Prasant Bhartia @ Prashant Bhartia vs The State Of Jharkhand Through Acb ... ...
2024 Latest Caselaw 332 Jhar

Jharkhand High Court

Prasant Bhartia @ Prashant Bhartia vs The State Of Jharkhand Through Acb ... ... on 12 January, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                         B.A. No. 9669 of 2023
                          1



 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  B.A. No. 9669 of 2023
                            With
                  I.A. No. 11181 of 2023
                                -----

Prasant Bhartia @ Prashant Bhartia ... ... Petitioner Versus The State of Jharkhand through ACB ... ... Opp. Party

-------

CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

-------

For the Petitioner : Mr. Mahesh Tewari, Advocate For the Respondents : Ms. Nehala Sharmin, Spl. P.P.

------

Order No. 04/Dated 12th January, 2024

1. The instant application has been filed for grant of

regular bail in connection with Hazaribag ACB P.S. Case

No.08 of 2023 registered for the offence punishable under

Section 7(a) of the Prevention of Corruption (Amendment)

Act, 2018.

2. The petitioner when was in custody, had filed one

interlocutory application being I.A. No. 10194 of 2023

praying therein for early hearing of the matter as the

petitioner is suffering from serious acute stomach pain and

the doctor has found that there is need of early operation of

the stone in his gallbladder.

3. The Coordinate Bench of this Court, looking to the

gravity of the allegation as well as need of the petitioner for

his operation, granted the provisional bail till 21.12.2023

and posted the matter on 18.12.2023.

4. Thereafter, one fresh interlocutory application has

been filed being I.A. No. 11181 of 2023 praying therein for

confirmation of the aforesaid provisional bail granted vide

order dated 09.11.2023 passed in I.A. No.10194 of 2023.

5. Mr. Mahesh Tewari, learned counsel appearing for

the petitioner, has submitted that it is a case where the

petitioner has falsely been implicated in the instant case

since, there is no demand of money as would be evident

from bare perusal of the F.I.R.

6. It has further been submitted that although the

tainted money has been said to be recovered from the

drawer which has been found to be corroborated from the

denomination as per Pre-Trap Memorandum prepared by

the investigating agency but in absence of any demand to

that effect, it cannot be said that the petitioner has

committed any offence so as to attract the ingredients of

Section 7 of the Prevention of Corruption Act, 1988.

7. It has further been contended by referring to the

F.I.R. appended with the Post-Trap Memorandum as

appended as Annexure-4 where it has not come that any

demand was made but merely on the basis of surmises and

conjectures, the petitioner, who is an honest public

servant, at the time when he was discharging his duty, has

been implicated in the instant case due to the reason that

he has not acceded to the wish of the complainant who was

compelling the petitioner to perform some work for his

benefit.

8. Learned counsel for the petitioner has further

submitted that the chargesheet has already been submitted

and the petitioner is languishing in judicial custody since

06.09.2023, hence, the petitioner has remained in custody

from 06.09.2023 till the provisional bail has been granted,

and, as such, it is a fit case where the privilege of regular

bail may be granted.

9. Mr. Mahesh Tewari,, learned counsel for the

petitioner, has submitted that the petitioner has not

misused the privilege of provisional bail.

10. While on the other hand, Ms. Nehala Sharmin,

learned Special Public Prosecutor appearing for the State of

Jharkhand, has vehemently opposed the prayer for bail by

taking the ground that the interlocutory application so filed

for confirmation of provisional bail cannot be said to fit to

be allowed because granting the privilege of provisional bail

vide order dated 09.11.2023, the Court has considered the

gravity of offence but in order to maintain the balance on

the ground of ailment of the petitioner which was required

during the relevant time for operation which the petitioner

had to undergo.

11. It is evident from the interlocutory application that

the petitioner has well been operated and there is no

complaint but on the ground that the Doctor has advised

for three months' bed rest, the instant application has been

filed for confirmation of provisional bail.

