1. Heard Sri I.B. Singh, learned Senior Advocate assisted by Sri Amrendra Singh, learned counsel for the applicant as well as learned Anurag Singh, learned counsel appearing on behalf of C.B.I.
2. Present application has been moved by the applicant seeking anticipatory bail in connection with Criminal Case No. 1426 of 2017 - C.B.I. Vs. Indrajeet Tiwari and Others, arising out of RC No. 0532014A0006, under Sections 120-B read with Section 201, 204, 409, 420, 467, 468, 471, 477(A) I.P.C. and Sections 13(2) read with Section 13(1)(c) & (d) of Prevention of Corruption Act and Section 66 of the Information Technology Act, 2000, pending in the Court of the Special Judge, CBI Court No. 6, Lucknow.
3. It has been submitted by learned counsel for the applicant that according to the first information report, the entire records of the Head Post Office, Lalitpur, were digitilized and the process of digitilization was out sourced. This process was carried out during the period 2013-14. According to the first information report the accused persons in consipracy with each other installed Data Entry Module (a kind of software to change the data in the computer entries) in their respective system in the Account Branch and other system placed in the Head Post Office and Sri Indra Jeet Tiwari and Sri Shailesh Khare used the computer of Account Branch to modify the deposit amount in the data entry module in the Post Office computer record. Thereafter, they use to send someone at the counter to withdraw the money so deposited in fake accounts. At the counter, Vinod Kumar Chaudhary, Postal Assistant used to facilitate them in taking withdrawals of huge amount. In order to facilitate in these fraudulent withdrawals, they used to take witness of above mentioned National Savings Agents on the withdrawal vouchers which is prohibited as per rules. On the basis of fake witness done by National Savings Agents Anil Kumar Jain S/o Sri Suresh Chandra Jain, National Saving Agent No. 79 R/o 24, Saraipura Lalitpur and Manoj Singhai S/o Sri Mahendra Singhai, National Saving Agent No. 100 R/P 275, Katra Bazar Lalitpur, huge amount of money was misappropriated by them, which caused a wrongful loss to Government Exchequer and a wrongful gain to themselves.
4. It has also been submitted that in the first information report the applicant was not named, and it is only during the course of investigation his name came up and was included in the charge sheet. It is next submitted by learned Senior Advocate that the applicant retired from service on 30.06.2016 and had duly participated in the investigation and his statement under Section 161 Cr.P.C. was also recorded. It is submitted that the charge sheet was filed subsequent to his retirement on 30.06.2017 against ten persons including the applicant.
5. In support of the present application it has been submitted that during the process of digitilization passwords were given to the Agency for the purpose of digitilization and during the said process they had misused the said IDs and passwords and therefore, the applicant cannot be blamed for the misdeeds of the Agency. It has been further submitted that the applicant has fully participated in the investigation and he has now attained age of 65 years. It is also stated that the matter relates to the year 2013-14 and the charge sheet was filed nearly after four years of his retirement and after about 7 years from the incident, and now the applicant is being sought to be apprehended.
6. Learned counsel for the applicant further submits that all the other co-accused have been enlarged on bail and therefore there is good chance of the applicant being also enlarged on bail. The applicant had moved an application for discharge, on the ground that prior sanction for prosecution under Section 195 Cr.P.C. had not been obtained, and therefore the Trial Court cannot proceed against the applicant. The said application for discharge preferred by the applicant was rejected, against which the applicant moved an application u/s 482 Cr.P.C. before this Court which is pending consideration. Sri I.B. Singh, Senior Advocate has submitted that in the light of the judgment of Hon'ble Supreme Court in the case of N.K. Ganguli Vs. C.B.I., (2016) 2 SCC 143, prior sanction was mandatory, and in absence of the same no cognizance could be taken and therefore the trial of the applicant is illegal and arbitrary.
7. Sri Anurag Singh, learned counsel appearing on behalf of C.B.I. has opposed the prayer for anticipatory bail. He has submitted that in the charge sheet, the role of the applicant has been clearly brought forth, wherein it is stated that the applicant alongwith other persons had unauthorizedly deleted certain accounts with malafide intention. He also submits that due to non appearance of the applicant non bailable warrant has been issued by the Trial Court and proceedings under Section 83/83 Cr.P.C. have also been initiated against the applicant.
