Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 125/2022 & CRL.M.A. 482/2022
Reserved on : 21.01.2022
Date of Decision : 23.02.2022
IN THE MATTER OF:
CBI ..... Petitioner
Through: Mr. Nikhil Goel, SPP for CBI with Mr.
Vinay Mathew, Advocate
Versus
DEVENDRA JAIN .....Respondent
Through: Mr. Ramesh Gupta, Sr. Advocate with
Mr. Vijay K. Singh, Mr. Vishal Gera,
Ms. Vijaya Singh, Mr. Kumar Shashwat
Singh Sawno & Ms. Gunjan Chowksey,
Advocates
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
(VIA VIDEO CONFERENCING)
J U D G M E N T
MANOJ KUMAR OHRI, J.
1. The present petition has been filed under Section 482 Cr.P.C. read
with Section 439(2) Cr.P.C. on behalf of the petitioner/CBI seeking
setting aside of the orders dated 06.01.2022 and 07.01.2022 passed by
the learned Special Judge (PC Act), CBI-15, Rouse Avenue Courts, New
Delhi in the case arising out of RC No.218/2021/A0007 registered under
Sections 7/8/9/10 of the Prevention of Corruption Act, 1988 (as amended
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in 2018) read with Section 120B IPC at P.S. CBI/AC-III, Delhi.
2. Insofar as prayer clause (a) is concerned, the same was not pressed
having become infructuous.
3. The facts of the case, as noted by the learned Special Judge, are as
under:-
“3. (I) ...on 30.12.2021 on the basis of “source information” that
A-1 Akil Ahmad, being Regional Officer of National Highways
Authority of India (in short “NHAI”) was in the habit of
demanding and accepting illegal gratification from NHAI
contractors for clearing their pending bills and for issuing
Provisional Commercial Operations Date (in short “PCOD”) for
completed projects.
(ii) On 30.12.2021 A-1 had demanded illegal gratification from
A-2 Retnakaran Sajilal, General Manger of M/s Dilip Buildcon
Private Limited, having its registered office at Plot No.5, Chuna
Bhatti, Kolar Road, Bhopal, Madhya Pradesh-462016 (hereinafter
referred to as “DBL”) with respect to project under “Bangalore-
Chennai Expressway Package 1 & 2”, being undertaken by DBL
in Karnataka. A-4/applicant being Executive Director of DBL had
approved payment of Rs.20,00,000/- (Rupees Twenty Lakhs Only)
for being paid to A-1 towards illegal gratification. After approval
by A-4, said illegal gratification of Rs.20.00 lakhs was delivered
at the Delhi residence of A-8 Anuj Gupta for being finally paid to
A-1. During trap proceedings, said amount of Rs.20.00 lakhs was
recovered from Delhi on 30.12.2020. Further, cash amount of
Rs.4.00 lakhs was also recovered from the premises of A-1.
4. Thereafter simultaneous raids were conducted at the
premises of A-1 Akil Ahmad, A-2 Retnakaran Sajilal, A-3 Mahim
Pratap Singh Tomar, Applicant/A-4 Devendra Jain as well as A-5
Uma Soni. All the aforesaid accused persons except A-5 were
also arrested on 31.12.2021 and the material available at their
Offices was taken into possession by various CBI teams. On
30.12.2021, the applicant was there in Cochin alongwith his
family members where he is stated to have gone for his treatment
of naturopathy. He was picked up alongwith one of his relatives
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from his hotel room and taken to the office of CBI at Katari
Kadavu, Kullar Post, Cochin, during the intervening night of 30-
31/12/2021, where purportedly he was given notice u/s 41A Cr.PC
to attend the CBI office at 9:00 AM on 31.12.2021 and where
ultimately he was arrested at 11:00 AM. He was produced before
Chief Judicial Magistrate, Ernaculam from where he was brought
to Delhi CBI Office on transit remand. He was produced before
the Ld. Special Judge, who remanded him to police custody and
from time to time his police custody has been extended till today.
The two mobile phones of applicant have already been taken into
possession by CBI. Similarly, the search and seizure was effected
on the houses of other accused persons and the relevant material
therefrom has been taken possession of and brought to Delhi.”
4. Mr. Nikhil Goel, learned SPP for the petitioner/CBI, contended
that the impugned order suffers from the vice of having being passed for
extraneous reasons. It was submitted that the learned Judge failed to take
into consideration the prima facie involvement of the respondent, the
severity of the offence, the likelihood of the respondent influencing the
witnesses in the event of his release on bail, and the effect of such
release on the investigation of the case, which is pending.
