Raj Kumar Agrawal vs Central Bureau Of Investigation Ahd ...

Raj Kumar Agrawal..............................Petitioner

VERSUS

Central Bureau of Investigation....... Opposite Party

CORAM: HON'BLE MR. JUSTICE R.R.PRASAD

For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate For the C.B.I : Mr. M. Khan, Advocate

5/ 18.6.13

. When huge amount of Rs.2,14,88,000/- was seized

from a vehicle bearing registration no.JH-05-AC-2185, Deputy

Director (Investigation), Income Tax Department, Ranchi informed

about it to the Officer-in-Charge of Namkum Police Station for taking

necessary action. Upon it, a case was registered as Namkum P.S.

case no.58 of 2012 under Sections 171(F)/188 read with Section 34

of the Indian Penal Code against Sudhanshu Tripathy, representative

of Shah Sponge Limited and others. Meanwhile, Public Interest

Litigation bearing W.P (PIL) No.1801 of 2012 and W.P.(PIL) No.1802

of 2012 was filed before this Court highlighting malpractices being

adopted by the candidates for the election of Rajya Sabha. This

Court having found prima facie a grave case of involvement of

money power, horse trading influencing voters, the members of the

Legislative Assembly relating to process of election of council of

Sates, directed the Election Commission to hand over the matter to

the C.B.I. Accordingly, investigation of aforesaid Namkum Police

Station Case was taken over by the C.B.I, who got it renumbered as

R.C.02(S) of 2012-AHD-R.

In course of investigation, statements of some of the

persons were recorded under Section 164 of the Code of Criminal

Procedure, who disclosed the name of certain M.L.As to whom the

petitioner had given money for casting votes in his favour. Thereupon

a petition was filed on 20.4.2012 by the Investigating Officer before

the Court stating therein that the petitioner and others seems to have 2

committed offence punishable under Sections 7, 8, 12 of the

Prevention of Corruption Act and as such, prayer was made to issue

search warrant. The prayer made by the C.B.I was allowed. In spite

of such prayer being made, C.B.I did not do anything to get the case

registered under Sections 7,8,12 of the Prevention of Corruption Act.

When notice under Section 160 of the Code of Criminal Procedure

was issued, petitioner being apprehensive that he would be arrested

filed an anticipatory bail application, bearing A.B.A No.581 of 2013

before the Judicial Commissioner, Ranchi who transferred the case

to the court of Special Judge,C.B.I, who having found the case being

registered under Section 171(F)/188 read with Section 34 of the

Indian Penal Code rejected it as non-maintainable after making

certain observation which is as follows :

" The petitioner is not named in the FIR. Investigating Officer of this case has summoned the petitioner to appear before him on 5.4.2013 for the purpose of answering certain questions relating to case. From perusal of the order dated 20.4.2012, it does transpired that learned court below has anywhere held in its order that prima facie case under Sections 7,8,12 of the Prevention of Corruption Act is made out, still the case is under Sections 171(F)/188 read with Section 34 of the Indian Penal Code which is bailable in nature."

Thereafter the petitioner surrendered before the Sub-

divisional Judicial Magistrate-cum-Special Judge, C.B.I, Ranchi on

9.4.2013 and filed an application for bail wherein prayer was made

to admit the petitioner on bail as the offences alleged are bailable.

However, submission was made on behalf of the C.B.I that though

the petitioner is not named in the FIR but certain materials have

been collected showing commission of the offences of the Indian

Penal Code as well as Prevention of Corruption Act. The court

having found that the offences under which FIR has been

registered are bailable and also taking into account the observation 3

made by the learned Special Judge are bailable and that the C.B.I

has still not instituted the case for commission of the offences

under Sections 7,8,12 of the Prevention of Corruption Act granted

bail to the petitioner, vide its order dated 9.4.2013. On the very next

day, i.e.10.4.2013, an application was filed for adding Sections

7,8,12,13 and 15 of the Prevention of Corruption Act in the FIR

earlier instituted which prayer was allowed. Thereafter an

application was filed before the C.B.I under Section 439(2) of the

Code of Criminal Procedure for cancellation of bail granted to the

petitioner, who after hearing the parties, cancelled the bail, vide its

order dated 7.5.2013 after holding that in spite of the case being

registered under the bailable offences, the court should have taken

into account the materials collected and placed before the court

showing commission of the offences under Sections 7,8, and 12 of

the Prevention of Corruption Act, notice of which had been taken

by the Court while issuing search warrant against the petitioner.

