Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 296/2012
th
% Reserved on: 8 May, 2012
th
Decided on: 15 May, 2012
A KRISHNA REDDY ..... Petitioner
Through: Mr. N.K. Kaul, Sr. Advocate with Mr.
G. Tushar Rao, Mr. Rajesh Anand,
Mr. Akhand Pratap and Mr. Vibhu,
Advocates.
versus
CBI ..... Respondent
Through: Mr. Dayan Krishnan, Spl. Counsel
with Mr. Nikhil A. Menon, Advocate.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition the Petitioner seeks bail in RC No. DAI/2010/A/0044
under Section 120B read with Section 420 IPC and Section 13(2) read with
13(1)(d) of the Prevention of Corruption Act, 1988 (in short PC Act).
2. Learned counsel for the Petitioner contends that the Petitioner has
th
been in custody since 20 August, 2011. The charge-sheet has already been
filed. Co-accused who have major role have already been granted bail.
However, the Learned Trial Court dismissed the bail application of the
Petitioner. Even if the allegations as set out in the FIR are taken on their
face value, the only allegation against the Petitioner is that he raised bogus
wage bills amounting to Rs.3,11,60,000/-. On the face of it the said
allegation is incorrect as everybody knew that because of paucity of time
work had to be done at war footing and the Petitioner managed to collect the
BAIL APPLN. 296/2012 Page 1 of 7
labourers from various States and got the work done in a record time so that
the event was a success. The bail application of the Petitioner has been
dismissed by the Learned Special Judge for the reason that the Petitioner
indulged in influencing the witness. The Petitioner denies having influenced
the prosecution witness. Even assuming the facts against the Petitioner, the
said prosecution witness Harish Kumar Walia has not alleged anything
against the Petitioner, rather he has stated that 300-400 persons were
arranged for AKR constructions from Hyderabad and the said prosecution
witness even as per his statement under Section 161 Cr.P.C. is not a witness
to the payments made. As regards the allegations of abscondence leveled by
the CBI, it is stated that mere abscondence is not enough to deny the bail.
Further, the Petitioner was only availing the remedies available to him and
after exhausting remedies available to him upto the Hon’ble Supreme Court,
he surrendered before the Learned Special Judge. Further, even if an
accused is not available and non-bailable warrants are issued to arrest him,
the same cannot be a ground to deny him bail for all times to come.
Reliance is placed on Sanjay Chandra Vs. CBI (2012) 1 SCC 40; R.
Vasudevan Vs. CBI 166 (2010) DLT 583; Subhash @ Nati Vs. State Govt. of
th
NCT of Delhi Bail Application No. 431/2010 decided 9 April, 2010 and
th
Ruchi Talreja Vs. State Bail Application No. 1830/2011 decided on 13
March, 2012 . The trial is likely to take some time and thus bail be granted to
the Petitioner.
3. Learned counsel for the CBI on the other hand contends that the
availability of the accused for trial and not influencing the witness is a twin
essential requirements to be seen at the time of grant of bail. The Petitioner
BAIL APPLN. 296/2012 Page 2 of 7
has failed on both the counts. The Petitioner initially joined the investigation
th th
for two dates i.e. 11 February, 2011 and 12 February, 2011. He was also
th
asked to join the investigation on 13 February, 2011 when instead of
appearing he sent a letter that his wife was unwell. When a raid was
st
conducted at the house of the Petitioner at Hyderabad on 31 March, 2011,
the Petitioner was not found at his house but was stated to have gone to
Madhya Pradesh. The Petitioner had filed an anticipatory bail application
before the Hon’ble High Court of Andhra Pradesh which was dismissed vide
th
order dated 28 March, 2011. The CBI clarified its stand that the Petitioner
was a suspect and not merely a witness. Thus, the contention that the
Petitioner was joining the investigation and was only a witness, as he was
th
not named in the FIR, is wholly unfounded. On 29 March, 2011
application for issuance of non-bailable warrants was filed by the CBI before
rd
the Learned Special Judge which was allowed, and on 23 May, 2011 the
Learned Special Judge declared the Petitioner a proclaimed offender in terms
of Section 82 Cr.P.C. The Petitioner filed anticipatory bail applications
th
before the Special Judge and this Court which were dismissed. On 9
August, 2011 the Learned Special Judge was pleased to pass an order for
th
attachment of the immovable properties of the Petitioner. On 17 August,
2011 the Petitioner withdrew the Special Leave petition before the Hon’ble
th
Supreme Court and surrendered before the Learned Trial Court on 20
August, 2011. In view of the serious allegations against the Petitioner and
the fact that the Petitioner absconded, declared a proclaimed offender and
was found tampering with the evidence, no case for grant of bail is made out.
