this, six other cases are

registered against the present petitioner. The learned

senior counsel for the petitioner has contended that the

petitioner is either on anticipatory bail or on regular bail

in all such cases, details of which are given in the

applicaiton.

8. So far as the present cases are concerned, it was

contended by the learned counsel for the CBI that they

want custodial interrogation of the petitioner to be

conducted with a view to reach at the bottom of the

matter.

9. It was contended by the learned senior counsel for the

petitioner that the CBI cannot insist on the custodial

interrogation of the accused in cases, unless and until it

was imperative to go to the root of the matter.

10. Although, both the petitions were filed by the same

counsel, but it seems that from strategic point of view

two senior counsel Mr.Dinesh Mathur and Mr. Arun

Bhardwaj appeared and made extensive submissions for

grant of anticipatory bail to the present petitioner. The

submissions which were made by the learned senior

counsel in two separate matters are somewhat common

and therefore, I feel it will be convenient to sum up the

submissions made by the learned senior counsel on the

basis of which the anticipatory bail was sought.

(i) It was contended by the learned senior counsel for

the petitioner that the petitioner was posted in

NAFED as an Additional Managing Director between

the period of 2003 to 2006 and he did take

decisions in the discharge of his duties with regard

to the conduct of the business of the NAFED with

the approval of the Managing Director or the Board

Resolution or the Business Committee, and

therefore, he alone could not be made liable. It has

also been contended that in a given case, there

may be an error of judgment in taking a decision

that can certainly be not made as a basis of criminal

liability so far as the petitioner is concerned.

(ii) That admittedly the petitioner has joined the

investigation right from 2004 onwards when the

FIRs were registered by Delhi Police on number of

occasions. Presently, he is posted as Commissioner

of Income Tax at Agra and despite this, his

residence in Delhi has been raided on two occasions

and the arrest of the petitioner is being sought with

a view to humiliate and embarrass him. It was

contended that the petitioner has a fixed place of

residence, roots in the society and is not going to

abscond, but certainly the petitioner should not be

made a victim of witch hunting being done by the

respondent/CBI. No recovery could be effected

with regard to the money which is alleged to have

been defalcated or misappropriated by the private

parties from the petitioner.

(iii) It was contended that the civil suits or arbitration

proceedings have already been initiated by the

NAFED against the defaulting parties to affect

financial recoveries. Therefore, this is nothing but

an effort to convert a civil recovery case arising out

of a breach of an agreement into a criminal offence

by falsely implicating the petitioner.

(iv) On merits, it was contended by Mr.Mathur, the

learned senior counsel that so far as the offences

under Sections 409 and 420 IPC are concerned,

both of them cannot co-exist. In this regard, it was

contended by Mr. Mathur, the learned senior

counsel that Section 409 IPC is applicable only in

the case of public servant while as NAFED itself had

issued a circular that a person who is posted on

deputation in NAFED or is an employee of NAFED

could not be treated as a public servant, and

therefore, the said Section prima facie is not

applicable. It was also contended that offence of

cheating is not made out when the case of CBI itself

is that the party which had been advanced loan has

returned a portion of the money.

        (v)     It was also contended that the objections which

               were     put     up      by    the   subordinates    were      not

               necessarily to be followed by the petitioner.               It was

contended that the superior is not bound by the

objections or the observations made by his

subordinates. The petitioner was competent to take

a decision of his own if it is in the interest of the

organization concerned, he is competent to take the

same, though in retrospect it may prove to be an

error of judgment but it will not have the contours

of a dishonest intention, so as to deny the

anticipatory bail to the present petitioner. As

regards the offence under Section 420 IPC, it was

contended that the ingredients of Section 420, 467

and 468 IPC are not satisfied and a reference was

made in this regard to the various judgments which

are reported are as under:

Central Bureau of Investigation, Hyderabad Vs. B. Ramaraju & Ors. (2011) 5 SCC 340

Maksud Saiyed Vs. State of Gujarat & Ors. (2008) 2 SCC (Cr.) 692

S. K. Alagh Vs. State of Uttar Pradesh & Ors. (2008) 2 SCC (Cri.) 686

(v) The learned senior counsel has also referred to the

judgment of the Apex Court in case titled

Siddharam Satlingappa Mhetre Vs. State of

Maharashtra 2011 (1) SCC 514 in order to

canvass the question of grant of anticipatory bail.