Learned SPP further submitted that as per the narration of facts in
the FIR, the respondent, being Executive Director and CEO of M/s Dilip
Buildcon Private Limited (hereinafter, referred to as „DBL‟ ) is the main
accused. It was averred that besides the recovery of the bribe amount of
Rs.20 lacs from Anuj Gupta , Chartered Accountant at Delhi, large
amounts of cash were recovered from others as well, including
employees of DBL. While Rs.3.71 Crores were recovered from
accused/ Mahim Pratap Singh Tomar, AGM, DBL, Delhi, a recovery of
Rs.50 lacs in cash and approximately 4 kgs. of gold bars and jewellery
(worth Rs.2.2 Crores) was made from the locker of Akil Ahmad,
Regional Officer, NHAI, Bangalore. It was also submitted that both
Sunil Kumar Verma and Mahim Pratap Singh Tomar were working at
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DBL under the respondent.
5. It was further submitted that while passing the impugned order,
the learned Special Judge mistakenly placed reliance on the aspect of
issuance of notice to the respondent under Section 41A Cr.P.C., even
though the provision was not attracted. It was stated that while the trap
proceedings were being conducted in Delhi on the evening of
30.12.2021, a CBI Officer at Cochin carried out search proceedings at
the hotel where the respondent was staying alongwith his family.
However, the concerned Officer at Cochin erroneously gave notice to the
respondent under Section 41A Cr.P.C. It was urged that regardless of the
notice given to the respondent under Section 41A Cr.P.C., the grounds of
arrest were communicated by the Delhi office to the Cochin office on the
intervening night of 30-31.12.2021, resulting in arrest of the respondent
at Cochin on 31.12.2021. Learned SPP further submitted that despite
having gone through the case diary containing all the relevant
information, the learned Special Judge observed that there was non-
compliance of Section 41A Cr.P.C.
6. Learned SPP also assailed the findings recorded in the impugned
order, insofar as it was noted by the Court that the respondent has
cooperated in the investigation and that all the material has already been
collected. It was submitted that the FIR having been registered only on
30.12.2021, the investigation was pending at the time of passing of the
impugned order and the respondent needs to be confronted with co-
accused persons, including Uma Soni.
Insofar as the medical condition of the respondent is concerned, it
was submitted that he does not suffer from any serious ailment and
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Tourette Syndrome, from which he is stated to be suffering, is only a
neurological condition of no grave emergency.
7. In support of his submissions, learned SPP placed reliance on the
decisions of the Supreme Court in Asian Resurfacing of Road Agency
Private Limited and Another v. Central Bureau of Investigation reported
as (2018) 16 SCC 299 & Y.S. Jagan Mohan Reddy v. Central Bureau of
Investigation reported as (2013) 7 SCC 439.
8. Mr. Ramesh Gupta, learned Senior Counsel for the respondent, on
the other hand, defended the impugned order. It was stated that as per the
FIR, the source information was received qua accused/ Akil Ahmad, to
the effect that he was demanding and accepting illegal gratification from
various contractors. Insofar as DBL is concerned, the allegations were
that a demand of illegal gratification was made on 30.12.2021 by Akil
Ahmad from Retnakaran Sajilal, General Manager, DBL, Bangalore. It
was submitted that the only role assigned to the respondent is of
approving a payment of Rs.20 lacs in favor of Akil Ahmad , whereafter
the same was allegedly arranged and paid by the other employees at
DBL.
9. So far as the notice issued to the respondent under Section 41A
Cr.P.C is concerned, it was submitted that the same was issued to the
respondent by the concerned officer on the intervening night of 30-
31.12.2021, requiring him to appear before Anti-Corruption Branch,
CBI, Cochin at 9 a.m. on 31.12.2021. However, on the said day, the
respondent was arrested at 11 a.m., in complete violation of the
provision as well as of the decision of the Supreme Court in Arnesh
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Kumar v. State of Bihar and Another reported as (2014) 8 SCC 273 . It
was further submitted that the averment regarding communication of
grounds of arrest to the Cochin office on the intervening night of 30-
31.12.2021 is an afterthought, as in none of the remand applications filed
on behalf of the petitioner/CBI, any mention of communication of
grounds of arrest was made. In fact, the first two remand applications
were silent on the factum of any alleged interception.
10. While referring to the order dated 01.01.2022, it was submitted
that at the time of grant of remand, the concerned Court had also
observed that the remand sought for 10 days by the petitioner/CBI was
excessive and thus, remand of only 04 days i.e., till 05.01.2022 was
granted. On 05.01.2022, an application for extension of respondent’s
remand for 07 days was moved again, however, by way of the order
passed on 06.01.2022, only one day’s PC remand was granted.