BAIL APPLN. 296/2012 Page 3 of 7
4. I have heard learned counsel for the parties. Briefly the case of the
prosecution is that though the Petitioner claims that he entered into a contract
for laying down underground cables with M/s. Gem International, however
he could neither produce the persons who did the work nor the muster rolls
and only invoices and bills raised were shown. Statement of witnesses have
been recorded, who have shown that they in fact did the cabling work for the
Timing, Scoring and Result (TSR system) in the Commonwealth Games.
Further statements of PW-28 and PW-31 recorded by the CBI shows that no
work was done by the Petitioner’s company for laying the cables. The
Petitioner has not been able to show documents to substantiate his claim that
he arranged the labour, which performed the work. It is apparent that the
Petitioner’s company was used as a front office for siphoning the money.
No doubt, the Petitioner is involved in a part of the entire controversy which
related to grant of tender to Swiss Timing Limited for the Timing, Scoring
and Result system to be made operated at Commonwealth Games ousting all
other competitors.
5. Undoubtedly, the main accuseds have already been granted bail.
However, in the case of main accuseds there were no allegation of either
absconsion or tampering with the evidence. As regards absconsion, it may
be noted that the Petitioner surrendered after availing his remedies upto the
Hon’ble Supreme Court and in the mean time he was declared a proclaimed
offender and his properties were attached. There can be no dispute that
every person has a right to access to justice. Thus, the Petitioner not
surrendering to custody while he was seeking legal remedies cannot be
treated adverse to him. However, the primary reason for the rejection of
BAIL APPLN. 296/2012 Page 4 of 7
Petitioner’s bail by the Learned Trial Court was the fact that the Petitioner
was found tampering with the evidence and influencing the witness. This
fact came to light at the time of hearing of the anticipatory bail application of
the Petitioner before the Learned Special Judge when one prosecution
witness was found assisting the counsel for the Petitioner to address
arguments. On pointing out by the Investigating Officer, the witness PW-10
Harish Kumar Walia stated that he was looking after the interest of the
Petitioner. At this stage it would be relevant to note the observations of the
th
Learned Special Judge in the order dated 15 June, 2011 passed at the time
of hearing of the bail application -
“20.As per the CBI, the accused/applicant is likely to influence
the witnesses if he is admitted to anticipatory bail at this stage.
The apprehension of CBI is not unfounded. During the course
of arguments a person assisting the Ld. Counsel for the accused
was pointed out by the IO as one of the witness of the
prosecution in this case. On inquiry he told that his name was
Harish Kumar Walia and he admitted that he was witness No.
10 on behalf of CBI in this case. On further inquiry as to why
he was present in the court on the said date with the Ld.
Counsel for the accused, he submitted that he was looking after
the work of accused/applicant in Delhi at the time of
Commonwealth Games and he also knew the partners of M/s
Gem International hence he was present in the Court with Ld.
Counsel for the accused. Then he submitted that he was ready
to withdraw from the Court and he walked out of the court.
