Sanjay Gupta Vs. State of Himachal Pradesh - Court Judgment

Excerpt:
criminal - grant of bail - section 438 of code of criminal procedure, 1973 (cr.p.c.), sections 13(1)(e) and 13(2) of prevention of corruption act, 1988 - applicant filed present application under section 438 of cr.p.c. for releasing him on bail in respect of fir registered against him under sections 13(1)(e) and 13(2) of act - held, case against applicant is of disproportionate assets to his known sources of income - applicant had admitted in his bail application that he has not given complete information regarding his property but he has taken plea that such information could not be given for want of copies of income tax returns - investigating agency has denied that during investigation copies of income tax returns of applicant and of his wife were taken into possession - applicant could have obtained copies of income tax returns from income tax department after registration of fir against him - thus, it is proved that applicant himself had not given complete information to investigating agency - this indicates that applicant is not co-operating in investigation - also, this is third case against applicant under act - there are serious allegations against applicant, accusation of applicant that case has been registered falsely against him due to animosity has been denied by investigating agency - in facts and circumstances of case, applicant has failed to make out any case for grant of bail under section 438 of cr.p.c - accordingly, application dismissed - code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.kuldip singh, j.1. this is an application under section 438 cr.p.c. for releasing the petitioner on bail in fir no. 26 of 2009 registered on 1.8.2009 at police station, state vigilance and anti corruption bureau, shimla under section 13(1)e) and section 13 (2) of the prevention of corruption act, 1988. heard and perused the record.2. the petitioner in his application has submitted that on 9.7.2009 the police officers from anti corruption bureau, police station, solan allegedly recovered an amount of rs. 2 lacs from the petitioner and on that basis an fir no. 10 was registered at police station, anti corruption bureau, solan on 9.7.2009 under section 7, 13(2) read with section 13(1) d of the prevention of corruption act, 1988. it has been alleged that during investigation the investigating agency found that the petitioner has disproportionate assets to his known source of income and, therefore, an fir no. 26 dated 1.8.2009 under section 13(2) read with section 13 (1) (e) of the prevention of corruption act, 1988 was registered at police station state vigilance and anti corruption bureau, shimla. the investigation in case fir no. 26 dated 1.8.2009 is continuing. the petitioner had filed an application under section 438 cr.p.c. which has been rejected by the learned special judge (forest), shimla on 20.8.2009.3. the petitioner is a senior and responsible officer belonging to indian administrative service. the petitioner would not flee from justice. he would be available for interrogation or trial at any point of time. the petitioner has been repeatedly summoned by the investigating agency and the petitioner appeared several times before the investigating agency and was thoroughly interrogated.4. the copies of income tax returns of the petitioner from 1988 to 2008 and his wife from 1985 to 2008 were seized by the investigating agency on 9.7.2009. it has been alleged that after the registration of the case, the petitioner has supplied the details of properties by way of six proformas to the investigating agency regarding the movable and immoveable properties of the petitioner and his family. on 6.8.2009, the petitioner requested the superintendent of police, state vigilance and anti corruption bureau, shimla to supply him the copies of income tax returns which were taken by the police on 9.7.2009. the copies of income tax returns were supplied to the petitioner on 9.8.2009 but it was found that the copies of income tax returns from 1988-89 to 1992-93 of petitioner were not supplied to him. similarly, the copies of income tax returns of his wife from the year 1984-85 to 1992-93 were not supplied.5. the proformas no. 1 to 6 were filled in and supplied to investigating agency but proforma no. 6 was partially filled in for want of copies of complete income tax returns. the information asked for in the proformas has been prepared and supplied to the investigating agency for the year 1993-94 to 2008-09. the information of the period prior to 1993-94 could not be supplied as the income tax returns for this period have not been returned by the investigating agency to the petitioner. the petitioner does not remember orally the details of the property and the same can be incorporated in the proforma no. 6 with the help of relevant income tax returns. the registration of the case against the petitioner is completely unwarranted as no offence has been committed by the petitioner.6. the wife of petitioner is income tax assessee even prior to her marriage. the property possessed by the wife of the petitioner is shown in her income tax returns and also in the audit report prepared by the chartered accountant. the audit report prepared by the chartered accountant concerning the property of the family of the petitioner has been shown in annexure p-1.7. the petitioner owns only two immoveable properties, a flat at panchkulla and a flat at parwanoo. the government was informed about the source of funds. the investment of rs. 17,00,000/- has been properly explained and accounted for by the petitioner.8. the petitioner has also submitted that he had instituted proceedings under section 340 of the code of criminal procedure against the top officers of anti corruption bureau namely d.s. minhas, dgp, a.n. sharma, former i.g. vigilance, a.p.singh, s.p. in the court of learned special judge, rampur. it has been alleged that the dgp vigilance is instrumental in