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BA CBI 1244 of 2020
IN THE COURT OF SPECIAL JUDGE FOR CBI AT GREATER BOMBAY
MHCC020115192020
BAIL APPLICATION NO.1244 OF 2020
(CNR No.MHCC02н011519н2020)
In
(RC 0682019 E 0009 of CBI, EOW, Mumbai)
Sanjay Juneja
Versus
CBI, EOB, Mumbai.

.. Applicant/Accused
.. Respondent
Mr. P.D. Jain I/b Ms. Yogita Gogar, Ld. advocate for applicant/accused.
Mr. Sharma, Ld. PP for CBI, EOB, Mumbai.
CORAM :
S.U.WADGAONKAR
SPECIAL JUDGE (CBI)
(COURT ROOM NO.47)
DATED :
14th December, 2020.
ORAL ORDER
Present bail application is filed by applicant/accused Sanjay
Juneja seeking bail under Section 439 of Criminal Procedure Code for
the offence punishable under Section 120нB r/w 420 of IPC and Sec.
13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
2.

It is to be noted that complainant Amrendra Kumar, Regional
Head, Union Bank of India, Regional Office, Mumbai filed complaint to
CBI, wherein allegations are made to the effect that during the period
2016н2017 accused/company M/s Enigma Fusion Texprint Pvt. Ltd.,
represented by accused/applicant Sanjay Juneja and others alongwith
unknown public servant with an intent to cheat the complainant bank in
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BA CBI 1244 of 2020
the matter of availing credit facilities, hatched conspiracy and got
sanctioned Rs.15 crores credit facility. The said credit facility is
misappropriated by diverting the funds. According to the investigation
accused Satish Patel played an active role in making exorbitant
valuation of the property for Rs.27 crores. In fact, its valuation is Rs.4.5
crores.
3.

Applicant/accused is came to be arrested on 07.11.2020. He was
sent to CBI custody till 11.11.2020 and then to judicial custody. On
11.11.2020 applicant/accused moved regular bail application under
Sec. 439 of Cr.P.C. wherein he raised all grounds, whereby he claimed
that he is not involved in crime. On merits the said bail application is
rejected on the ground that there is a allegation of over valuation of
property, which is offered as Collateral Security to obtain the loan.
Further, the funds which were obtained for the purpose were not
utilized and the funds were misappropriated by making diversion of it.
Thus, considering the nature of offence, prima facie active role of
accused to cheat the complainant bank by obtaining credit facility of
crores and the investigation is in progress the bail application came to
be rejected on 11th November 2020.
4.

Ld. advocate for the accused/applicant submits that there is a
change in circumstance to consider the second bail application, as
judicial custody of accused is extended. Further, respondent/CBI is not
empower to arrest the accused as State of Maharashtra revoked general
consent to investigate cases involving the offence of Prevention of
Corruption Act to the CBI (working under Delhi Special Police
Establishment Act, (DSPE Act)). So, second bail application is
maintainable.
5.

Ld. PP for CBI submits that all grounds raised by the
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BA CBI 1244 of 2020
accused/applicant in the present application are also available at the
time of consideration of first bail application. Furthermore, mere
extension of remand is not a substantial change. So, there is no change
in circumstance. Further, he submits that it is legally settled that the
applicant can’t claim absolute right for bail and also the successive bail
application can’t be maintainable without plausible explanation and
cogent reasons. In support of his submission he placed reliance in the
cases of Kalyan Chandra Sarkar Vs. Rajesh Rajan, 2005 Cri. L.J.
944 ; State of Bihar Vs. Amit Kumar, AIR 2017 SC 2487 ; Anil
Kumar Yadav Vs. State of NCT Delhi, AIR 2017 SC 5398 ; Neeru
Yadav Vs. State of UP, 2015 Cri.L.J. 4898 ; Lt. Col. Prasad Shrikant
Purohit Vs. State of Maharashra, AIR 2017 SC 3986 ; State of
Maharashtra Vs. Capt. Buddhikot Subha Rao, AIR 1989 SC 2292 ;
Chandrakeshwar Prasad Vs. State of Bihar, 2016 Cri.L.J. 5083 ;
Kalyan Chandra Sarkar Vs. Rajesh Ranjan, 2004 Cri. L.J. 1796 ; Dr.
Vinod Bhandari Vs. State of M.P., 2015 Cri. L.J. 1547.
6.

The sum and substance emerging from above citation is that the
successive bail applications are permissible under the change in
circumstances, but without the change in circumstances the second bail
application would be deem seeking review of earlier judgment, which is
not permissible under the Criminal Law. Further, change in
circumstances means a substantial one which has a direct impact on
the earlier decision and not merely cosmetic change, which are of
return or no consequences.
7.

It is to be noted that the major ground claimed on behalf of
accused/applicant as a change in circumstance is extension of remand.
The extension of remand doesn’t come within the purview of substantial
change. It is a mere change during the
ongoing investigation still
investigation is in progress. Furthermore, all other grounds raised by the
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BA CBI 1244 of 2020
accused/applicant pertaining to the applicability of provision of PC Act,
powers of CBI to investigation and arrest pursuant to the PC Act, impact
of amendment in PC Act which come with effect from 26.07.2018 are
also available to the accused/applicant at the time of consideration of
first bail application. So, in fact there is no substantial change in
circumstance to consider the present second bail application.
8.

