Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1148 OF 2023
[Arising out of Special Leave Petition (Criminal)
No. 295 of 2023]
| Central Bureau of Investigation | … Appellant |
| VERSUS | |
| Santosh Karnani & Anr. | … Respondents |
WITH
CRIMINAL APPEAL NO. 1149 OF 2023
[Arising out of Special Leave Petition (Criminal)
No. 724 of 2023]
| Rupesh Balwantbhai Brambhatt | … Appellant |
| VERSUS | |
| Santosh Karnani & Ors. | …Respondents |
JUDGMENT
Surya Kant, J.
1. Leave granted.
The Appellants in the two Criminal Appeals,
2.
the Central Bureau of Investigation & Rupesh
Balwantbhai Brambhatt (hereinafter, “complainant”)
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2023.04.17
17:04:04 IST
Reason:
th
respectively, are aggrieved by the order dated 19
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 1 of 37
December, 2022 passed by the High Court of
Gujarat at Ahmedabad allowing the anticipatory bail
application filed by Respondent No. 1 in connection
with FIR registered as C.R. No. RC0292022A0011 of
2022 before CBI/ACB/Gandhinagar Police Station,
District Gandhinagar for the offence under Section 7
of the Prevention of Corruption Act, 1988 as
amended in 2018.
BACKGROUND
3. The complainant is a businessman engaged in
the construction business that goes by the name:
Safal Construction Pvt. Ltd. In February 2019,
Respondent No. 1, an IRS Officer, posted as
Additional Commissioner of Income Tax,
Ahmedabad, conducted a survey for the financial
year 201819 under Section 133A of the Income Tax
Act, 1961 against Safal Construction Pvt. Ltd.
whereunder the group disclosed an additional
income of Rs. 50 crores.
4. Thereafter, in September 2021, search and
seizure action was initiated by the Investigation
Wing of Income Tax Department, Ahmedabad
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 2 of 37
against Safal Construction Pvt. Ltd. Following these
searches, some papers related to the complainant’s
business were seized and the Central Circle,
Range1 Division initiated the procedure for raising
a demand notice. It is the complainant’s case that
he found out that Respondent No. 1 was handling
his case and would be preparing the appraisal
memo. Subsequently, the complainant and
Respondent No. 1 met frequently in connection with
the case and it is alleged that during these
interactions, Respondent No. 1 threatened to ruin
the complainant’s business and demanded illegal
gratification.
th
5. On 29 September, 2022, Respondent No. 1
allegedly contacted the complainant and told him to
rd
meet him on 3 October, 2022. Accordingly, the
complainant met Respondent No. 1 at the Income
Tax Office where Respondent No. 1 demanded illegal
gratification of Rs. 30 lakhs to help the complainant
with his case. This conversation was recorded by the
complainant on a Digital Voice Recorder which has
been handed over to the investigating authorities
and a transcript of the same has also been provided
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 3 of 37
to this Court. The complainant was directed to
deposit the amount in the account of one Vardhman
in the Dhara Angadia Firm.
6. The complainant lodged a complaint the next
morning with ACB Police Station, Ahmedabad city at
07:15 hours and a trap was then laid. The
complainant’s employee was sent to the Angadia
firm with the bribe money amounting to Rs. 30
lakhs along with personnel from the ACB trap team.
Upon depositing Rs. 30 lakhs with Dhara Angadia
firm, the complainant contacted Respondent No. 1
through WhatsApp call which was recorded by the
ACB team wherein Respondent No. 1 acknowledged
payment of the amount. Immediately thereafter, one
ACB team went to detain and arrest Respondent
No. 1, who along with some staff members, is
alleged to have physically assaulted the ACB team
and escaped from the office due to the ensuing
chaos. It is also claimed that Respondent No. 1,
while escaping from the office, handed over his
mobile phone to a colleague. Simultaneously,
another ACB team recovered the bribe amount
deposited with Dhara Angadia.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 4 of 37
7. FIR No. 12/2022 was thus, registered against
Respondent No. 1 under Sections 7, 13(1) and 13(2)
of the Prevention of Corruption Act, 1988 on
th
4 October, 2022.
8. Owing to the gravity of the case, on
th
12 October, 2022, the case was transferred to the
Central Bureau of Investigation (hereinafter, “CBI”)
and FIR No. 12/2022 was reregistered as C.R. No.