11. It was further submitted that during the search and raid
proceedings conducted at the hotel and house of the respondent, no
incriminating material was recovered. The respondent was not even in
Delhi at the time of the trap proceedings. Further, the Laptop and Mobile
Phone of the respondent have been seized and he has also voluntarily
given his voice samples. The search and seizure proceedings have also
been conducted at all the offices of DBL and the respondent is not
required for any investigation.
12. It was also submitted that the respondent has joined the
investigation as and when directed to do so. After being granted bail on
07.01.2022, the respondent had reported to the Investigating Officer on
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08.01.2022, on which date, he was told that as per the report of sample
taken during custody, he had tested positive for COVID-19. Thereafter,
the respondent continuously provided his location details to the
Investigating Officer. In pursuance of the notice dated 19.01.2022, the
respondent also joined the investigation on 20.01.2022 and supplied all
the documents asked for.
13. Insofar as the respondent’s medical condition is concerned, it was
stated that he is aged about 48 years and suffers from Tourette
Syndrome , due to which he is afflicted with ‘ sleep apnoea‟. The
respondent also suffers from type 2 diabetes and has to undergo
continuous Positive Airway Pressure (PAP) . His oxygen level abruptly
goes down during sleep, for which he is stated to be under medical
treatment.
14. I have heard learned counsels for the parties and perused the entire
material placed on record.
15. Before proceeding to analyze the facts of the present case, it is
deemed apposite to recapitulate the legal position on principles that must
weigh with a Court while determining whether or not bail should be
granted to an accused.
16. In Mahipal v. Rajesh Kumar alias Polia and Another reported as
(2020) 2 SCC 118, the Supreme Court has highlighted the difference
between principles that shall be borne in mind while determining the
correctness of an order granting bail vis-à-vis the principles that shall
apply to cases where cancellation is sought of bail already granted.
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Relevant extract from the judgment is reproduced hereunder:-
“ 13. The principles that guide this Court in assessing the
correctness of an order passed by the High Court granting bail
were succinctly laid down by this Court in Prasanta Kumar
Sarkar v Ashis Chatterjee. In that case, the accused was facing
trial for an offence punishable under Section 302 of the Penal
Code. Several bail applications filed by the accused were
dismissed by the Additional Chief Judicial Magistrate. The High
Court in turn allowed the bail application filed by the accused.
Setting aside the order of the High Court, D.K. Jain, J., speaking
for a two-Judge Bench of this Court, held : (SCC pp. 499-500,
paras 9-10)
“9. … It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or rejecting
bail to the accused. However, it is equally incumbent upon the
High Court to exercise its discretion judiciously, cautiously and
strictly in compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is well settled
that, among other circumstances, the factors to be borne in
mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on
bail;
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of
bail.
10. It is manifest that if the High Court does not advert to these
relevant considerations and mechanically grants bail, the said
order would suffer from the vice of non-application of mind,
rendering it to be illegal.”
14. …The Court is required to factor, amongst other things, a
prima facie view that the accused had committed the offence, the
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nature and gravity of the offence and the likelihood of the accused
obstructing the proceedings of the trial in any manner or evading
the course of justice. The provision for being released on bail
draws an appropriate balance between public interest in the
administration of justice and the protection of individual liberty
pending adjudication of the case. However, the grant of bail is to
be secured within the bounds of the law and in compliance with
the conditions laid down by this Court. It is for this reason that a
court must balance numerous factors that guide the exercise of the
discretionary power to grant bail on a case-by-case basis.
Inherent in this determination is whether, on an analysis of the
record, it appears that there is a prima facie or reasonable cause
to believe that the accused had committed the crime. It is not
relevant at this stage for the court to examine in detail the
evidence on record to come to a conclusive finding.
xxx
16. The considerations that guide the power of an appellate court
in assessing the correctness of an order granting bail stand on a
different footing from an assessment of an application for the
cancellation of bail. The correctness of an order granting bail is
tested on the anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or unjustified. On the
other hand, an application for cancellation of bail is generally
examined on the anvil of the existence of supervening
circumstances or violations of the conditions of bail by a person to
whom bail has been granted. In Neeru Yadav v. State of U.P., the
accused was granted bail by the High Court. In an appeal against
the order of the High Court, a two-Judge Bench of this Court
surveyed the precedent on the principles that guide the grant of
bail. Dipak Misra, J. (as the learned Chief Justice then was) held :
(Neeru Yadav case, SCC p. 513, para 12)
“12. …It is well settled in law that cancellation of bail after it is
granted because the accused has misconducted himself or of
some supervening circumstances warranting such cancellation
have occurred is in a different compartment altogether than an
order granting bail which is unjustified, illegal and perverse. If
in a case, the relevant factors which should have been taken
into consideration while dealing with the application for bail
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have not been taken note of bail, or bail is founded on irrelevant
considerations, indisputably the superior court can set aside the
order of such a grant of bail. Such a case belongs to a different
category and is in a separate realm. While dealing with a case
of second nature, the Court does not dwell upon the violation of
conditions by the accused or the supervening circumstances
that have happened subsequently. It, on the contrary, delves
into the justifiability and the soundness of the order passed by
the Court.”