8. Heard learned counsel for the parties and perused the record.
9. From the facts as they emerge in the application as well as counter affidavit, it is evident that the incident relates to the year 2013-14, when the process of digitilization was carried out at the Head Post Office, Lalitpur where the applicant was posted. Initially the applicant was not named in the FIR and during investigation he had fully cooperated and participated and his statement under Section 161 Cr.P.C. was also recorded. The applicant subsequently retired in the year 2016 and is presently aged about 65 years. It is also noticed that all the other co-accused have been granted bail and applicant is wanted by the trial Court for participating in the trial as an accused.
10. 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."
11. I have also considered the judgments of the Hon'ble Supreme Court in the case of Lavesh Vs. State (NCT of Delhi), (2012) 8 SCC 730, wherein the Apex Court has stated that normally a person who has been declared as an absconder/proclaimed offender is not entitled to be granted ancitipatory bail. The aforesaid judgment has used words "normally", meaning thereby the Court itself was aware that there are certain other factors which may be duly considered by the Courts in exercising discretionary power for grant of bail, including cases where process under Section 82 Cr.P.C. has been initiated. It is also noticed that the Apex Court in the aforesaid case has also stated that the order under Section 82 Cr.P.C. should have been passed during the stage of investigation.
12. Learned counsel appearing for the C.B.I. has clearly stated that investigation is over and charge sheet has been filed and the applicant is not required for participating in the investigation and is only required to participate in the trial.
13. In the aforesaid circumstances, this Court is of the view that merely because proceedings under Section 82 Cr.P.C. have been initiated, anticipatory bail cannot be denied to the applicant on this ground alone.
14. In Gurbaksh Singh Sibbia and Others Vs. State of Punjab, 1980 (2) SCC 565 (Para 30), a Constitutional Bench of the Hon'ble Apex Court has held that the bail decision is made after considering variety of circumstances justifying the grant or refusal of bail. Applying the ratio of the above decision, I am of the considered opinion that in case proceedings u/s 82 Cr.P.C. have been initiated, declaring the applicant a proclaimed offender, then it would be a relevant fact, while considering the application for anticipatory bail, but it is not necessary that the anticipatory bail application ought to be rejected only on the ground that a person has been declared absconder/proclaimed offender. Even otherwise learned counsel for the respondent could not point out any bar provided in Section 82 or 435 Cr.P.C. where a person could be disentitled for anticipatory bail where proceedings under Section 82 Cr.P.C. have commenced.
15. While considering the application for anticipatory bail it is also relevant to consider the stage at which it is sought, as held by the Hon'ble Supreme Court in the case of Dataram Singh Vs. State of Uttar Pradesh, (2018) 3 SCC 22, wherein the Court in para 3 and 16 has held as under :
"3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by the Parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973."
"16. In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial Judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge-sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months' time to appear before the trial Judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial Judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody's case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity."
16. Considering the entire set of facts as narrated above, specially that the applicant is a retired Government servant, aged about 65 years, he had participated in the investigation, there are no chances of his fleeing from justice and also that he has assailed his prosecution before the High Court in proceedings under Section 482 Cr.P.C. on the ground of want of sanction, are certain facts which have pursuaded this Court to favourably consider the present anticipatory bail application filed by the applicant.
17. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
18. The Court has considered the rival submissions and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail as well as counter and rejoinder affidavits, this Court finds it a fit case to allow the present anticipatory bail application.
19. The anticipatory bail application is allowed.
20. This Court directs that in the event of arrest, the accused-applicant Sukumar Jain involved in Criminal Case No. 1426 of 2017 - C.B.I. Vs. Indrajeet Tiwari and Others, arising out of RC No. 0532014A0006, under Sections 120-B read with Section 201, 204, 409, 420, 467, 468, 471, 477(A) I.P.C. and Sections 13(2) read with Section 13(1)(c) & (d) of Prevention of Corruption Act and Section 66 of the Information Technology Act, 2000, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-
(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;
(ii). That the accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and
(iii). That the accused-applicant shall not leave India without the previous permission of the Court.
21. The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.
22. In case there is breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.
Order Date :- 12.02.2021 A. Verma (Alok Mathur, J.)