RC0292022A0011 of 2022 under Section 7 of the
Prevention of Corruption Act, 1988. The FIR records
that Respondent No. 1 evaded arrest by the ACB
team and was still at large at the time of
reregistration of the FIR.
Thereafter, a notice under Section 41A, Code of
9.
Criminal Procedure (hereinafter, “CrPC”) was issued
to Respondent No. 1 calling upon him to appear
before the CBI but Respondent No. 1 failed to
th
respond. On 17 October, 2022, Respondent No. 1
wrote a letter to the Investigating Officer that he had
suffered severe anxiety & depression due to the
allegations levelled against him and had, thus, gone
to his home state of Rajasthan for medical
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 5 of 37
treatment. He sought four days’ time to join the
investigation.
10. During investigation Smit Thakkar, owner of
Dhara Angadia firm, informed the authorities that
the illegal gratification was deposited in the account
of one Malav Ajitbhai Mehta. It is also claimed that
prior to the deposit of the amount, Malav Mehta
informed Smit Thakkar that Rs. 30 lakhs would be
deposited in the account and would have to be
transferred to another person on the same day.
11. Another notice under Section 41A was issued
to Respondent No. 1 and again, he failed to appear
th
before the CBI. On 26 October, 2022, Respondent
No. 1 again sought one week’s time to appear before
the Investigating Officer vide a communication sent
from the email ID of Blue Heaven Hotel, Jaipur.
Subsequently, some more Section 41A notices were
issued to Respondent No. 1, to which he sought
more time to join the investigation on various
grounds. He simultaneously preferred an
application for grant of anticipatory bail.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 6 of 37
rd
12. By an order dated 3 November, 2022, the City
Civil & Sessions Court at Ahmedabad rejected
Respondent No. 1’s application for anticipatory bail.
The Special Judge CBI Court No. 3 observed that
Respondent No. 1 instead of cooperating with the
investigating agency, had absconded and got himself
admitted in a hospital in Rajasthan to evade the
process of law. Some of the observations made by
the Special Judge, CBI Court, are to the following
effect:
“Thus, the ground of ill health pleaded by
the Learned Advocate for the applicant
would hold no ground as this Court is of a
candid opinion that the applicant instead
of cooperating with the Investigating
Agency had absconded and had got himself
admitted in hospital at his native in
Rajasthan with a view to evade the process
of law.
… … …
In view of the aforesaid facts and
circumstances, this Court is of a candid
opinion that custodial interrogation of the
present applicant is a must to reach to
unearth the larger conspiracy. It is
necessary to unveil the modus operandi
adopted by the applicant in committing the
larger conspiracy and without
interrogation, it would be impossible to
collect the relevant evidence resulting into
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 7 of 37
incomplete investigation. It is also crystal
clear that the applicant with a view to avoid
arrest has filed the present application and
therefore, instead of cooperating in the
investigation have tried to thwart the ∙same
and thus, it can be said that the applicant
is not cooperating in the investigation.
… … …
This Court also cannot lose sight of the fact
that investigation in the matter is still
under progress and releasing the applicant
at this premature stage would pave way for
the applicant to influence the investigation,
hamper the witnesses and tamper the
evidence.”
13. The Court eventually held that custodial
interrogation of Respondent No. 1 was necessary to
reach the root of the matter.
14. Aggrieved by the order of the Special Judge,
CBI Court, Respondent No. 1 applied for
anticipatory bail before the High Court of Gujarat.
nd
Meanwhile, on 22 November, 2022, the Court of
Special CBI Judge issued a nonbailable warrant
against Respondent No. 1.
