Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4319 of 2021
Applicant :- Rajkumar Yadav
Opposite Party :- State Thru C.B.I./ACB Lucknow
Counsel for Applicant :- Pranjal Krishna
Counsel for Opposite Party :- Anurag Kumar Singh
Hon'ble Krishan Pahal,J.
1. Heard Sri Nandit Kumar Srivastava, learned Senior Counsel
assisted by Sri Pranjal Krishna, Sri Prashan Ranjan and Sri Aviraj Raj
Singh, learned counsels for the applicant and Sri Anurag Kumar
Singh, learned counsel for the Central Bureau of Investigation (CBI).
2. By means of the present application, the applicant seeks bail in
Criminal Misc. Case No.2079 of 2021 (CBI Vs. Roop Singh Yadav &
Others), under Sections 120-B r/w 420, 467, 468, 471 of IPC and
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 with
substantive offences thereof arisen out of Crime No.
RC0062017A0026, registered with CBI, Anti Corruption Branch,
Lucknow and pending before the learned Special Judge, Anti
Corruption CBI, West, Lucknow.
PROSECUTION STORY
3. In the instant case, the FIR was registered by the CBI on the
basis of order dated 17.7.2017 of the Government of U.P. pertaining to
the financial irregularities committed with criminal intent in the work
of "Gomti River Channelization Project" and "Gomti River Front
Development" by the Irrigation Department. The State Government
asked for further investigation by the CBI in Case Crime No.831 of
2017, u/s 409, 420, 467, 468, 471, 34 IPC and Sections 7 & 13 of
Prevention of Corruption Act, 1988 (PC Act) against the accused
persons. It has also been alleged that on the written complaint of one
Ambuj Dwivedi, an FIR was registered by the local police and later
on a Judicial Commission headed by Hon'ble Mr. (Retd.) Justice Alok
Kumar Singh was ordered to conduct an enquiry under the
Commission of Inquiry Act. A comprehensive enquiry report has been
submitted to the State Government on 16.5.2017 leading to the present
FIR.
4. After investigation, charge-sheet was filed by the CBI on
16.02.2021, u/s 120-B read with 420, 467, 468, 471 IPC and Section
13(2) read with 13(1)(d) of PC Act against the applicant and other coaccused persons and further investigation is still pending pertaining to
other development works in the aforesaid project.
RIVAL CONTENTIONS
5. Sri Nandit Srivastava, learned Senior Counsel appearing on
behalf of the applicant has submitted that the applicant is the junior
most employee in the chain and had simply followed the orders of
higher authorities. He was only the Junior Assistant/Clerk in the
Irrigation Department. He was arrested on 19.11.2020 and the chargesheet has been filed on 16.2.2021. Till date cognizance has not been
taken in the matter. Learned Senior Counsel has further submitted that
charge-sheet was filed without obtaining sanction for prosecution of
the applicant as he is a government servant. Compliance of mandatory
provisions of Section 17A of the PC Act has not been carried out by
the CBI before initiating the criminal prosecution against the applicant
in the present case. Sanction for prosecution has been filed in the
Court on 15.7.2021 which is after a delay of about five months from
the filing of the charge-sheet. There is no allegation of tampering with
the evidence against the applicant. The alleged charge-sheet has been
filed only to deprive the applicant statutory rights of default bail
provided u/s 167 Cr.P.C.. There is no prima-facie offence made out
against him of being a party in the criminal conspiracy with the main
accused, Roop Singh Yadav. The applicant is not named in the FIR.
6. Learned Senior Counsel has relied upon the judgement of Apex
Court in the case of Yashwant Sinha & Others v. Central Bureau of
Investigation1
, wherein it has been held that no Police Officer is
permitted to conduct any enquiry or investigation into any offence
committed by a public servant where the offence alleged is relatable to
any recommendation made or decision taken by the public servant in
discharge of his public functions without previous approval, inter alia,
of the authority competent to remove the public servant from his
Office at the time when the offence was alleged to have been
committed.
7. Learned Senior Counsel for the applicant has also submitted
that the applicant was not in a position to do any favour or any disfavour to any of the Contractor as he was only the Junior Assistant
having no authority to do anything worthwhile. He has also placed
much reliance on the judgement of Apex Court passed in Sanjay
Chandra Vs. CBI2
, wherein it has been opined that the object of bail
is neither punitive nor preventative. The courts owe more than verbal
respect to the principle that punishment begins after conviction, and
that every man is deemed to be innocent until duly tried and duly
found guilty.
8. Learned Senior Counsel for the applicant has also submitted
that the eligibility and non-eligibility of the firms/companies in the
tender process was to be decided at a later stage by the concerned
authorities and the applicant had no role in it. He has then placed
much reliance upon the judgement of Apex Court in Dataram Singh
Vs. State of U.P. and another3
. Learned Senior Counsel has further
stated that there is no likelihood of the applicant for tampering with
the evidence or influencing any witnesses who are all public servant.