Thus, it was held that the court has granted bail to the

petitioner improperly. Hence, the bail was cancelled. It does appear

that after the bail was cancelled, the petitioner was taken into

custody.

Being aggrieved with the said order cancelling bail, this

application has been filed.

Mr.Anil Kumar Sinha, learned Sr. Counsel appearing for the

petitioner submitted that admittedly on the day when the bail has

been granted to the petitioner by the learned Magistrate, offences

alleged by the time were bailable and even the learned Special

Judge who has cancelled the bail had observed while disposing of

the anticipatory bail application of the petitioner that the offences

under which case has been registered are bailable and by holding

so, anticipatory bail application was dismissed as non-

maintainable. The conduct of the C.B.I does not seems to be fair as 4

if the C.B.I had collected materials showing commission of the

offence punishable under the Prevention of Corruption Act, it ought

to have been pointed out to the court.

It was further submitted that once a person is granted bail of

the offences bailable in nature, bail granted to that person never

warrants to be cancelled if during investigation the case turns out to

be a case of commission of offence of non-bailable and thereby

learned Special Judge certainly committed illegality in cancelling

the bail granted to the petitioner earlier.

In this regard it was further submitted that though the bail

has been cancelled on filing application under Section 439(2) of the

Code of Criminal Procedure but the C.B.I has never been able to

make out a case for cancellation as it is never the case of the C.B.I

that the petitioner after being released on bail had interfered or

attempted to interfere with due course of administration of justice

or evaded or attempted to evade due course of justice or abused

the concession granted to the petitioner in any manner and it has

never been made out a case to show that the petitioner would

possibly abscond and thereby the court cancelling the bail certainly

committed illegality and therefore, order under which bail of the

petitioner has been cancelled warrants to be set aside.

Learned counsel did fairly submits that in a situation where

bail is granted in the event of offence being bailable but in course of

investigation, the case turns out to be a case of commission of

offence of non-bailable offences, the bail never warrants to be

cancelled on that ground but the person needs to take a fresh bail

which proposition gets reflected from the decision rendered in a

case of Prahlad Singh Bhati vs. NCT, Delhi and another [(2001)

4 SCC 280] and also in a case of Hamida vs Rashid @ Rasheed

and others [(2008) 1 SCC 474 ] but the court did not take into 5

account this aspect of the mater while cancelling the bail of the

petitioner.

As against this, Mr.M.Khan, learned counsel appearing for

the C.B.I submitted that no doubt it is true that on the day when the

bail was granted the offences under which FIR has been instituted

were bailable but the materials had been placed before the court,

who granted bail, to the effect that certain materials have been

collected showing commission of the offence by the petitioner

under the Prevention of Corruption Act but the court below did not

take into account this aspect of the matter, rather went on the

levelling of the section and not on the nature of the offence alleged

to have been committed and thereby the court can certainly be said

to have committed illegality in granting bail and when learned

Special Judge, in the circumstances, found the bail being granted

improperly, cancelled the bail it did not commit any illegality and

hence, it never warrants to be quashed.

Having heard learned counsel appearing for the parties, it

does appear that the case had initially been instituted under

Sections 171(F)/188 read with Section 34 of the Indian Penal Code.