15. The High Court, vide impugned order dated
th
19 December, 2022, granted anticipatory bail to
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 8 of 37
Respondent No. 1. The High Court observed that
there is a doubt regarding the acceptance of illegal
gratification, as it was deposited in the account of
Vardhman in Dhara Angadia firm and there is no
evidence with respect to acceptance of the amount
by Respondent No. 1. The reasons on the basis of
which the High Court proceeded to grant
anticipatory bail are recorded in paragraph 12 of its
order, which states as follows:
“12. This Court has considered following
aspects;
(i) The FIR is registered on
12.10.2022 for the offence which is
alleged to have taken place on
04.10.2022.
(ii) Learned APP under instructions
of IO is unable to bring on record
any special circumstances against
the applicant.
(iii) The role attributed to the
applicant accused;
(iv) That the applicant is a Additional
Income Tax Commissioner and no
any other criminal antecedents
against him;
(v) There is creating serious doubt
about demand and acceptance of the
amount;
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 9 of 37
(vi) There is no discovery or recovery
from the applicant;”
The High Court further directed that despite
16.
grant of anticipatory bail, CBI could apply for police
remand of Respondent No. 1 and that if the same
was granted by the competent Magistrate,
Respondent No. 1 would be set free immediately
upon completion of the police remand. The relevant
part of the impugned order to this effect reads as
under:
“16. Despite this order, it would be open for
the Investigating Agency to apply to the
competent Magistrate, for police remand of
the applicant. The applicant shall remain
present before the learned Magistrate on
the first date of hearing of such application
and on all subsequent occasions, as may
be directed by the learned Magistrate. This
would be sufficient to treat the accused in
the judicial custody for the purpose of
entertaining application of the prosecution
for police remand. This is, however, without
prejudice to the right of the accused to seek
stay against an order of remand, if,
ultimately, granted and the power of the
learned Magistrate to consider such a
request in accordance with law. It is
clarified that the applicant even if,
remanded to the police custody, upon
completion of such period of police remand,
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 10 of 37
shall be set free immediately, subject to
other conditions of this anticipatory bail
order. At the trial, the Trial Court shall not
be influenced by the prima facie
observations made by this Court while
enlarging the applicant on bail. Rule is
made absolute. Direct service is permitted.”
17. Following the High Court’s directions,
Respondent No. 1 joined the investigation and
appeared on three days but is stated to have not
produced his mobile phone(s) though he was asked
to do so repeatedly. The CBI, then, applied for police
th
remand of Respondent No. 1 and, on 30 December,
2022, the Special Judge, CBI Court No. 3 partly
allowed the said application. The Court, upon
perusal of the case diary, observed that the
allegations against Respondent No. 1 seem well
founded and that remand is necessary for the
purpose of investigation to collect the missing link of
evidence and to unearth the larger conspiracy. The
application was allowed in the following terms:
“The Accused Mr. Santosh Kumar Karnani
is directed to appear and surrender himself
to the custody of Investigating Officer,
CBI /ACB/ Gandhinagar from 10.00 am to
7.00 pm on dated 31/12/2022,
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 11 of 37
01/01/2023, 02/01/2023 and on
03/01/2023, in connection with RC
0292022A0011 GNR. It is further directed
that accused shall be set free at 7.00 pm
on respective dates.
Further as per the direction of Honourable
Gujarat High Court, upon completion of
aforesaid period of remand, the accused be
set free upon expiry of remand period and
report be submitted to this Court along
with copies of medical examination paper/
Certificate. The case diary be handed back
to the Investigating Officer.
The accused is hereby directed to give full
cooperation to Investigating officer to carry
out proper investigation of this case.
The Investigating Officer is hereby directed
to strictly adhere to the guidelines laid
down by the Hon’ble Supreme Court of
India in case of D.K. Basu vs. State of
reported in and
W.B. AIR 1997 SC 610
Honourable Gujarat High Court, while the
accused is in custody and refrain from any
custodial illtreatment or torture”
18. CBI, thereafter, preferred an application for
suspension of the aforesaid order before Special CBI
Court on the ground that they wish to challenge it
before the High Court of Gujarat. Hence, Special
Judge, CBI Court No. 3 stayed operation of its order
th
till 7 January, 2023. This was later extended by
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 12 of 37
the Court till the final disposal of the Special Leave
Petition (Crl.) No. 295 of 2023.