getting the petitioner involved in the case.9. the period covered in the case runs from 1988 onwards. there is no evidence worth the name to indicate that any disproportionate assets were created by the petitioner. it has been ultimately stated in the application that the petitioner undertakes to join the investigation as and when required by the investigating agency. he undertakes not to tamper with the evidence in any manner. he shall comply other conditions imposed by this court.10. the bail application has been opposed by mr. a.k.bansal, learned additional advocate general. mr. bansal has submitted that during the investigation of another fir no. 10 of 2009 registered at police station state vigilance and anti corruption bureau, solan under section 7(13)(2) and section 13 (1)(d) of the prevention of corruption act against the petitioner, it was found that the petitioner, his wife and two daughters are holder of 16 bank accounts in shimla, panchkulla and chandigarh, valuable securities worth rs. 17,00,000/- approximately are in the name of family of the petitioner in various banks. the credited amount in all these accounts for a period of 10 years is more than rs. 2 crore. the total value of the assets found in the locker of the petitioner is rs. 33,00,000/- and the total value of jewellary found in his house is rs. 10,00,000/-. the petitioner has invested rs. 19,00,000/- in a housing society in chandigarh within a span of 8 months i.e. from december 2007 to august 2008. the petitioner also owns a flat and showroom at panchkulla valuing rs. 30,00,000/-, a flat in parwanoo and a flat at ludhiana. the petitioner was directed to supply the documents pertaining to his immovable properties which he has not supplied.11. the respondent has filed reply to bail application and reiterated the contents of the fir in the reply. it has been submitted that bail application of the petitioner under section 438 cr.p.c. has been dismissed by the learned special judge (forest) shimla on 20.8.2009. on 9.7.2009 investigating agency had recovered copies of income tax returns of the petitioner from 1993-94 to 2007-08 and copies of income tax returns of his wife smt. sneh lata gupta from 1993-94 to 2007-08. it has been denied that investigating agency has recovered copies of income tax returns from 1988-89 to 1992-93 of petitioner and of his wife from 1985-86 to 1992-93. the investigating agency has already supplied the copies of the income tax returns of the petitioner and his wife available with the investigating agency. the petitioner is not co-operating in the investigation by adopting delaying tactics. the wife of the petitioner is house wife. the petitioner has not disclosed the property, gifts received by his wife from her parental side to the government at the time of acquisition. the audit report prepared by the chartered accountant appears to be after thought as this report was neither supplied to the investigating agency nor to the government.12. the fir no. 2 of 1996 was registered at police station south zone, shimla against the petitioner. the cancellation report was filed on 6.6.2007 by the prosecution before the learned special judge, kinnaur sessions division at rampur bushahr. the prosecution thereafter filed an application on 11.8.2009 for seeking withdrawal of the cancellation report. it has not been denied that the petitioner has filed an application under section 340 of cr.p.c. against some officers in the proceedings for seeking withdrawal of the cancellation report. the learned special judge has been pleased to allow the application of the investigating agency and dismissed the application filed by the petitioner being pre-mature. the allegations against the officers of the state vigilance and anti corruption bureau are false. the fir in the present case was registered after verifying the allegations of acquisition of assets by the petitioner disproportionate to his known sources of income. the investigating agency has sufficient information that the petitioner has also acquired some assets and invested money for which the petitioner is required to be interrogated.13. the learned counsel for the petitioner has submitted that the acquisition of property by a government servant is not an offence. the registration of the present case against the petitioner is due to animosity of high police officers as mentioned in the bail application. the petitioner has given information of movable and immovable properties of petitioner and his family in the form of statements 1 to 6 to the investigating agency. the investigating agency is conducting roving inquiry without disclosing alleged movable and immovable properties of the petitioner and his family. in other words, the investigating agency is asking information from the petitioner of properties which are not in existence in the name of petitioner or his family.14. the learned additional advocate general has submitted that this is the third case which has been registered against the petitioner. the first case was registered as fir no. 2 of 1996 dated 1.7.1996 at police station south zone, shimla under various sections of indian penal code and prevention of corruption act, 1988. the second case was registered as fir no. 10 of 2009 on 9.7.2009 at police station, state vigilance and anti corruption bureau, solan. the third case being fir no. 26 of 2009 has been registered on 1.8.2009 against the petitioner at police station state vigilance and anti corruption bureau, shimla. it has been submitted that the allegations of registration of present case against the petitioner due to animosity is wrong. in fact, fir was registered when certain information came to the notice of investigating agency while investigation was being conducted in fir no. 10 of 2009 dated 9.7.2009. the petitioner is not cooperating in the investigation and not disclosing information. the petitioner joins the investigation only when he is under the cover of interim bail. the petitioner was not available