11. The learned counsel for CBI has vehementally opposed

the grant of anticipatory bail. It has been contended by

the learned counsel for the CBI that the allegations

against the petitioner are very serious in nature and

although he is not specifically named in the FIR but the

evidence which has been gathered during the course of

investigation clearly show his complicity in the

commission of offence. It is contended since public funds

are involved to a huge extent, custodial interrogation of

the petitioner only will be able to help the investigating

agency to reach at the bottom of the matter. So far as

the fact that the petitioner having been granted

anticipatory bail or regular bail in other cases are

concerned, it was contended that the CBI did not arrest

the accused/present petitioner or oppose his bail, until

and unless it is absolutely necessary for the fair

investigation of the matter. It is in this background that

the custodial interrogation of the petitioner is prayed for.

12. I have carefully considered the submissions made by the

respective sides. I have also gone through the record.

13. So far as the judgment of the Apex Court in

Siddharam's case (Supra) is concerned, there is no

dispute about the proposition of law laid down therein

that Section 438 Cr.P.C. is not an extraordinary law in

the sense that it is to be invoked only in exceptional or

rare cases. It is also not disputed that a great deal of

ignominy and humiliation is attached to the arrestee, and

in case the accused has joined the investigation and fully

cooperating with the investigating agency or he is not

likely to be absconded in that event custodial

interrogation should be avoided.

14. However, in the light of the directions passed by the

Apex Court in Siddharam's case (Supra) the question

to be considered by this Court as to whether this is a fit

case for grant of anticipatory bail are almost the same

which are applicable to the grant of regular bail. These

are:-

(a) Enormity or the seriousness of the allegations.

(b) Chances of the accused absconding or whether he

has roots in the society.

(c) Chances of the petitioner creating hurdles in the fair

investigation or the trial in other words the chances

of the petitioner tampering with the evidence.

(d) Whether the petitioner has joined the investigation

or is prepared to join the same or whether this is a

fit case for custodial interrogation.

15. Coming back to the facts of the present case there is no

dispute about the fact that the present petitioner is an

employee of the Indian Revenue Service and is presently

stated to be posted as Commissioner Income Tax, Agra.

The petitioner has admittedly roots in the society and

owns property in Delhi and may be elsewhere also, and

therefore, the chances of his fleeing from the processes

of law are very remote. Therefore, so far as this

consideration for grant of anticipatory bail is concerned,

it certainly is in favour of the petitioner.

16. The next question which arises is as to whether the

allegations against the petitioner are serious or not, and

if, serious as to whether it warrants his interrogation by

insulating his liberty by granting him anticipatory bail or

whether the investigating agency be given free hand to

interrogate the petitioner in custody. In this regard, the

conduct of the petitioner in so called joining the

investigation will have to be seen, with regard to the

enormity of charges and the seriousness of the

allegations. There is no dispute about the fact that the

enormity of the charges or the allegations against the

petitioner are very serious in nature. I was informed

during the course of oral submissions by the learned

counsel for the CBI that an amount of `630 crores

approximately has been pilferaged or misappropriated

/cheated from the NAFED by the number of persons and

different organizations under the garb of various kind of

business propositions. It may be pertinent here to refer

to the observations of Hon'ble Mr. Justice Manmohan

Singh while entertaining three petitions for arbitration,

the learned Judge had observed as under:

"1. In a short span of about five months, I have come across three cases wherein petitioner-NAFED, a national level cooperative society set up under the Multi- State Co-operative Societies Act, 2002, has filed proceedings to secure its interest in financial transactions.

2. While in OMP No. 589/2007 petitioner- NAFED advanced a sum of Rs.223.93 Crores as a means of finance for the purpose of procurement of iron ore, in OMP No. 449/2007 petitioner-NAFED advanced an

amount of Rs.90.7 Crores for export of iron ore. Similarly, in A.A. No. 73/2010 petitioner- NAFED advanced a sum of Rs.2.3 Crores towards financial assistance for export of fuel oil, sugar and other products.

3. In the above three cases, according to petitioner-NAFED, larger amount of monies advanced were misappropriated by the parties to whom the same were disbursed. In OMP 589/2007, which was disposed of by me vide order dated 3rdNovember, 2009, it was the petitioner- NAFED?s case that the amount advanced by it, namely, Rs. 223.93 Crores was utilised for buying immovable properties and for buying paintings of a famous painter. I may mention that in the said case, it was the petitioner-

           NAFED?s case that Central Bureau of
           Investigation     had      initiated    criminal
           prosecution        against         not      only

private beneficiaries but also against its own officials.

4. In all these three matters, petitioner- NAFED has now initiated arbitral proceedings to seek recovery of monies advanced by it, which shows that huge amount of public money has been siphoned off by various private companies/individuals by taking huge loans/advances from petitioner-NAFED. It is apparent that the above three transactions reflect a systematic failure of internal process of an organisation registered under a Statute and controlled by the Government.

