1. Heard Sri Sushil Kumar Singh, learned counsel for applicant, Sri Vinod Kumar Shahi, learned Additional Advocate General for the State of U.P. assisted by Sri Santosh Kumar Mishra, learned A.G.A.-I as well as Sri Romit Seth, learned counsel for complainant.
2. The applicant has made a prayer for the grant of anticipatory bail stating that he is apprehending arrest in pursuance of the First Information Report with regard to case crime no.160/2020 dated 13/06/2020 lodged at PS Hazratganj, Lucknow under section 419, 471, 120-B, 406, 420,467, 468 & 7/13 Prevention of Corruption Act, 1988.
3. The applicant claims that he is a meritorious police officer, appointed in the Provincial Police Service in 1986, and presently posted as a Deputy Inspector General of police.
4. According to the first information report lodged by opposite party No.4, the complainant was approached by two persons namely Vaibhav Shukla and Santosh Sharma, who informed the complainant that they had close contacts with one S.K.Mittal who was working as Deputy Director, Animal Husbandry U.P., Lucknow, and that he is capable of granting contract/ tender for supply of wheat, pulses etc. to the complainant. It was also informed that S.K.Mittal was very close to the concerned minister and high value contracts can be given to the complainant. The complainant was further informed that the contract to the tune of Rs.292 crore would be granted to him. The complainant was expected to pay 3% as illegal gratification. It is further been stated that in anticipation of said contract, the complainant had paid an amount of Rs.9,72,12,000/-. A meeting was also arranged with Mr Mittal in the Secretariat. When the complainant made further inquiries regarding his tender, he was informed that there were certain complaints with regard to the manner of grant of tender and therefore the matter was referred to the CBCID for inquiry. The complainant was taken to the office of the Superintendent of Police, CBCID on 22.11.18 where it is alleged that he met the applicant, who posed himself as an officer of the CBCID who was inquiring into the grant of tender and asked the complainant to submit all the original documents relating to the tender. The applicant kept the papers with him for the "purpose of inquiry". Subsequently, one of the persons working for the complainant met the applicant again in the office of the CBCID on 11.01.2019. The Complainant grew suspicious when he could not trace the said tender online. It is then he realized that the entire process of "Tender" was fabricated and forged including the work orders he had received. He subsequently realized that the person he met claiming himself to be Mr Mittal was not an official of the Government of Uttar Pradesh but one Ashish Rai (main accused)who had duped the complainant in a systematic manner.
5. The allegation against the applicant is that he falsely portrayed himself to be the Superintendent of Police, CBCID who was investigating the genuineness of the grant of "tender" in favour of the complaint. He, therefore, actively participated in the fraud played upon the complaint.
6. It has been submitted by Sri S.K.Singh, learned counsel appearing for the applicant, that all the allegations with regard to the applicant in the FIR are false and frivolous, and there is no evidence linking the applicant to the said crime. He submits that there is no evidence to indicate that the complainant ever met the applicant either on 22/11/2018 or 11/01/2019. He submits that there is no entry on the register indicating the presence of the complainant in the CBCID office on 22/11/2018. It was submitted that the applicant was promoted as DIG, PAC, Agra by order dated 07/01/2019, joined there on 10/01/2019 and was in his office on 11/01/2019, on the date when it is alleged that he met one of the associates of the complainant. It has been submitted that there is no evidence of involvement of the applicant and therefore, at this stage, he should be entitled to anticipatory bail.
7. Sri Vinod Shahi, learned Additional Advocate General, appearing on behalf of the State has opposed the application. He has submitted that during investigation it has come on record that the mastermind of the entire operation was one Ashish Rai who had planned the entire operation. It has also come on record that Ashish Rai knew the applicant very well and the entire operation was jointly planned by them. In furtherance of the operation for the grant of a fake and forged tender, when the complainant started pressing for money in order to make the entire operation look genuine and also to buy some more time, the main accused, Ashish Rai, made up a story that the said tendering process was under scrutiny by the CBCID. They made the complainant believe that enquiry has been set up by the State on certain complaints, which was in fact totally false and fabricated. In furtherance of the plan, the complainant and some other witnesses appeared before the applicant who was said to be inquiring into the tender process. Under the garb of inquiry, the applicant required the complainant to submit all the original documents, and also made him sign on certain blank papers. It has also been stated that it has come on record that soon after the meeting with the complainant, Ashish Rai met the applicant and told him that he will manage everything and there was nothing to worry about. The applicant was to receive a sum of Rs. 35,00,000/- for his participation. In the statement recorded by the police during investigation under section 161 of the Cr.P.C Ashish Rai stated that an amount of ₹10,00,000 has been credited to the account of the applicant. The same was verified during investigation.