When the investigation was taken over by the C.B.I under the order

of this Court, it registered the case for the same offences and went

on investigating the case. After proceeding with investigation for

several months, one application seems to have been filed before

the court below on 20.4.2012 stating therein about the commission

of offence under the Prevention of Corruption Act and prayed for

issuance of search warrant which was issued. Upon it, when the

petitioner apprehended his arrest, he filed an anticipatory bail

application before the learned Sessions Judge who transferred the

case before the Special Judge, C.B.I and the learned Judge having

recorded that offences under which the case has been registered

are bailable did hold that anticipatory bail application is not 6

maintainable. In that event, the petitioner surrendered before the

court below who granted bail after taking into account the

observation made by the learned Special Judge and also of the fact

that the offence under Sections 7, 12,13 and 15 of the Prevention

of Corruption Act has not been registered.

In such situation, I do not find any illegality with the order

granting bail. However, on the very next day when those offences

under the Prevention of Corruption Act was added in the FIR, an

application for cancellation of bail was filed under Section 439(2) of

the Code of Criminal Procedure which was cancelled holding that

learned Magistrate while taking the case to be bailable in nature did

not consider the plea taken by the C.B.I that certain materials have

been collected showing commission of the offence under the

Prevention of Corruption Act and that he should not have been

guided by the observation made by the higher court in a bail

application but the fact is that it was the Special Judge, who after

noticing the aforesaid fact of commission of offence also under

Sections 7,8, and 12 of the Prevention or Corruption Act, did hold

that offence is bailable in nature and taking into account this aspect

of the matter and also the fact that on the day of grant of bail, the

case had not been registered under Sections 7,8, and 12 of the

Prevention of Corruption Act bail had been granted and hence, the

court seems to have committed illegality in cancelling the bail

particularly when C.B.I has failed to make out a case of

cancellation as has been stipulated under Section 439(2) of the

Code of Criminal Procedure.

Under the circumstances, the Special Judge, C.B.I seems to

have committed illegality in cancelling the bail and thereby the

order cancelling the bail is hereby set aside.

7

However, the question still does arise upon finding the order

of cancellation being not justified, whether the petitioner is required

to be released?

To answer this question, I need not to travel for rather to

refer to a case of Prahlad Singh Bhati vs. NCT, Delhi and

another (supra) wherein it has been held that with the change in

the nature of the offence, he accused becomes disentitled to the

liberty granted to him in relation to a minor offence, if the offence is

altered for an aggravated crime.

Similar view seems to have been taken by the Hon'ble

Supreme Court in a case of Hamida vs Rashid @ Rasheed and

others (supra). In that case FIR was registered under Section 324,

352 and 506 of the Indian Penal Code, though according to

informant, it should have been registered under Section 307 of the

Indian Penal Code. The accused was granted bail. During

investigation, the injured died and the case was registered under

Section 304 of the Indian Penal Code. Thereupon an application

was filed before the High Court under Section 482 of the Code of

Criminal Procedure praying therein to direct the C.B.I to permit

them to remain on the same bail. Even after conversion of the

offence of the offence into one under Section 304 of the Indian

penal Code, that prayer was allowed by the High Court and when

the matter was challenged before the Supreme Court, the Hon'ble

Supreme Court quashed the order passed by the High Court after

holding that such kind of order never warrants to be passed in an

application filed under Section 482 of the Code of Criminal

Procedure. In that event, the Hon'ble Supreme passed an order for

taking the accused into custody forthwith but at the same time, it

was observed that the accused would be at liberty to apply for bail

for the offences for which they are charged before the appropriate

court in accordance with law.

8

Coming to the case in hand, it be reiterated that the

petitioner was granted bail on being found the offence alleged

being bailable. However, subsequent to that the petitioner has been

alleged to have committed offence under the Prevention of

Corruption Act.

In such situation, he, in view of the decision referred to

above, becomes disentitled to the liberty granted to him in relation

to minor offence and needs to move for bail and since the petitioner

is in custody, no order relating to his release warrants to be passed.

However, it is observed that if such application for regular

bail in filed, the same be disposed of in accordance with law

without being prejudiced by the fact that the bail had been

cancelled and that the case is being monitored by the High Court.

Thus, this application stands disposed of.

( R.R.Prasad, J.)

ND/