9. Per contra, Sri Anurag Kumar Singh, learned counsel for the
CBI has vehemently opposed the bail prayer of the applicant by
contending that the work of "Intercepting Trunk Drain" was awarded
to M/s K K Spun Pipe Pvt. Ltd., New Delhi despite not meeting out
the technical qualification criteria of annual turnover and also did not
submit the mandatory certificates on financial fitness to be issued by
the District Collector. The bank guarantee used by the L-2 firm M/s
Brand Eagles Longian JV was made from the account of L-1 firm M/s
K K Spun Pipe Pvt. Ltd.. The third party M/s Patel Engineering has
categorically denied to have taken part in the tender process. The L-2
firm has entered into agreement with M/s K K Spun Pipe Pvt. Ltd. for
participating in tender procedure as such bank guarantee was prepared
from the account of M/s K K Spun Pipe Pvt. Ltd. but later on when
the manufacturers unauthorizedly allowed taking part in the tender
procedure had submitted its separate bid without informing M/s Brand
Eagles Longian JV. As such there was a cartel between M/s K K Spun
Pipe Pvt. Ltd. and M/s Brand Eagle Longian JV in pursuance of which
the bank guarantee of Rs.4.6 crores of the L-2 firm M/s Brand Eagle
Longian JV was made from the bank account of L-1 firm M/s K K
Spun Pipe Pvt. Ltd. The using of bank guarantee of one firm by
another proves that the entire Tender process was a sham.
10. Sri Singh has further stated that after investigation, charge-sheet
has been filed against the main accused Roop Singh Yadav, Executive
Engineer, Raj Kumar Yadav, Junior Assistant (present applicant),
Himanshu Gupta, Director of M/s K K Spun Pipe Pvt. Ltd., Kavish
Gupta, Director of M/s K K Spun Pipe Pvt. Ltd. and Badri Shrestha,
Senior Advisor of M/s Brand Eagles Longjian JV. Further
investigation is also going on in respect to other allegations in the
instant matter coupled with 11 remaining works.
11. Sri Singh has also submitted that the applicant had involved in
the said corruption and he had exclusive knowledge of the offence.
His name has come up during the course of investigation as he was
involved in criminal conspiracy with other co-accused persons. The
applicant himself has written under his signature that tender
documents have been sold by him to M/s Patel Engineering Limited.
However, M/s Patel Engineering Limited denied to have purchased
the said tender documents. M/s Patel Engineering Limited had not
deposited any earnest money which further confirmed the fact that the
company had not submitted the tender documents and its forged
documents were used by the applicant in the criminal conspiracy with
co-accused Roop Singh Yadav with an intention to pool the tender in
favour of the co-accused private persons. The applicant has wrongly
shown the sale of tender documents to M/s Patel Engineering Limited
and had arranged the photocopy of the documents of M/s Patel
Engineering Limited which was submitted for the work of Diaphragm
Wall. He has further stated that in the present case, tender of
Rs.258.69 crore has been given to ineligible company/person which
was later on extended to Rs.333 crores.
12. Sri Singh has also placed much reliance on the judgement of
Apex Court in Y.S. Jagan Mohan Reddy Vs. CBI4
, wherein it has
been held that economic offences constitute a class apart and need to
be visited with a different approach in the matter of bail. The
economic offence having deep rooted conspiracies and involving huge
loss of public funds needs to be viewed seriously and considered as
grave offences affecting the economy of the country as a whole and
thereby posing serious threat to the financial health of the country.
13. So far as the non-compliance of Section 17A of the PC Act is
concerned, Sri Singh has stated that though the applicant was not
named in the FIR but his role has surfaced on 10.1.2018 before the
amendment made in the PC Act, 1988 in the year 2018 which is
effective from 26.7.2018. Investigation against the applicant started well before the said amendment in the PC Act. The said amendment
do not have retrospective effect as such there is no need of permission
u/s 17A of PC Act (as amended in 2018) against the applicant. In
support of his contention, he has placed reliance upon the judgement
of Delhi High Court in the case of Central Bureau of Investigation
Vs. A. Raja & Others5
wherein it has been observed as under:-
"61. In view of the Hon'ble Apex Court decision in State of
Telangana (supra) and decision of Coordinate Bench of this
Court in Madhu Koda (Supra), this Court is of the opinion that
amending Act does not apply to the offences which have already
taken place under the PC Act, 1988 and moreover, Prevention
of Corruption (Amendment) Act, 2018 does not reveal any
intention of destroying the earlier provisions and there is no
intention to obliterate the earlier law, therefore, this Court is of
the opinion that there is no impediment in hearing the criminal
leave to appeal, since the offences in question are alleged to
have been committed prior to the coming into force of
Prevention of Corruption (Amendment) Act, 2018."
14. Sri Singh has also relied upon the jugement of Apex Court in
the case of State of Bihar Vs. Amit Kumar6
, wherein it has been held
that while considering the bail involving socio-economic offences
stringent parameters should be applied.
CONCLUSION
15. The matter pertains to a large scam of Rs.1500/- crores. During
the relevant period, the applicant was the Junior Assistant/Clerk of the
department and prima-facie, it is found that he was also the part and
parcel of the chain of corruption having been committed causing a
heavy loss to the State Exchequer.
16. Considering the facts and circumstances of the case, the nature
of offence, embezzlement of huge amount, complicity of accused as
well as the rival submissions advanced by the learned counsel for the
parties and without expressing any opinion on the merits of the case, I
am not inclined to release the applicant on bail.
17. Accordingly, the bail application of the applicant is rejected.
18. However, it is directed that every endeavor shall be made by the
trial court to conclude the trial expeditiously, if there is no other legal
impediment, within a period of one year from the date of production
of a certified copy of this order.
19. It is clarified that the observations made herein are limited to
the facts brought in by the parties pertaining to the disposal of bail
application and the said observations shall have no bearing on the
merits of the case during trial.
Order Date :- 29.4.2022
Siddhant
(Justice Krishan Pahal)
No comments:
Post a Comment