8. It has further been submitted that the police are on lookout for the applicant who has evaded his appearance before the police till date and the notice under section 82 of the Cr.P.C has been issued for his appearance, but he has not appeared due to which an application under section 83 of the Cr.P.C has also been preferred before the appropriate court. It was further submitted that looking into the material and the evidence available on the record, including the statement of the accused Ashish Rai, the transcripts of the recording of conversation between Ashish Rai and the applicant, and the deposit of money into the account of the applicant, all singularly point out towards the culpability of the applicant and his involvement in the said crime.
Sri Vinod Shahi in conclusion submitted that the application deserves to be rejected as:-
1. There is overwhelming evidence which has been obtained during investigation about the involvement of the applicant;
2. The charges against the applicant are serious in nature including offence under Prevention of Corruption Act,1988;
3. Applicant is fleeing from justice and deliberately not appearing before the investigating officer despite various notices being issued, and process under section 82 Cr.P.C has also been issued; and
4. The applicant is a very senior police officer and also that he is already trying to tamper with the evidence.
9. Sri Romit Seth, Advocate appeared on behalf of the complainant. He submitted that the complainant has named 13 accused persons including the applicant for committing fraud, forgery and deceitfully usurping the complainant's hard earned money to the tune of Rs.9,72,12,000/-. He has stated that the applicant is trying to manipulate investigation and in case he is granted anticipatory bail, he would interfere in the investigation as well as the witnesses, given his political contacts coupled with the fact that he himself is a senior police officer. It was further submitted that the statement of the complainant has already been recorded by the police during investigation. It has come on record that the place where the meeting of the complainant with the applicant took place was indeed the office/cabin of the applicant. He has also submitted that independent witnesses have verified the same office where the accused met the complaint, and further there is substantial evidence that has come up during investigation regarding the identity and participation of the applicant.
10. I have heard the counsel for the parties and perused the record. The applicant is a senior police official belonging to the Indian police service, holding the post of Deputy Inspector General of Police, and is accused in the case - crime number 160 of 2020 under sections 419, 471, 120-B, 467, 468 IPC and 7/13 Prevention of Corruption Act. From perusal of the first information report it is revealed that the main accused Ashish Rai floated a forged tender purportedly on behalf of the Animal Husbandry Department of State of U.P., with the meticulous plan to defraud the complainant. In fact, there was no such tender issued by the Department, but the main accused created an impression on the complainant that the same has been issued by the State of U. P. He accordingly had the tender form signed by the complainant and informed him that the tender has been granted in his favour. For the aforesaid acts he took a consideration of an amount of Rs. 9,72,12,000/- from the complainant. In fact, no such tender has ever been floated nor granted by the Government in favour of the complainant. But in furtherance of his objectives, the main accused made the complainant believe that the CBCID enquiry has been ordered into the tendering process, and it is at this stage the applicant is also alleged to have participated in the design to commit fraud, in as much as he met the complainant and his agents posing as Superintendent of Police CBCID wherein, he required the complainant to submit all the original documents on 22/11/2018 and again on 11/01/2019. The telephonic conversation between the main accused Ashish Rai and the applicant and the statement of the complainant recorded by the police has been brought on record. A perusal of the aforesaid documents reveals participation of the applicant.
11. In considering as to whether the applicant is entitled for grant of anticipatory bail, this Court must take into account and weigh the relevant considerations with the facts of the case. The relevant considerations for grant of anticipatory bail have been duly considered by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which reads as under:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence.
(iii) The possibility of the applicant to flee from justice.
(iv) The possibility of the accused's likelihood to repeat similar or other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
12. In the present case the applicant is alleged to have actively participated in an offence of cheating and in furtherance of the said objective, he held a meeting with the complainant to show that the entire tender process was genuine and therefore prima facie there was an active connivance with the main accused to achieve the objectives of defrauding the complainant. He is also alleged to have received Rs.10,00,000/- as illegal gratification and the amount was deposited in his bank account.
13. In the peculiar facts and circumstances of the present case, it is also to be considered and taken to note of the fact that the applicant is a serving police officer, working on the post of Deputy Inspector General of police. He was in communication with the main accused and knew about the entire operation. He also received illegal gratification in his Bank account for participating in the said operations.
14. It has been submitted on behalf of the applicant that his identity has not been established. On the contrary, the State has produced material including the statement of the main accused Ashish Rai, as well as the transcript of the phone conversation between the applicant and the main accused which disclose that the factual situation is otherwise to what has been argued by the counsel for the applicant. At the stage of grant of anticipatory bail, the court is only required to look into the material produced by the applicant and the State, and on consideration of the said material, form a prima facie opinion with regard to the role and participation of applicant in the said offence. From the material produced before us, it cannot be said that, either, no offence is made out, or that there is no material available against the applicant.