12. It has been contended that as per the medical

prescription it would be evident that the petitioner was

suffering from some issue in the gallbladder and, as such,

it is not such a chronic operation requiring three months'

bed rest and the grounds which have been taken in the

instant interlocutory application for confirmation of

provisional bail, cannot be said to be proper.

13. So far as the merit of the case is concerned, it has

been submitted by referring to the F.I.R. wherein it has

come that the petitioner has noted down his demand of

Rs.25,000/- in the palm and thereafter the same having

been informed to the investigating agency, the trap team

was constituted and after following the due procedure of

noting down the number and denomination of currency

notes, the complaint had gone to the office of the petitioner.

14. It has been submitted that the aforesaid amount of

Rs.25,000/- as demanded, has been kept in the drawer as

has been desired by the petitioner and thereafter, on the

instruction being given by complainant to the shadow

witness, the members of the Anti-corruption Bureau has

caught hold of petitioner as also recovered the said money

from the drawer of the office on the disclosure made by the

petitioner himself and, hence, it is a clear cut case of

demand and acceptance of bribe money and as such,

Section 7 of the Prevention and Corruption Act is well

applicable.

15. The further submission has been made that since

the petitioner even though was working on contract but he

has demanded the sum of Rs.25,000/-, hence it is a very

serious crime against the society and, therefore, keeping

the fact into consideration, as has been submitted on

behalf of the petitioner, that since the petitioner has

remained in custody for two months and the chargesheet

has been submitted, it would not be proper to allow the

instant interlocutory application.

16. Further, for the reason that the way the petitioner is

now seeking grant of bail by way of confirmation of

provisional bail, cannot be said to be proper.

17. This Court has heard learned counsel for the

parties, gone across the F.I.R. along with other documents

appended thereto as also the counter affidavit filed on

behalf of the Anti-Corruption Bureau, the investigating

agency.

18. Before delving into the facts of the instant case, it

would be proper to enumerate herein the factors which

should be taken into consideration while granting or

refusing bail in a non-bailable offences.

19. Hon'ble Supreme Court in the case of State of U.P

v. Amarmani Tripathy, reported in (2005) 8 SCC 21 and

in Sudha Singh v. the State of Uttar Pradesh & Anr.

reported in (2021) 4 SCC 781 has culled out certain

factors to be taken into consideration while deciding bail

application in non-bailable offences which are as under:-

"It is well settled that the matters to be considered in an application for the bail are:-

(I) whether there is any prima-facie or reasonable ground to believe that the accused has committed the offence;

(II) nature and gravity of charge;

(III) severity of the punishment in the event of conviction;

(IV) danger of the accused absconding or fleeing if released on bail;

(V) character, behavior, means, position and standing of the accused; (VI) likelihood of the offence being repeated;

(VII)reasonable apprehension of the witnesses being tampered with; and

(VIII) danger, of-course the justice being thwarted by grant of bail."

20. Indeed, these aforesaid guidelines are not

exhaustive, nonetheless, these have to be considered while

passing an order in a bail application in a non-bailable

offence.

21. It is pertinent to mention here that personal liberty

is fundamental and can be circumscribed only by some

process sanctioned by law. Liberty of a citizen is

undoubtedly important but this is to balance with the

security of the community. A balance is required to be

maintained between the personal liberty of the accused and

the investigational right of the police. Reference in this

regard may be taken from Vaman Narain Ghiya v. State

of Rajasthan reported in (2009) 2 SCC 281. The relevant

paragraph of the aforesaid judgment is being quoted herein

under:-

"7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have."

22. Further it is also settled proposition of law that the

courts have to strike a reasonable balance between the

societal interest and individual interest. When these

interests are irreconcilable, societal interest must prevail.

In a society governed by rule of law, there should be zero

tolerance to corruption. and one should not lose sight of

the fact that those involved in the corruption are normally

high and mighty, and therefore, may exercise their

influence in scuttling the legitimate prosecution. The law

should always help the poor and needy, and not to those

who are ever ready to sweep corruption under the carpet.

23. Further, the nature of graft cases is entirely

different from other common offences and, therefore,

greater care should be taken while scrutinizing such cases.