17. Where a court considering an application for bail fails to
consider relevant factors, an appellate court may justifiably set
aside the order granting bail. An appellate court is thus required
to consider whether the order granting bail suffers from a non-
application of mind or is not borne out from a prima facie view of
the evidence on record.”
17. While alluding to the decision in Anil Kumar Yadav v. State (NCT
of Delhi) and Another reported as (2018) 12 SCC 129, the view taken in
Mahipal (Supra) has been reiterated by the Supreme Court in
Bhoopendra Singh v. State of Rajasthan and Another reported as 2021
SCC OnLine SC 1020.
18. Coming back to the present case, it is noted that reliance has been
placed on behalf of the petitioner/CBI on the decisions in Y.S. Jagan
Mohan Reddy (Supra) and Asian Resurfacing (Supra), where it has been
noted by the Supreme Court that economic offences constitute a class
apart and need to be visited with a different approach in matters of bail.
19. From a perusal of the FIR in question, it is apparent that Akil
Ahmad had demanded illegal gratification from Retnakaran Sajilal on
30.12.2021 with respect to a project of DBL in Karnataka. After
approval of payment of Rs.20 lacs by respondent/ Devendra Jain ,
Retnakaran Sajilal had directed Mahim Pratap Singh Tomar to pay the
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aforesaid amount to Anuj Gupta at Delhi. In pursuance, the amount was
carried by Sunil Kumar Verma to be paid to Anuj Gupta, who allegedly
received the same for Akil Ahmad .
20. The role assigned to the present applicant is of granting approval
of the payment of Rs.20 lacs to Akil Ahmad which, notably, has come in
the disclosure statements. It is also apparent from the record that nothing
was recovered from or at the instance of the respondent.
Further, the respondent has already handed over his Laptop and
Mobile Phone and has also given his voice samples. It is not disputed
that after being released, the respondent had tested positive for
COVID-19, whereafter, he was given a notice dated 19.01.2022 to join
investigation on 20.01.2022, and on the said date, he duly joined the
investigation.
21. During the course of submissions, a contention was raised
regarding the issuance of notice under Section 41A Cr.P.C. to the effect
that the same was wrongly given to the respondent as the material
collected by that time did not warrant issuance of such notice. It was also
submitted on behalf of the petitioner that communication of grounds of
arrest on the intervening night of 30-31.12.201 was reflected in the case
diary which was also seen by the Sessions Court, however, learned
Senior Counsel for the respondent contested the submission and a
perusal of the impugned order also does not support the same. Further,
this aspect is not stated in any of the remand applications.
Be that as it may, this Court cannot lose sight of the fact that a
notice under Section 41A Cr.P.C. was indeed given to the respondent,
asking him to join the investigation on 31.12.2021 at 09:00 a.m. and the
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applicant was placed under arrest at 11:00 a.m. It was also informed that
the respondent was asked to join the investigation on 24.01.2022.
22. It was contended on behalf of the petitioner that the accused/ Akil
Ahmad was habitual of demanding bribe from contractors and so, there is
a larger conspiracy involved which needs to be unearthed. But till date,
no other material besides what is already part of case records has been
placed on record to substantiate the allegation.
23. Notably, one of the grounds of challenge of the impugned order is
that sustained custodial interrogation of the respondent is required, so he
may be confronted with co-accused persons, including Uma Soni .
However, this Court is of the opinion that in view of the role assigned to
the respondent and in the absence of any other material to substantiate
the allegations levelled, the ground raised is without any merit.
24. So far as the recovery of money from Sunil Kumar Verma &
Mahim Pratap Singh Tomar is concerned, the case has reportedly been
referred to the Income Tax authority, which is in seizure of the same.
The accused persons, namely Sunil Kumar Verma, Retnakaran Sajilal,
Uma Soni, & Mahim Pratap Singh Tomar, have already been released on
regular bail and the relevant orders have not been challenged by the
petitioner/CBI till date.
25. Keeping in view the foregoing, this Court is of the view that the
order granting bail does not suffer from any kind of perversity. No
ground is made out to cancel the bail granted to the respondent.
However, to ensure the respondent’s availability during the trial, it is
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directed that in addition to the bail conditions imposed by the Court
below, the respondent shall also surrender his Passport with the
concerned Investigating Officer/CBI official within a period of 01 week
from the date of this judgment.
26. The petition is dismissed in the above terms. Miscellaneous
application is disposed of as infructuous.
(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 23, 2022
p‟ma/v
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