SUBMISSIONS
19. Assailing the impugned order granting
anticipatory bail to Respondent No. 1, Mr. Tushar
Mehta, learned Solicitor General of India on behalf
of the CBI made the following submissions:
i. Considering the gravity and seriousness of
the offence and the position held by
Respondent No. 1, the High Court erred in
exercising its discretionary jurisdiction
under Section 438 of the CrPC;
ii. The High Court did not appreciate the
material collected against Respondent No. 1
which establishes a clear demand &
acceptance of bribe by him in view of his
voice recordings seeking an amount of Rs.
30 lakhs from the complainant and
acknowledging payment thereof. The
relevant voice recordings have been
analysed and the voices have been identified
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 13 of 37
to be those of Respondent No. 1 and the
complainant;
iii. The High Court grossly erred in observing
that the FIR was registered after a long delay
th
on 12 October, 2022. On that day, the CBI
had only reregistered FIR No. 12/2022
which was initially registered by ACB Police
th
Station on 4 October, 2022.
iv. Respondent No. 1’s name was included in
the ‘Agreed List’ in respect of Group A
officers of the Income Tax Department for
the year 2015 and thus, his service record is
not clean;
Respondent No. 1 evaded arrest when the
v.
ACB team raided his office after he had
acknowledged the payment of the bribe
money over a WhatsApp call. Respondent
No. 1 & his colleagues used criminal force to
deter the ACB team from effecting arrest and
collecting material evidence. While doing so,
Respondent No. 1 handed over his mobile
phone, which is a crucial piece of evidence,
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 14 of 37
to his colleague to ensure that the same was
not seized by the investigating agency. This
has been recorded in the CCTV cameras of
the office;
The audio recordings and video footage have
vi.
been examined by the Directorate of
Forensic Science, Gujarat certifying their
genuineness. The report concludes that
there are no signs of alteration in the same;
vii. Respondent No. 1 falsely pleaded that he
had taken casual leave from the competent
authority and misled the investigating
agency by sending a reply to the notice
issued under Section 41A, CrPC through the
email ID of Blue Heaven Hotel, Jaipur. Upon
investigation, it was found that Respondent
No. 1 had never stayed at that hotel;
viii. During investigation, reliable evidence has
come on record to show that other Income
Tax officials were hands in glove with
Respondent No. 1, which is also evident
from the active role played by some officials
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 15 of 37
in helping Respondent No.1 to avoid arrest
th
by the ACB on 4 October, 2022. Custodial
interrogation is highly necessary to
ascertain the deeper plot at play and to
examine the involvement of other Income
Tax officials;
ix. Respondent No. 1 appeared before the CBI
after the protection granted by the High
Court but did not handover his mobile
handsets which are a crucial piece of
evidence and is, thus, not cooperating with
the investigation. Custodial interrogation is
necessary in this case to take the
investigation to its logical conclusion;
Reliance has been placed on the judgment of
x.
this Court in
State Rep. By The CBI v.
1
Anil Sharma to argue that “custodial
interrogation is qualitatively more
elicitationoriented than questioning a
suspect who is well ensconced with a
favourable order under Section 438 of the
1 (1997) 7 SCC 187.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 16 of 37
Code. In a case like this, effective
interrogation of a suspected person is of
tremendous advantage in disinterring many
useful information and also materials which
would have been concealed. Success in such
interrogation would elude if the suspected
person knows that he is well protected and
insulated by a prearrest bail order during
the time he is interrogated. Very often
interrogation in such a condition would
reduce to a mere ritual.”;
xi. Reliance has also been placed on the
decisions in
Prem Shankar Prasad v.
2
,
State of Bihar State of Madhya
3
and
Pradesh v. Pradeep Sharma Lavesh
4
to urge that
v. State (NCT of Delhi)
anticipatory bail should not be granted to an
absconder;
xii. The High Court passed an unusual order
directing that the investigating agency would
2 2021 SCC OnLine SC 955.