5. I am also of the prima facie opinion that these three cases need to be taken as case

studies by a committee comprising a representative each from Cabinet Secretariat, Comptroller and Auditor General of India and Department of Agriculture and Co-operation, Ministry of Agriculture, Government of India to consider whether structural changes are required to be carried out to ensure that there is a proper system of checks and balances so that in future similar transactions do not recur.

6. Consequently, I direct the Registry of this Court to open a separate Public Interest Litigation file in which it should place copies of petitions filed by petitioner-NAFED in OMP Nos. 449/2007, 589/2007 and A.A. 73/2010 along with a copy of this order. The said PIL be listed before a Division Bench of this Court according to Roster on 7th April, 2010.

7. List the present petition before this Court for further proceedings on 22nd March, 2010.

Sd/-

MANMOHAN,J MARCH 18, 2010

17. Nobody has informed the Court as to what happened to

the subsequent proceedings which were directed by the

Hon'ble Mr. Justice Manmohan by converting the

order passed in three OMPS/Arbitration Application as PIL

in order to ensure not only the recovery of the money

belonging to the NAFED but also in order to prevent

subsequent pilferage of money. This clearly reflects the

enormity of the public money being squandered by the

various employees of the organizations in conjunction

with private parties. No doubt, the petitioner is involved

in as many as five or six cases in this regard and he has

been able to get the anticipatory bail or the regular bail

from different Courts but that ground of getting regular

bail or anticipatory bail in other five cases does not

necessarily mean that he must also get an anticipatory

bail in these cases also. So far as the grant of

anticipatory bail in the given case is concerned, the

application of each cases is to be decided on the facts

and circumstances of the individual case. The other

connected question which is to be considered by this

Court is as to whether the decision taken by the present

petitioner could be said to be a bona fide decision, even if

it was a decision which did not go well, so far as the

money of the Organization is concerned. I do not agree

with the submissions made by the learned senior counsel

that merely because a decision was taken by the

petitioner on the basis of the resolution having been

passed by the Board or by the Business Committee, it

could not be said that the petitioner did not have any role

in the pilferage and in the mis-utilization of the funds. A

genuine administrative decision may be wrong or an

administrator in a given case may err in taking a decision

which may cause financial loss, but that cannot ipso facto

be construed as a negligence entailing criminal liability

but in a given case, if there are series of transactions

done by such person and all of them resulting in

financial loss to the organization and benefit to the

private parties, it is bound to raise suspicion regarding

the intention of the present person. This is precisely the

case in hand. There are series of decisions taken by the

petitioner with or even without valid authority which has

caused serious financial loss to the organization which

give rise to suspicion and registration of several cases

against him and rightly so. It is the case of the

prosecution that in the case of M/s Roshan Lal Lalit

Mohan i.e. Bail Appl. no. 1512/2011, an MoU got

approved of giving some loan to a proprietary concern for

the purpose of export of dry fruits. The terms and

conditions for grant of this loan were also approved by

the Board. The allegation against the petitioner is that

after the terms and conditions of the Board were

approved, the petitioner had inserted a condition of

advancing an amount of ` 21 crores as advance to the

said party when there is no authorization in this regard.

The petitioner was the signatory to the agreement/MoU.

This kind of addition or interpolation with the terms and

conditions of MoU could, certainly, by no stretch of

imagination be said to be a bona fide error of judgment.

More so, if this is seen in the light of the fact that not one

decision but various decisions which has been taken by

the present petitioner with regard to the contract, MoU

and agreement for giving the loan/advances or entering

into the business transactions with other parties has

resulted in financial loss to the NAFED, it clearly show

that there is something more than what meets the eye.

Obviously, this needs to be investigated.

18. I agree with the contention of Mr. Dinesh Mathur, the

learned senior counsel for the petitioner that the

petitioner was not bound to follow the objections raised

by his subordinates. But this is not an argument to be

seen in isolation. In the particular case if there are series

of acts done or decisions taken by a superior officer

overruling the objections raised by a subordinate, it

normally ought to be for the betterment of the

organization and not for its financial loss. Since in the

instant case, a series of decisions taken by the petitioner

have not only caused loss to NAFED but helped private

parties and it has prima facie come in evidence that this

was done for consideration, obviously offences under

various provisions of IPC are made out.

19. Similarly, in regard to the other case bearing B.A. no.

1511/2011, the petitioner had advanced an amount of `6

crores in the first instance in pursuance to an agreement

which was to be secured by pledging the stock. The

subordinates of the organization had taken an objection

that the parties concerned had not secured the interest

of NAFED by pledging the stocks yet they were overruled

by the present petitioner and a fresh amount of `9 crores

was purported to have been released to such a party

without securing the interest of NAFED. These kinds of

decisions of the petitioner, working to the detriments of

the organization causing financial loss to it and to the

definite advantage of the private parties can certainly,

not be said to be bona fide decisions of a public servant.