This incident itself shows that even on the day when accused/
applicant A.K. Reddy has not been granted anticipatory bail,
one of the witness namely Harish Kumar Walia has been
already approached by him and the said witness was taking care
of the case of the accused/applicant in Court. I am of the
considered view that if this accused/applicant is granted
anticipatory bail there is strong likelihood that he will influence
BAIL APPLN. 296/2012 Page 5 of 7
the other witnesses also. Hence he is not entitled to
anticipatory bail.”
6. As per the statement of PW-10 Harish Kumar Walia he was employed
by the Petitioner before the Commonwealth Games for overseeing the work
of laying down of the cables. PW-10 himself has stated that it was a
temporary cable work and the job of PW-10 was to guide and supervise the
work of providing cable connectivity for the equipment and score boards and
one connection to OVR. PW-10 stated that his job was virtually temporary
in nature. It would be, thus, seen that despite the fact that the work had
concluded much ahead of October, 2010 when the Commonwealth Games
were held, PW-10 was still under the influence of Petitioner and was
watching his interest by assisting counsel at the time of hearing of the bail
application of the Petitioner.
7. As regards learned counsel for the Petitioner’s reliance on Sanjay
Chandra(supra) , it may be noted that though it is well settled that the pretrial
custody is not punitive in nature but necessity demands that some
unconvicted persons should be held in custody pending trial, in order to
secure their attendance and to ensure that they do not tamper with the
evidence.
8. I do not find any merit in the contention of the learned counsel for the
Petitioner that PW-10 does not state anything against the Petitioner, and thus
even if assuming that the Petitioner has influenced him the same would not
be detrimental to the prosecution case. The statement of PW-10 is not
exculpatory qua the Petitioner and thus in view of the fact that the Petitioner
BAIL APPLN. 296/2012 Page 6 of 7
was found influencing the witness, I do not find any ground to grant bail to
the Petitioner.
9. Petition is dismissed.
(MUKTA GUPTA)
JUDGE
MAY 15, 2012
‘ga’
BAIL APPLN. 296/2012 Page 7 of 7
+ BAIL APPLN. 296/2012
th
% Reserved on: 8 May, 2012
th
Decided on: 15 May, 2012
A KRISHNA REDDY ..... Petitioner
Through: Mr. N.K. Kaul, Sr. Advocate with Mr.
G. Tushar Rao, Mr. Rajesh Anand,
Mr. Akhand Pratap and Mr. Vibhu,
Advocates.
versus
CBI ..... Respondent
Through: Mr. Dayan Krishnan, Spl. Counsel
with Mr. Nikhil A. Menon, Advocate.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition the Petitioner seeks bail in RC No. DAI/2010/A/0044
under Section 120B read with Section 420 IPC and Section 13(2) read with
13(1)(d) of the Prevention of Corruption Act, 1988 (in short PC Act).
2. Learned counsel for the Petitioner contends that the Petitioner has
th
been in custody since 20 August, 2011. The charge-sheet has already been
filed. Co-accused who have major role have already been granted bail.
However, the Learned Trial Court dismissed the bail application of the
Petitioner. Even if the allegations as set out in the FIR are taken on their
face value, the only allegation against the Petitioner is that he raised bogus
wage bills amounting to Rs.3,11,60,000/-. On the face of it the said
allegation is incorrect as everybody knew that because of paucity of time
work had to be done at war footing and the Petitioner managed to collect the
BAIL APPLN. 296/2012 Page 1 of 7
labourers from various States and got the work done in a record time so that
the event was a success. The bail application of the Petitioner has been
dismissed by the Learned Special Judge for the reason that the Petitioner
indulged in influencing the witness. The Petitioner denies having influenced
the prosecution witness. Even assuming the facts against the Petitioner, the
said prosecution witness Harish Kumar Walia has not alleged anything
against the Petitioner, rather he has stated that 300-400 persons were
arranged for AKR constructions from Hyderabad and the said prosecution
witness even as per his statement under Section 161 Cr.P.C. is not a witness
to the payments made. As regards the allegations of abscondence leveled by
the CBI, it is stated that mere abscondence is not enough to deny the bail.