3 (2014) 2 SCC 171.
4 (2012) 8 SCC 730.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 17 of 37
be at liberty to apply to the competent
Magistrate for police remand of Respondent
No. 1 and in the same breath, prevented
custodial interrogation of the main suspect.
Supporting the above submissions on behalf of
20.
the CBI, Mr. Maninder Singh, learned Senior
Counsel appearing for the complainant, made
following additions:
i. The High Court ignored the observations &
findings of the learned Sessions Court
recorded while rejecting Respondent No. 1’s
application for anticipatory bail. The said
Court had gone through the material on
record, including the case papers, and then
only observed that custodial interrogation
was necessary to enable the investigation
agency to reach the core of the matter.
ii. The High Court failed to appreciate the
unequivocal demand of Rs. 30 lakhs made
by Respondent No. 1, which was recorded by
the complainant on a Digital Voice Recorder
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 18 of 37
and acceptance of that bribe money through
Dhara Angadia Firm.
21. On the other hand, Mr. Mukul Rohatgi and Mr.
Shyam Divan, learned Senior Counsels strongly
refuted the insinuations made against Respondent
No. 1 and defended the High Court order granting
prearrest bail with the following submissions:
i. The allegations levelled against Respondent
No. 1 are false and concocted. Respondent
No. 1 never raised any demand for
gratification as alleged by the complainant.
Respondent No. 1 had no connection with
the search and seizure action taken against
the complainant’s company in September
2021 or with the preparation of the
appraisal report. Respondent No. 1 is not
the Assessing Officer of the complainant’s
case and the matter is entrusted to some
other officer;
ii. There is no evidence of demand or
acceptance of bribe which are sine qua non
for establishing the offence. In trap cases
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 19 of 37
under Section 7 of Prevention of Corruption
Act, the conversation of demand is to be
recorded by the complainant in the presence
of independent panchas and the trap laying
Officer has to ensure that there is no
possibility of any tampering. In the present
case, the voice recording of the alleged
demand has been done without any police
involvement and thus, holds no evidentiary
value. The alleged deposit of the amount
was made in an Angadia firm which is
unknown to Respondent No. 1 and cannot
be termed as acceptance of bribe.
Respondent No. 1 has no connection with
Malav Ajitbhai Mehta, who is stated to be
the owner of the account wherein the
amount was deposited and Respondent No.
1 was not present at the site of the Angadia
firm;
iii. The complainant has animosity with
Respondent No. 1 due to the past survey
action taken for the financial year 201819
against his company which led to disclosure
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 20 of 37
of additional income of Rs. 50 crores. This
fact has not been disclosed in the FIR. The
complainant has falsely implicated
Respondent No. 1 due to his apprehensions
that Respondent No. 1 will impose huge tax
liability on him & his company;
iv. A perusal of FIR No. 12/2022 shows that it
th
was registered on 4 October, 2022 at 9:30
pm while the acts of the alleged demand,
laying down of the trap, deposit of money at
Dhara Angadia and the raid at Respondent
rd
No. 1’s office occurred on 3 October, 2022
th
and during the daytime on 4 October,
2022. Additionally, there is no record of the
complainant meeting police officials prior to
the registration of FIR. The delay in
registration of FIR which is more than 24
hours after the alleged demand of illegal
gratification, has not been explained;
v. Only Respondent No. 1 is sought to be
arrested by the CBI. The owner or employees
of Dhara Angadia firm have not been
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 21 of 37
arrested and the High Court order granting
anticipatory bail to Malav Mehta has not
been challenged by the CBI before this
Court;
vi. CBI has misused the provisions of Section
41A of the CrPC to arrest Respondent No. 1.