I am cognizant of the fact that there is a circular which

has been cited by the learned senior counsel for the

petitioner, issued by NAFED that the employee of NAFED

are not treated as public servant. I have not referred to

the petitioner as a public servant within the parameters

or definition of the word 'public servant' as given in

Section 21 of the IPC. This is to be seen by the Court at

an appropriate stage. I am referring to him as a public

servant as a holder of a trust of the public. Admittedly,

NAFED is a cooperative society, and therefore, it is an

office which has entrusted to him to discharge the duties

expected to be bona fide, lawful and that of a honest

person for the welfare of the society and its members,

which he prima facie failed to do.

20. The learned counsel for the CBI had also during the

course of his arguments referred that there is a pilferage

of public funds to which the learned senior counsel for

the petitioner had raised a serious objection that the

funds of the organization are not given by the

Government, therefore, they could not be treated as

public funds. It was contended that it is a society

registered under the Multi State Cooperative Societies

Act. I fully agree with the contention of the learned

senior counsel that NAFED may not be receiving any

funds from the Government of India, but when learned

counsel for the CBI referred to the funds, of NAFED as

public funds it only meant to show that the funds of

NAFED are not private funds in as much as they did not

belong to any particular individual but are of the society.

21. Therefore, in the light of these facts, I do not subscribe

to the view sought to be canvassed by the learned senior

counsel that the petitioner's complicity is absent and any

dishonest decision was at all taken by the petitioner. It

was bona fide decision and an error of judgment in taking

a decision could not be treated as a criminal offence. It

is followed by the series of decisions in various cases

which have been registered against the present

petitioner.

22. Another argument which was sought to be canvassed by

the learned senior counsel for the petitioner was that civil

litigation have already been initiated and the matters are

pending before the learned Arbitrator. Admittedly the

recovery proceedings stand initiated by way of arbitration

proceedings or OMP against the party concerned, but

merely, because such actions have been initiated by

NAFED, it does not prima facie absolve the petitioner of

its criminal liability, if any, of having committed an

offence. I also do not subscribe to the contention of the

learned senior counsel Mr. Dinesh Mathur that basic

ingredients of Section 420 and 409 IPC are not satisfied.

The judgments which are deciding the questions of

criminal liability on the touch stone of Section 420 and

409 IPC are essentially on merits and not for the purpose

of grant of bail, therefore, I am not inclined to refer to

the said authorities at this stage. At the stage of grant of

bail, the Court may not do the minute dissection of the

ingredients of Sections 420 and 409 IPC in respect of

which the allegations are levelled against the petitioner.

23. The last aspect on the basis of which the bail is sought by

the petitioner is that he has joined the investigation and

for this purpose he has gone to the CBI and the police for

more than 20 to 30 times and moreover, his premises

has already been raided and nothing has been recovered

from his house. The fact that the petitioner has joined

the investigation is disputed by the learned counsel for

the CBI in the status report which is duly supported by

an affidavit. So far as the question of petitioner joining

the investigation is concerned, I feel that this is not a

case where the petitioner can be permitted to join the

investigation while insulating his liberty. The Apex

Court in number of judgments have made a distinction in

custodial or non-custodial interrogation and the

consequent result of the investigation. It has also taken

the note of the fact that the results are different. Reliance

in this regard is placed on State Vs. Anil Sharma AIR 1997 SC

3806 & Muraleedharan Vs. State of Kerala AIR 2001 SC 1699.

There is a perceptible difference in the results of the interrogation

when a person who has an order of anticipatory bail in his pocket

and goes to the investigation agency. He is bound not to

cooperate and not to give the correct answer to the

questions put to him to reach at the bottom of the case

as against the person who is in custody or who does not

have the protection of the anticipatory bail. Admittedly,

during the interrogation CBI does not resort to any third

degree measures nor is there any allegation made by the

petitioner that during the course of investigation he was

subjected to any third degree measures.

24. For the above mentioned reasons and keeping in view

the totality of circumstances, I feel that this is not a fit

case where the petitioner is entitled to the benefit of

anticipatory bail and the IO has to be given a free hand

for the purpose of investigation so as to reach at the

bottom of the nexus and racket of defalcating the

monies of the Cooperative Society, especially NAFED for

its substantial amount of money. Accordingly, both the

applications are rejected.

V.K. SHALI, J.

NOVEMBER 09, 2011/KP