to the investigating agency when his bail application was rejected by the learned special judge (forest) shimla on 20.8.2009 and he surfaced and joined the investigation only after obtaining interim bail from this court. the petitioner is a senior officer of indian administrative service. the custodial interrogation of the petitioner is necessary in the present case.15. in the words of petitioner, he has made following averments in his bail application:in so far performa no. 6 is concerned the same was also partially filled in but information on points no. 3, 10, 12, 13, 17, 18, 19, 20 and 22 could not be supplied for want of complete income tax return. information asked for in this proformas has been prepared and given to the investigating agency for the period from 1993-94 to 2008-09. as regards the period earlier to 1993-94 the information is not possible to be supplied as income tax return for this period have not been returned by the investigating officer. your lordship would very kindly appreciate that the petitioner has been asked to supply information for more than past 20 years. as a matter of fact the petitioner does not remember orally the details of the property and the same can only be incorporated in the performa no. 6 with the assistance of the concerned itrs. the investigating officer on the one hand is deliberately withholding the said returns and on the other hand insisting on the supply of information for the period covered by those returns knowing it very well that information so old cannot be given orally. to put it differently the investigating agency is asking the petitioner to do something which is not possible in the given circumstances.16. the stand of the petitioner indicates that in absence of his income tax returns prior to 1993-94 it is not possible for him to supply information to the investigating agency. there is no denial of the fact that petitioner has joined the service in the year 1988. the case against the petitioner is of disproportionate assets to his known sources of income. the petitioner has admitted in his bail application that he has not given the complete information regarding his property but he has taken the plea that such information could not be given for want of copies of income tax returns. the investigating agency has denied that during investigation of fir no. 10 of 2009 dated 9.7.2009 the copies of income tax returns of petitioner from the year 1988-89 to 1992-93 and of his wife from the year 1985-86 to 1992-93 were taken into possession. in any case, the fir in the present case was registered on 1.8.2009 and the petitioner could have obtained the copies of income tax returns from the income tax department. the fact remains according to petitioner himself he has not given the complete information to investigating agency. this indicates that the petitioner is not co-operating in the investigation.17. in joginder kumar v. state of u.p. and ors. : (1994) 4 scc 260 , the supreme court in para 9 has observed as follows:a realistic approach should be made in this direction. the law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other ; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which mr. justice cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. in people v. defore 242 ny 13, 24 : 150 ne 585, 589 (1926) justice cardozo observed:the question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. on the one side is the social need that crime shall be repressed. on the other, the social need that law shall not be flouted by the insolence of office. there are dangers in any choice. the rule of the adams case (people v. adams 176 ny 351 : 68 ne 636 (1903) strikes a balance between opposing interests. we must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.18. the supreme court in state rep. by the c.b.i. v. anil sharma (1997) 7 scc 187 has observed as follows:we find force in the submission of the cbi that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under section 438 of the code. in a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations 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 pre-arrest bail order during the time he is interrogated. very often interrogation in such a condition would reduce to a mere ritual. the argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. the court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.19. in er. k.k. jerath v. union territory, chandigarh and ors. air 1998 sc 1934, it has been observed that in considering a petition for grant of bail necessarily if public interest requires detention of citizen in custody for purpose of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence.20. this is the third case against the petitioner under the prevention of corruption act, 1988. the investigating agency has opposed the bail application of the petitioner primarily on the ground that the petitioner is not co-operating in the investigation and is not divulging complete truth.on behalf of the investigating agency prayer has been made that custodial interrogation of the petitioner is necessary. the petitioner is a senior officer.the usual submission that no prejudice will be caused to the investigating agency as the accused will join the investigation in accordance with the directions of the court is not applicable in each and every case. the gravity of offence, public interest is to be equally considered while considering the liberty of the accused. there are serious allegations against the petitioner, the accusation of the petitioner that the case has been registered falsely against him due to animosity has been denied by the investigating agency. in the facts and circumstances of the case, the petitioner has failed to make out any case for grant of bail under section 438 cr.p.c. accordingly, the application is dismissed.21. the observations made in this order are for disposal of this application only and the same shall not be treated as expression of opinion on the merits of the case.