A bare perusal of the provision and the
guidelines laid down by this Court in
5
suggest
Arnesh Kumar v. State of Bihar
that a notice under Section 41A would be
issued only when the investigating agency
does not require the custody of a person. In
the present case, notices under Section 41A
were issued post the raid conducted by ACB
team at Respondent No. 1’s office by which
time they had decided to arrest him;
vii. As per settled law of this Court, Respondent
No. 1 cannot be termed as an absconder as
he was availing his legal remedies. However,
despite this, the investigating agency
published notices in the media and pasted
5 (2014) 8 SCC 273.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 22 of 37
‘Wanted’ posters with Respondent No. 1’s
name, photo and designation at various
places, which indicates mala fides of the
investigation agency;
viii. The bona fides of Respondent No. 1 are
evident from his conduct post the grant of
anticipatory bail. As directed by the High
Court, Respondent No. 1 appeared before
the CBI on at least four occasions, as and
when called. Respondent No. 1 has also
voluntarily given his voice samples. Given
the fact that Respondent No. 1 is
cooperating with the investigation, custodial
interrogation is not required. The High
Court erred in directing that, despite the
grant of anticipatory bail, the investigating
agency would be at liberty to apply to the
competent Magistrate for police remand.
This part of the order was to the
disadvantage of Respondent No. 1 but he
abided by the same and appeared before the
Court when the CBI applied for police
remand;
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 23 of 37
ix. Respondent No. 1 has an impeccable service
record as is evident from his posting to one
of the most sensitive assignments in the
department. Such postings are only given to
senior officers with clean images. His
integrity is beyond doubt and he has an
unblemished past record. There is no case of
disproportionate assets against Respondent
No. 1;
x. Section 17A of the Prevention of Corruption
Act, 1988 as amended in 2018, provides for
a bar on any enquiry, inquiry or
investigation by a police officer into an
alleged offence by a public servant, where
the alleged offence relates to any decision
taken or recommendation made in exercise
of official functions or duties, without the
previous approval of the competent
authority. In this case, the investigating
agency has not complied with the
mandatory procedure of Section 17A and
has initiated investigation on the complaint
without any prior approval of the Competent
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 24 of 37
Authority. The breach of these mandatory
conditions vitiates the proceedings initiated
against Respondent No. 1;
xi. In these circumstances, the High Court has
rightly granted anticipatory bail to
Respondent No. 1 and has provided
adequate reasoning for the same in
paragraph 12 of the impugned order;
xii. Cancellation of bail has to be dealt with on a
completely different footing in comparison to
refusal of bail and ‘cogent and
overwhelming’ reasons are necessary to
cancel bail once granted. Reliance has been
placed in this regard on
Dolat Ram v.
6
wherein a twojudge
State of Haryana
Bench of this Court held that:
“4. Rejection of bail in a nonbailable
case at the initial stage and the
cancellation of bail so granted, have
to be considered and dealt with on
different basis. Very cogent and
overwhelming circumstances are
necessary for an order directing the
cancellation of the bail, already
6 (1995) 1 SCC 349.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 25 of 37
granted. Generally speaking, the
grounds for cancellation of bail,
broadly (illustrative and not
exhaustive) are: interference or
attempt to interfere with the due
course of administration of justice or
evasion or attempt to evade the due
course of justice or abuse of the
concession granted to the accused in
any manner. The satisfaction of the
court, on the basis of material placed
on the record of the possibility of the
accused absconding is yet another
reason justifying the cancellation of
bail. However, bail once granted
should not be cancelled in a
mechanical manner without
considering whether any supervening
circumstances have rendered it no
longer conducive to a fair trial to
allow the accused to retain his
freedom by enjoying the concession of
bail during the trial.”
xiii. No supervening circumstances for
cancellation of bail have been pointed out by
the CBI or the complainant.
ANALYSIS
22. The law on grant of anticipatory bail has been
summedup by this Court in Siddharam
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 26 of 37
7
Satlingappa Mhetre v. State of Maharashtra ,
after due deliberation on the parameters evolved by
the Constitution Bench in
Gurbaksh Singh Sibbia
8
. This Court held thus:
v. State of Punjab
“112. The following factors and parameters
can be taken into consideration while
dealing with 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;
7 (2011) 1 SCC 694.
8 (1980) 2 SCC 565.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 27 of 37
(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 overimplication 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.”
