Criminal Application (ABA) No.522 of 2013

25th October, 2013

Petitioner Counsel: Mr. ANIL MARDIKAR
Respondent Counsel: Mr. S.B. AHIRKAR

Cases Cited:
Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others, 2010 ALL SCR 2725=2011(1) Bom.C.R. (Cri.) 293 [Para 4,10,12,13]
Jayendra Saraswati Swamigal Vs. State of Tamil Nadu, 2005 ALL MR (Cri) 822 (S.C.)=AIR 2005 SC 716 [Para 11,13]

JUDGMENT

JUDGMENT :- By this application the applicant has sought prearrest bail under Section 438 of the Criminal Procedure Code.

2. The previous application under Section 438 of Cri. P. C. before the learned Special Judge, Khamgaon, District Buldhana came to be rejected by the learned Special Judge by his order dated 14/10/2013. The applicant has been sought to be arrested in crime No.RC-16( A) 2013-NGP registered for an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code initially registered against one Nanoti, Income Tax Officer and later-on against the present applicant also. The crime was registered on 12/9/2013 on the basis of complaint lodged by one Dr. Sadanand Ingle. The complainant has stated that in a survey carried out on 10/9/2013 by the Income Tax Officer Nanoti and other Officers at his clinic, some documents were picked up by said Nanoti and other Officers. He has further stated that on the basis of these documents, Nanoti claimed that complainant was in possession of unaccounted money amounting to Rupees eight to nine crore on which he did not pay any income tax. He has further stated that Nanoti told him that income tax due on such an amount would be to the tune of Rupees three crore and that he was willing to settle the income tax claim at Rupees one crore, provided, the complainant agreed to pay him an amount of Rupees seventyfive lac as bribe, which the said Income Tax Officer claimed that it was not only for him but also for other Officers of the department. Since the complainant was not willing to pay the bribe amount, he lodged a complaint with the office of Central Bureau of Investigation (ACB), Nagpur (CBI), the investigating agency.

3. About six days thereafter, on the basis of the information collected and certain materials on which the investigating agency could lay its hands, an offence under Section 120-B of the Indian Penal Code also came to be added and with the aid of this Section, the present applicant was arraigned as an accused.

4. Shri Mardikar, learned Counsel for the applicant has submitted that there is absolutely no material available against the present applicant to show any sort of his involvement in the offences alleged against him. He has submitted that the learned Special Judge has misconstrued the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others reported at 2011(1) Bom.C.R. (Cri.) 293 : [2010 ALL SCR 2725] and refused to entertain the application filed by the applicant. According to him, the main accused Nanoti has already been released on bail after having been in the police custody for about six days and thereafter this Court granted an interim relief in the nature of stay on the arrest of the present applicant subject to some conditions, and accordingly the applicant had attended the office of the CBI and has also been interrogated during this period of time. Therefore, now, even custodial interrogation of the applicant would not be required. He has further submitted that the power of arrest is to be exercised only in extraordinary circumstances and this is the settled law, which has been reiterated by the Hon'ble Apex Court in the case of Siddharam [2010 ALL SCR 2725] (cited supra). He has further submitted that even the power to make arrest, granted to the Police Officer under Section 41 of Cri. P. C., after 2010 amendment, can be exercised by the Police Officer only after conditions stated therein are fulfilled and in this case, none of these conditions can be seen to be fulfilled and, therefore, the applicant deserves to be granted an anticipatory bail.

5. Learned Special P.P. for CBI, Shri Ahirkar, has submitted that there is ample material available on record which shows the complicity of the present applicant in the offences registered against him and, at this stage, when the investigation has just begun, it would not be proper to grant the relief as claimed by the applicant or otherwise, there would be a possibility of the investigation getting affected adversely. He has produced before me the case diary from which, by referring to the flagged pages, he tried to impress upon this Court as to how there is enough material showing involvement of the present applicant in the crime registered against him. Therefore, he submits that this application should not be allowed.