Further, the Petitioner was only availing the remedies available to him and
after exhausting remedies available to him upto the Hon’ble Supreme Court,
he surrendered before the Learned Special Judge. Further, even if an
accused is not available and non-bailable warrants are issued to arrest him,
the same cannot be a ground to deny him bail for all times to come.
Reliance is placed on Sanjay Chandra Vs. CBI (2012) 1 SCC 40; R.
Vasudevan Vs. CBI 166 (2010) DLT 583; Subhash @ Nati Vs. State Govt. of
th
NCT of Delhi Bail Application No. 431/2010 decided 9 April, 2010 and
th
Ruchi Talreja Vs. State Bail Application No. 1830/2011 decided on 13
March, 2012 . The trial is likely to take some time and thus bail be granted to
the Petitioner.
3. Learned counsel for the CBI on the other hand contends that the
availability of the accused for trial and not influencing the witness is a twin
essential requirements to be seen at the time of grant of bail. The Petitioner
BAIL APPLN. 296/2012 Page 2 of 7
has failed on both the counts. The Petitioner initially joined the investigation
th th
for two dates i.e. 11 February, 2011 and 12 February, 2011. He was also
th
asked to join the investigation on 13 February, 2011 when instead of
appearing he sent a letter that his wife was unwell. When a raid was
st
conducted at the house of the Petitioner at Hyderabad on 31 March, 2011,
the Petitioner was not found at his house but was stated to have gone to
Madhya Pradesh. The Petitioner had filed an anticipatory bail application
before the Hon’ble High Court of Andhra Pradesh which was dismissed vide
th
order dated 28 March, 2011. The CBI clarified its stand that the Petitioner
was a suspect and not merely a witness. Thus, the contention that the
Petitioner was joining the investigation and was only a witness, as he was
th
not named in the FIR, is wholly unfounded. On 29 March, 2011
application for issuance of non-bailable warrants was filed by the CBI before
rd
the Learned Special Judge which was allowed, and on 23 May, 2011 the
Learned Special Judge declared the Petitioner a proclaimed offender in terms
of Section 82 Cr.P.C. The Petitioner filed anticipatory bail applications
th
before the Special Judge and this Court which were dismissed. On 9
August, 2011 the Learned Special Judge was pleased to pass an order for
th
attachment of the immovable properties of the Petitioner. On 17 August,
2011 the Petitioner withdrew the Special Leave petition before the Hon’ble
th
Supreme Court and surrendered before the Learned Trial Court on 20
August, 2011. In view of the serious allegations against the Petitioner and
the fact that the Petitioner absconded, declared a proclaimed offender and
was found tampering with the evidence, no case for grant of bail is made out.
BAIL APPLN. 296/2012 Page 3 of 7
4. I have heard learned counsel for the parties. Briefly the case of the
prosecution is that though the Petitioner claims that he entered into a contract
for laying down underground cables with M/s. Gem International, however
he could neither produce the persons who did the work nor the muster rolls
and only invoices and bills raised were shown. Statement of witnesses have
been recorded, who have shown that they in fact did the cabling work for the
Timing, Scoring and Result (TSR system) in the Commonwealth Games.
Further statements of PW-28 and PW-31 recorded by the CBI shows that no
work was done by the Petitioner’s company for laying the cables. The
Petitioner has not been able to show documents to substantiate his claim that
he arranged the labour, which performed the work. It is apparent that the
Petitioner’s company was used as a front office for siphoning the money.
No doubt, the Petitioner is involved in a part of the entire controversy which
related to grant of tender to Swiss Timing Limited for the Timing, Scoring
and Result system to be made operated at Commonwealth Games ousting all
other competitors.