23. In Sushila Aggarwal v. State (NCT of
9
Delhi) , the Constitution Bench reiterated that while
9 (2020) 5 SCC 1.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 28 of 37
deciding applications for anticipatory bail, courts
should be guided by factors like the nature and
gravity of the offences, the role attributed to the
applicant, and the facts of the case.
The timetested principles are that no
24.
straitjacket formula can be applied for grant or
refusal of anticipatory bail. The judicial discretion of
the Court shall be guided by various relevant factors
and largely it will depend upon the facts and
circumstances of each case. The Court must draw a
delicate balance between liberty of an individual as
guaranteed under Article 21 of the Constitution and
the need for a fair and free investigation, which
must be taken to its logical conclusion. Arrest has
devastating and irreversible social stigma,
humiliation, insult, mental pain and other fearful
consequences. Regardless thereto, when the Court,
on consideration of material information gathered by
the Investigating Agency, is prima facie satisfied that
there is something more than a mere needle of
suspicion against the accused, it cannot jeopardise
the investigation, more so when the allegations are
grave in nature.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 29 of 37
25. Keeping these principles in mind, we proceed
to evaluate the rival submissions. At the outset, it is
to be noted that the High Court fell in a factual error
in observing that FIR was registered on
th
12 October, 2022 for the offence alleged to have
rd th
taken place on 3 and 4 October, 2022. The FIR
was registered by the ACB against Respondent No. 1
th
on 4 October, 2022 under Sections 7, 13(1) and
13(2) of the Prevention of Corruption Act, 1988 and
th
was reregistered by CBI on 12 October, 2022.
26. Further, the primary ground assigned by the
High Court to grant anticipatory bail to Respondent
No. 1 is that there was doubt as to the acceptance of
the bribe amount since records of Dhara Angadia
firm had not been produced establishing any link
between Respondent No. 1 & the firm.
The CBI has produced the case diary which
27.
contains the statement made by Smit Thakkar, who
handles Dhara Angadia firm. He has clearly stated
that Malav Mehta was the owner of Vardhman
account and had informed him that 30 lakhs rupees
th
would be deposited in his account on 4 October,
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 30 of 37
2022, which in turn had to be sent to someone else.
The purported recording of conversation between
the complainant and Respondent No. 1 wherein
Respondent No. 1 thanked the complainant, after
the deposit of amount in the Vardhman account, is
a reasonable link to connect Respondent No. 1 with
the deposit of illegal gratification in Dhara Angadia
firm, thereby prima facie showing acceptance
thereof.
28. Regarding the alleged discrepancy of delay of
more than 24 hours in the registration of FIR, we
find from the material produced before us that the
complainant started narrating the complaint at
07:15 hours and it ended at 08:00 hours on
th
4 October, 2022. The panchnama, annexed in the
case diary, provides details of the trap laid by the
ACB and lists all the activities of the ACB team on
that day, thereby dispelling any doubts of mala
fides on the part of the investigating agencies.
29. We have also gone through the statement of
Mr. Vivek Johri, Assistant Commissioner of Income
Tax who has stated that Respondent No. 1 handed
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 31 of 37
over his mobile phone to him before leaving the
office, which Mr. Johri later threw away.
30. The manner in which Respondent No. 1
forcefully evaded his arrest with the help of his
colleagues and got the evidence destroyed, is a
strong circumstance to indicate his complicity at
this stage though a clear picture would emerge only
on completion of investigation.
31. The nature and gravity of the alleged offence
should have been kept in mind by the High Court.
Corruption poses a serious threat to our society and
must be dealt with iron hands. It not only leads to
abysmal loss to the public exchequer but also
tramples good governance. The common man
stands deprived of the benefits percolating under
social welfare schemes and is the worst hit. It is
aptly said, “Corruption is a tree whose branches are
of an unmeasurable length; they spread everywhere;
and the dew that drops from thence, Hath infected
some chairs and stools of authority.” Hence, the
need to be extra conscious.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 32 of 37
32. From the material placed on record, it seems
that prima facie , the allegations against Respondent
No. 1 cannot be brushed aside lightly at this stage.
