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 coconspirator, 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
(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
(supra). The application, therefore, deserves to be
Accordingly, the application stands rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (ABA) NO. 522 OF 2013
(Rajendrakumar Brijkishore Jaiswal Vs. Central Bureau of Investivation, ACB, Nagpur)
CORAM : S. B. SHUKRE, J.
DATED : 25 OCT., 2013
pre-arrest bail under Section 438 of the Criminal
Procedure Code.
Citation; 2014 ALLMR(cri)2285
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.RC16(A) 2013NGP registered for an offence
punishable under Section 7 of the Prevention of
Corruption Act, 1988 read with Section 120B of the
Indian Penal Code initially registered against one
Nanoti, Income Tax Officer and lateron 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 120B 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 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 (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
6.
application should not be allowed.
registered against him. Therefore, he submits that this
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 coaccused and then, said
statement cannot be used against another coaccused
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 'coaccused', 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
10
now.
In the case of Siddharam (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
ig
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 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 coconspirator.
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 120B 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
(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 coconspirator, 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
(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
(supra). The application, therefore, deserves to be
Accordingly, the application stands rejected.
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