6. It is seen from the case diary and particularly the transcriptions of the telephonic communications recorded in this case that there were communications prima facie made between the present applicant and the complainant, the complainant and said Nanoti and the applicant and one Chatwal, who, according to the investigating agency, had been asked by the present applicant to go to Hotel Ranjeet, the first venue, where the first installment of Rupees twenty lac, as a part of bribe money was to be delivered by the complainant to the applicant. This conversation, prima facie, shows that the applicant is a person, as being claimed by the investigating agency, who was acting as a middle man or conduit between the Income Tax Officer and the complainant so as to assist the Income Tax Officer in fulfillment of his demand of illegal gratification.

7. It is true that there is a statement recorded by the investigating agency of said Chatwal, who has stated that he was sent to Hotel Ranjeet by the applicant thereby indicating, prima facie, the role of middle man played by applicant. Learned Counsel for the applicant submits that Chatwal, if this statement is to be believed, would be a co-accused and then, said statement cannot be used against another co-accused i.e. the applicant. At this stage, it would be too early to say that Chatwal had gone there with knowledge or intention regarding giving of assistance to Nanoti in receiving bribe amount on his behalf, as presently there is no such material available on record. Unless some culpable intention is established prima facie, it cannot be said that Chatwal too had played his role to see that the demand of illegal gratification allegedly made by Nanoti from the complainant was fulfilled at least partly. It is settled law, absent mens rea, no act can be seen as an offence. At this stage, it appears that Chatwal was not aware of the reason behind the purpose for which he was sent to said Hotel and he had gone there only in deference to the request made to him by the present applicant which act could be in it's nature mechanical sans any mens rea. Therefore, I am of the view, it is doubtful whether said Chatwal could be termed as 'co-accused', in this case at this stage. Prima facie, he only appears to be an acquaintance of the applicant. It is well settled that statement of an acquaintance can be used against an accused. Of course, the observation that Chatwal is an acquaintance of applicant is made by me on the basis of material placed before the Court as of date and it is only further investigation into the matter that would reveal as to whether or not Chatwal played any active role in this case. Therefore, there is no reason for me to straightway ignore the statement so made by Chatwal. This statement, at this stage, points out prima facie substance in the allegations made against the applicant.

8. The investigating agency had taken a different stand before the learned Special Judge when it stated there that the applicant himself had gone twice to the venue for collecting first installment of the bribe amount, whereas, in its reply filed before this Court, the investigating agency stated that said Chatwal had gone to Hotel Ranjeet for collecting the bribe amount on behalf of the applicant.

9. Shri Ahirkar, upon a query made to him, explained the variance in these stands by submitting that it was not very specifically mentioned before the learned Special Judge that the applicant had gone to Hotel Ranjeet and during the course of arguments, it was clarified that said Chatwal had gone to Hotel Ranjeet. The explanation so given is not at all satisfactory and it appears that the investigating agency was not careful in making statement before the learned Special Judge. But the question is, whether, on the basis of such variance, the applicant could be granted relief of anticipatory bail as sought for by him or not. Ordinarily, I would have answered this question in favour of the applicant had it not been for the material placed before me through the case diary of the investigation made so far. On going through the entire case diary, it does not appear that it was the case of the investigating agency that at any point of time the applicant had himself gone to Hotel Ranjeet. Therefore, the stand taken before the learned Special Judge and which is noted above, appears to be a product of a mistake on the part of investigating agency. Reasons for this mistake are best known to it. But, mistake is a mistake of which advantage can not be given in a criminal case to anybody against material on record. Doing so would amount to holding something not supported by record. At the most, the investigating agency can be told to be careful in future, which I do so now.

10. In the case of Siddharam [2010 ALL SCR 2725] (supra), relied upon by applicant, in paragraph 122, the Hon'ble Apex Court has laid down the parameters on the basis of which anticipatory bail under Section 438 Cri.P.C. could be granted by the competent Courts. These parameters refer to the gravity of the offence, the exact role of the accused, the antecedents of the accused including the fact as to whether he had previously undergone imprisonment or not, the possibility of the accused fleeing from justice, the possibility of the accused's likelihood to repeat other offences and the possibility of the accusations having been made only with a view to injure or humiliate the accused by causing his arrest. There are other guide lines also like considering the impact of the Courts granting anticipatory bail particularly in cases of large magnitude, the evaluation of the entire available material against the accused in a careful manner by the Courts, striking a balance between two factors, namely, what prejudice would be caused to the free, fair and full investigation if bail is granted and whether there would be, if such arrest is effected, harassment, humiliation or unjustified detention of the applicant. The Courts are further required to consider, reasonableness of apprehension that the accused, in the event of his release on bail, may tamper with evidence, and also the possibility of the accusations being frivolous in nature. The Hon'ble Apex Court has also struck a note of caution that the arrest should be the last option and it should be restricted only to those exceptional cases where arrest of the accused is imperative in the facts and circumstances of the case.