5. Undoubtedly, the main accuseds have already been granted bail.
However, in the case of main accuseds there were no allegation of either
absconsion or tampering with the evidence. As regards absconsion, it may
be noted that the Petitioner surrendered after availing his remedies upto the
Hon’ble Supreme Court and in the mean time he was declared a proclaimed
offender and his properties were attached. There can be no dispute that
every person has a right to access to justice. Thus, the Petitioner not
surrendering to custody while he was seeking legal remedies cannot be
treated adverse to him. However, the primary reason for the rejection of
BAIL APPLN. 296/2012 Page 4 of 7
Petitioner’s bail by the Learned Trial Court was the fact that the Petitioner
was found tampering with the evidence and influencing the witness. This
fact came to light at the time of hearing of the anticipatory bail application of
the Petitioner before the Learned Special Judge when one prosecution
witness was found assisting the counsel for the Petitioner to address
arguments. On pointing out by the Investigating Officer, the witness PW-10
Harish Kumar Walia stated that he was looking after the interest of the
Petitioner. At this stage it would be relevant to note the observations of the
th
Learned Special Judge in the order dated 15 June, 2011 passed at the time
of hearing of the bail application -
“20.As per the CBI, the accused/applicant is likely to influence
the witnesses if he is admitted to anticipatory bail at this stage.
The apprehension of CBI is not unfounded. During the course
of arguments a person assisting the Ld. Counsel for the accused
was pointed out by the IO as one of the witness of the
prosecution in this case. On inquiry he told that his name was
Harish Kumar Walia and he admitted that he was witness No.
10 on behalf of CBI in this case. On further inquiry as to why
he was present in the court on the said date with the Ld.
Counsel for the accused, he submitted that he was looking after
the work of accused/applicant in Delhi at the time of
Commonwealth Games and he also knew the partners of M/s
Gem International hence he was present in the Court with Ld.
Counsel for the accused. Then he submitted that he was ready
to withdraw from the Court and he walked out of the court.
This incident itself shows that even on the day when accused/
applicant A.K. Reddy has not been granted anticipatory bail,
one of the witness namely Harish Kumar Walia has been
already approached by him and the said witness was taking care
of the case of the accused/applicant in Court. I am of the
considered view that if this accused/applicant is granted
anticipatory bail there is strong likelihood that he will influence
BAIL APPLN. 296/2012 Page 5 of 7
the other witnesses also. Hence he is not entitled to
anticipatory bail.”
6. As per the statement of PW-10 Harish Kumar Walia he was employed
by the Petitioner before the Commonwealth Games for overseeing the work
of laying down of the cables. PW-10 himself has stated that it was a
temporary cable work and the job of PW-10 was to guide and supervise the
work of providing cable connectivity for the equipment and score boards and
one connection to OVR. PW-10 stated that his job was virtually temporary
in nature. It would be, thus, seen that despite the fact that the work had
concluded much ahead of October, 2010 when the Commonwealth Games
were held, PW-10 was still under the influence of Petitioner and was
watching his interest by assisting counsel at the time of hearing of the bail
application of the Petitioner.
7. As regards learned counsel for the Petitioner’s reliance on Sanjay
Chandra(supra) , it may be noted that though it is well settled that the pretrial
custody is not punitive in nature but necessity demands that some
unconvicted persons should be held in custody pending trial, in order to
secure their attendance and to ensure that they do not tamper with the
evidence.
8. I do not find any merit in the contention of the learned counsel for the
Petitioner that PW-10 does not state anything against the Petitioner, and thus
even if assuming that the Petitioner has influenced him the same would not
be detrimental to the prosecution case. The statement of PW-10 is not
exculpatory qua the Petitioner and thus in view of the fact that the Petitioner
BAIL APPLN. 296/2012 Page 6 of 7
was found influencing the witness, I do not find any ground to grant bail to
the Petitioner.
9. Petition is dismissed.
(MUKTA GUPTA)
JUDGE
MAY 15, 2012
‘ga’
BAIL APPLN. 296/2012 Page 7 of 7