There appears to be a wellorganised syndicate
comprising officers and officials of the Income Tax
Department, businessmen and Hawala traders, who
are in tandem. Such a nexus needs to be unearthed
through an unimpaired and unobstructed
investigation.
33. The contention that prior approval of
investigation, as mandated under Section 17A of
Prevention of Corruption Act, has not been obtained
and thus, the proceedings initiated against
Respondent No. 1 stand vitiated, has no legal or
factual basis. Section 17A merely contemplates that
police officers shall not conduct any enquiry, inquiry
or investigation into any offence alleged to have been
committed by a public servant where the alleged
offence is relatable to any recommendation made or
decision taken in discharge of official functions or
duties, without the previous approval of the
competent authority. The first proviso to the section
states that such approval is not necessary in cases
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 33 of 37
involving arrest of the person on the spot on the
charges of accepting undue advantage.
34. As may be seen, the first proviso to Section
17A refers to cases wherein a public servant is
charged with acceptance of an undue advantage or
attempt thereof. A prior approval or sanction to
investigate such an officer in a trap case is likely to
defeat the very purpose of trap and the
investigation, which is not the underlying intention
of the legislature. The investigation against
Respondent No. 1, being an accused of demanding a
bribe, did not require any previous approval of the
Central Government. That apart, the accusation
against Respondent No. 1 does not revolve around
any recommendations made or decisions taken by
him in his quasijudicial or administrative capacity.
35. It is true that cancellation of bail must be done
only for cogent and overwhelming reasons.
Nevertheless, setting aside an unjustified order
granting bail is distinct from cancellation of bail.
This Court would not, invariably intervene into the
judicial discretion exercised by the High Court while
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 34 of 37
granting bail to an accused. All that to be ensured is
that the High Court exercises its discretion
judiciously, cautiously and strictly in conformity
with the basic principles laid down by this Court
from time to time in a series of decisions.
36. The Constitution Bench in Sushila Aggarwal
(supra) observed that:
“92.11. The correctness of an order
granting bail, can be considered by the
appellate or superior court at the behest of
the State or investigating agency, and set
aside on the ground that the court granting
it did not consider material facts or crucial
circumstances.”
SUMMATION
37. Having considered the nature of allegations,
material on record and the settled legal principles
on grant of anticipatory bail, we are of the view that,
howsoever hard or harsh it may be, the High Court
ought to have refrained itself from extending
protection against arrest to Respondent No. 1 in
exercise of its discretionary jurisdiction under
Section 438 of the CrPC.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 35 of 37
38. Assuming Respondent No. 1 had some valid
apprehensions that the actions of ACB (State Police)
were actuated with extraneous reasons, he can no
longer say so once the investigation has been
transferred to CBI. We do not find any allegation of
personal vendetta, victimisation, bias or ulterior
motive against the Central Agency. In any case, CBI
is expected to carry out a free, fair and
dispassionate investigation with faithful observance
to the rights of an accused, who is subjected to
custodial interrogation.
The appeals are, accordingly, allowed. The
39.
impugned judgment and order of the High Court
th
dated 19 December, 2022 is set aside and the
anticipatory bail application of Respondent No. 1 is
dismissed. As a consequence thereto, the order
th
dated 30 December, 2022 passed by the Special
Judge, CBI Court No. 3 partly allowing CBI’s
application for remand is also set aside.
40. We clarify that this Court has expressed only
opinion on the merits of the allegations
prima facie
for the limited purpose to refuse or grant prearrest
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 36 of 37
bail. If Respondent No. 1 moves an application for
grant of regular bail before an appropriate Court,
the same shall be considered on its own merits and
in accordance with law, uninfluenced by the
observations made hereinabove.
41. The appeals are disposed of in the above
terms.
42. Pending application(s), if any, stand disposed
of as well.
…....…………………..J.
(SURYA KANT)
…....…………………..J.
(J.K. MAHESHWARI)
New Delhi;
April 17, 2023.
Crl. A. No._____ of 2023 @ SLP (Crl.) No. 295 of 2023 etc. Page 37 of 37