11. One more judgment rendered in the case of Jayendra Saraswati Swamigal Vs. State of Tamil Nadu reported at 2005 AIR (SC) 716 : [2005 ALL MR (Cri) 822 (S.C.)] has been pressed into service by learned Counsel for the applicant in support of his argument that unless there is a prima facie evidence that a person is a party to conspiracy, his statements cannot be used against his co-conspirator. The Hon'ble Apex Court in the said case, has held that in order to arrive at any conclusion about involvement of the accused with the aid of Section 120-B of the Indian Penal Code, the Courts must see that there is a prima facie evidence about criminal agreement between the parties and then only, the statement of one co-conspirator could be used against another conspirator. Shri Mardikar, learned Counsel for the applicant has submitted that in this case there is absolutely no material available on record which shows that there is any prima facie evidence about the conspiracy between the accused persons and, therefore, even the recorded conversation could not be used against the present applicant.

12. Before dealing with this argument, it would be necessary to see whether the parameters laid down by the Hon'ble Apex Court in the case of Siddharam [2010 ALL SCR 2725] (supra) have been broadly fulfilled in this case or not. This is so because one of the parameters is about the prima facie availability of concrete material against the accused persons and if it is seen to be present or absent, it would become easier to examine the question, whether recorded conversation could be put to use in any manner or not.

13. I have already noted that there is a telephonic conversation which, at this stage, discloses that the applicant had acted in the whole case with an intention to be a middle man between the Income Tax Officer Nanoti and the complainant Dr. Sadanand Ingle and this itself would be sufficient at this this stage to prima facie hold that there was a criminal agreement between applicant and said Nanoti to commit an offence. At this stage, it does not appear that said recorded conversation could be looked at as a mere statement of one accused against another. It is, prima facie, more than that and is in nature of implicit criminal agreement indicating prior meeting of minds. If, this is so, investigation into nature and extent of complicity of applicant in the whole case would be necessary. It is true that main co-conspirator, Nanoti, the Income Tax Officer, has been released on bail but that would not entitle the applicant to claim parity as the applicant appears to have played more active role in an attempt to collect bribe money, which may require custodial interrogation of the applicant. The offences are of serious nature and there are also allegations that the applicant was acting as a middleman for collecting bribe amount on behalf of the Income Tax Officers for last some years. Such allegations would always require proper investigation by the investigating agency and more so in present times when corruption has assumed the form of a stubborn disease afflicting the Society, which refuses to leave it. Remedy to such a decease is found only when thorough clinical and pathological investigation is made. In the instant case, the offences are of such a nature that they require not only recording of statements of witnesses but also examining documents, bank details and making of further seizures of incriminating material and, therefore, if the applicant is granted prearrest bail, there is a possibility of the applicant influencing the investigation process as well as tampering with the evidence. On the basis of the Call Details Report, as placed before me by the investigating agency, it could be seen that there was some data, which was not found stored in two mobile phones at the time of their seizure by the Investigating Officer and this data, it is prima facie seen, was relevant from the view point of effective investigation in this case. Therefore, by following the guidelines laid down by the Hon'ble Apex Court in the case of Siddharam [2010 ALL SCR 2725] (supra), I find that custody of applicant may be necessary for proper and effective investigation, which is one of the imperatives of Section 41(1)(b)(ii)(b) of the Code of Criminal Procedure, 1973, and thus this is not a fit case for granting prearrest bail to the applicant. For the same reasons, I find that there being sufficient prima facie evidence against the applicant regarding his being party to criminal agreement, he cannot seek any help from the law laid down by the Hon'ble Apex Court in the case of Jayendra Sarsawathi [2005 ALL MR (Cri) 822 (S.C.)] (supra). The application, therefore, deserves to be rejected.

14. Accordingly, the application stands rejected. Authenticated copy of the order be furnished to the parties concerned, immediately.

Petition dismissed.