15. Regarding the severity of the offence, it is to be considered that the applicant is a Senior Police Officer holding the office of Deputy Inspector General of Police, and the charge against him is also grave and serious. He is alleged to have received Rs. 10 lakhs into his bank account, which has also been examined in detail by the investigating authorities. There is no satisfactory explanation of this by the applicant. His participation in the systematic defrauding of the complainant has also come up during investigation.
16. The next point which arises for consideration is as to whether in facts of the present case, where the applicant has not made himself available before the investigating authority nor arrested by the police, and a notice under section 82 Cr. P.C. being issued, would the applicant in the present circumstances be entitled for anticipatory bail ?
17. The learned Additional Advocate General has submitted that the applicant is fleeing from justice, as despite being a public servant he is not attending his office subsequent to the registration of the first information report. Efforts have been made to apprehend the applicant, but still he could not be arrested. It has been submitted that it is only after examining all the material and evidence on record and in consonance with the judgement of the Hon'ble Apex court in the case of Joginder Kumar(1994) 4 SCC 260, it was felt necessary to apprehend the applicant and therefore the police have resorted to the provision of section 82 of the Cr. P.C. for ensuring the presence of the applicant during investigation. Despite the process under section 82 Cr.P.C having been undertaken, the applicant has still not presented himself and therefore an application has been filed in court for the attachment of property under section 83 Cr. P.C., and therefore relying on the judgment of the Hon'ble Apex Court, the applicant has disentitled himself for anticipatory Bail.
18. Learned Additional Advocate General relied upon the judgement of the apex court in the case of Lavesh v. State (NCT of Delhi) reported in (2012) 8 SCC 730.
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.
He also relied upon the judgement of the Hon'ble Apex Court of State of M.P. v. Pradeep Sharma, (2014) 2 SCC 171 and submitted that the law regarding accused/applicant who has been declared to be a proclaimed offender is clear and that he would not be entitled to the benefit of anticipatory bail. He submitted that the applicant is also similarly circumstanced and despite the proclamation having been issued for his appearance under section 82 of the Cr.P.C, he has not made himself available and stated that the ratio of the judgement in the aforesaid case of Lavesh v. State would be applicable in this case as well. He further submitted that it is not absolutely necessary that a person may have to be declared a proclaimed offender, and even if process under section 82 has been initiated and the accused has not appeared before the investigating officer and is fleeing from justice, then also he would not be entitled to the benefit of anticipatory bail. In support of his contention, he placed reliance upon the judgement of the Supreme Court in the case of State of M.P. v. Pradeep Sharma, (2014) 2 SCC 171. The relevant extracts of the said judgment are as follows: -
10. The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondent-accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.
16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730: (2012) 3 SCC (Cri) 1040] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under: (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as ''absconder'. Normally, when the accused is ''absconding' and declared as a ''proclaimed offender', there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."
It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
19. Per contra, Shri SK Singh, counsel of the applicant, submitted that in as much as under Section 82(4) Cr. P.C., the applicant has not been declared to be a proclaimed offender, therefore, the said judgement of the Hon'ble Apex Court would not ipso facto apply to the facts of the present case.
20. In the present case, admittedly, the applicant has not been declared to be a proclaimed offender nor is there any such pleading in the affidavit filed by the State, but in the course of arguments, the order dated 24/12/2020 passed by the concerned Magistrate under section 82 Cr. P.C. for issuing processes against the applicant was produced. The apex court in the case of Lavesh v. State (NCT of Delhi) has held that normally, when the accused is absconding and declared as a proclaimed offender, there would be no question of grant of anticipatory bail. However, it cannot be ruled out that there may be certain other exceptional circumstances which can be considered by the court by which the court may be persuaded to grant the same. The Hon'ble Apex court in the case of State of M. P. vs Pradeep Sharma (Supra.) did not grant anticipatory bail to the applicant therein, despite the fact that the applicant was not declared to be a proclaimed offender, but proclamation under section 82 Cr.P.C had been issued, and therefore, wherever it is brought before the court that the applicant seeking anticipatory bail, is deliberately not cooperating with the investigation, or is absconding has been declared to be proclaimed offender, then the Court would be slow in granting anticipatory bail to such a person.
21. In light of the discussion hereinabove, looking into the gravity of the offence, the complicity and role of the applicant, and the material available on record, this Court is of the considered opinion that the applicant is not entitled to be granted the benefit of anticipatory bail. The application is accordingly dismissed.
22. It is made clear that the factual matrix discussed above will not influence the trial and the Trial Court will be at liberty to appreciate the evidence on its own merits in accordance with law.
(Alok Mathur, J.) Order Date :- 25.1.2021/Ravi/