The same does not mean that the general principles of law

relating to bail are to be given a go bye, or a deviation, but

the only thing, which this Court would like to thrust, is

that bail in such cases should be considered with great

circumspection and only when there exists reasonable

ground for believing that the accused is not guilty of such

offences, bail should be granted. It should not be done in a

casual and routine manner.

24. The Hon'ble Apex Court in the case of Central

Bureau of Investigation Vs Santosh Krnani and

Another (2023 SCC OnLine SC 427) has observed that

corruption poses a serious threat to our society and must

be dealt with iron hands. The relevant paragraph of the

aforesaid judgment is being quoted herein under:-

31. The nature and gravity of the alleged offence should have been kept in mind by the High Court.

Corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious.

25. Now coming back to the facts of the case, the

petitioner while taken into custody and remained there for

two months, one application for early hearing was filed

being I.A. No.10194 of 2023. However, the Coordinate

Bench of this Court has allowed the privilege of provisional

bail on consideration of the ground that the petitioner was

required to undergo operation of gallbladder and

provisional bail was granted till 21.12.2023.

26. The petitioner has not surrendered after expiry of

the period of provisional bail, however, one interlocutory

application has been filed being I.A. No.11181 of 2023

seeking therein confirmation of provisional bail. The

aforesaid interlocutory application was filed on 05.12.2023.

The ground for confirmation of bail is the advice of the

Doctor who has advised for three months' bed rest.

27. The issue has also been narrated by going through

the F.I.R. placing the case said to be not proper they way

the petitioner has been implicated in the instant case.

28. Learned counsel for the petitioner has submitted

that there is no demand as also there is no acceptance

since the money has been recovered from the drawer of the

office where the petitioner used to sit for discharge of his

official duty.

29. This Court is conscious of the fact that the case has

been instituted under Section 7(a) of the Prevention of

Corruption Act and as per the ingredient referred therein,

even though there is no demand but there is acceptance

then also Section 7(a) will be applicable.

30. This Court is proceeding to examine the argument

advanced on behalf of the petitioner on the strength of the

said ingredient of Section 7(a).

31. The case has been instituted under Section 7(a) but

as would be evident from the F.I.R. that it cannot be said

that there is no demand since it is the specific case of the

complainant that a sum of Rs.25,000/- was noted down by

the petitioner in the palm of the complainant and thereafter

the said amount was paid and was recovered from the

petitioner.

32. Further, the argument is that there is no recovery

from the possession of the petitioner and, as such, it

cannot be said that there is acceptance of the amount. But

this Court, after considering the Post-Trap Memorandum,

as appended as Annexure-4, wherefrom it is evident that

when the petitioner has been trapped by the members of

the investigating team, he tried to flee away from the office

but the trap team somehow managed to catch hold of him

and on his disclosure the money was recovered from the

drawer. The said money was found to be of same currency

notes and denominations noted in the Pre Trap

Memorandum, as appended as Annexure-3 to the instant

application.

33. As such, prima facie this Court is of the view that it

cannot be said that there is no acceptance of the said

amount and it also cannot be said at this stage that there is

no recovery of the said amount to attract the ingredient of

Section 7(a) of the Prevention of Corruption (Amendment)

Act, 2018.

34. Although the chargesheet has been submitted but,

since this court is dealing with the issue of corruption and

the petitioner has only remained in custody for two months,

this Court is of the view that the instant application, at this

stage, is not fit to be allowed.

35. Accordingly, the instant interlocutory application

(I.A. No. 11181 of 2023) as also the instant bail application

are hereby dismissed.

36. However, the petitioner is at liberty to renew his

prayer for bail.

37. The petitioner since has not yet surrendered and

the instant interlocutory application has been filed during

the subsistence period of the provisional bail, as such, the

petitioner is directed to surrender before learned Special

Judge (Vigilance), ACB, Hazaribag forthwith, if not already

surrendered. If petitioner fails to surrender, the learned trial

court shall have liberty to pass appropriate order in

accordance with law.

(Sujit Narayan Prasad, J.) Birendra/