To decide the present bail application though there is no
substantial change in circumstance to consider the present second bail
application still assuming that accused/applicant is entitled to raise the
legal issues, so same would be considered.
9.

Ld. advocate for the accused/applicant advanced the contention
that the respondent/CBI is empower to exercise powers and jurisdiction
in regard to investigation, search, seizure and arrest under the Police
Delhi Special Police Establishment Act, only where the consent has been
granted by the State Government under Section 6 of the DSPE Act. The
State of Maharashtra by order dated 22.02.1989 given general consent
to the agencies under DSPE Act for investigation.

The said general
consent is revoked by State of Maharashtra by Notification Dated
19.10.2020. According to him, the accused/applicant is came to be
arrested on 06.11.2020 after the revocation of consent by the state of
Maharashtra, so respondent/CBI is not empower to investigate or arrest
the accused/applicant. So, accused/applicant be released on bail.
10.

Ld. PP for the CBI submits that an order revoking by State of
Maharashtra the order giving consent under Section 6 of the DSPE Act
can have only prospective operation and would not affect matters in
which action has been initiated prior to the issuance of order of
revocation. According to him in present case First Information Report is
registered before revocation and also action is initiated, so order of
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revocation dated 21.10.2020 is not applicable to present case (the
statement of Ld. PP is supported by the dicta of case relied by him Kazi
Lhendup Dorji Vs. CBI, JT 1994 (3) SC 140).
11.

It is to be noted that revocation of general consent given by State
of Maharashtra by dated 22.02.1989 is revoked on 21.10.2020. Before
revocation, the crime in question is registered on 31.12.2019 and action
is initiated. So revocation of general consent of dated 21.10.2020 does
not affect the initiation of action in present case. Same is valid as per
the general consent given by State of Maharashtra on 22.02.1989.
12.

The second submission made on behalf of Ld. advocate for
applicant/accused is that, pursuant to Sec. 17A of Prevention of
Corruption Act it is mandatory to the prosecution to initiate
investigation against public servant to obtain previous approval of
competent authority of public servant as enumerated under the said
section. In present case no such previous approval is obtained, so,
registration of FIR and subsequent investigation is bad in law and
deserved to be vitiated. In support of his submission he placed reliance
in the case of Yashwant Sinha and Ors. Vs. CBI and Ors.,
MANU/SC/1564/2019, wherein it is held that н
‘In terms of Section 17A, no Police officer is permitted to
conduct any enquiry or inquiry or conduct investigation into any
offence done by a public servant where the offence alleged is
relatable to any recommendation made or decision taken by the
public servant in discharge of this public functions without
previous approval.’
13.

Ld. PP for the CBI submits that accused/applicant is a non public
servant, so there is no need to obtain previous approval against
accused/applicant to conduct investigation. Furthermore, in regard to
the offences against public servant under the PC Act the process is
underway, there is no bar to register the First Information Report under
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the PC Act without previous approval.
14.

Perused record. Accused is a non public servant, so he is not
eligible to take the aid of Section 17A of PC Act. Pertaining to the
registration of offence, the judgment of Yashwant Sinha (Supra) itself
demonstrate that when there is disclose of cognizable offence, and FIR
must be registered. The plain reading of Sec. 17A of PC Act does not
play embargo, even against registration of offence under PC Act against
Public Servant, rider is imposed to conduct investigation against public
servant without obtaining previous approval of competent authority, so
the submission is not assist to the accused/applicant being non public
servant as well as cited case is distinguishable from the facts of the
present case.
15.

One of the submission advanced by the accused/applicant is the
the investigation agency under the DSPE Act only empower to
investigate offences under Prevention of Corruption Act. If those
offences are goes away, then it is not empower to do investigation
against accused/applicant under the offences of Indian Penal Code. He
referred general consent issued by State of Maharashtra dated
22.02.1989. I would like to refer relevant portion of said notification,
‘Governor of Maharashtra hereby accords consent to the extension of
powers and jurisdiction of the members of the Delhi Police
Establishment to the whole of the State of Maharashtra, for
investigation of offences punishable under the Prevention of Corruption
Act, 1988 (49 of 1989), including offences involving attempts,
abetments and conspiracies in the said offences and any other offences
committed in the course of the same transaction arising out of the same
facts.
16.

After going though it, it clear cut indicates the CBI is empower to
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BA CBI 1244 of 2020
do investigation under any other offences means under the provision of
Penal Code against non public servant. Further, it is the matter of
common knowledge that pursuant to this notification CBI made
investigation in several cases against non public servant and those cases
are tried in the Mumbai Metropolitan Magistrate. So submission made
on behalf of accused/applicant that CBI is not empower to do
investigation of offences enumerated under India Penal Code and only
in regard to the offences enumerated under offences under Prevention
of Corruption Act.
17.

Another
submission
raised
by
Ld.

advocate
for
the
accused/applicant is that the First Information Report is registered on
31.12.2018, wherein an offence punishable under Section 13(1)(d) of
Prevention of Corruption Act is registered. According to him the PC Act
was amended w.e.f. 26.07.2018 and the provisions of Sec. 13(1)(d)
stands deleted. Consequently, allegations made in the First Information
Report against the public servant no longer constitute the offence, so
First Information Report is vitiated. Further, he made the reference of
Sec. 6 of General Clauses Act, Statement and object of Amendment Act,
According to him, once 13(1)(d) of PC Act has been omitted by the
Parliament the prosecution cannot be carried out under Section 13(1)
(d) of PC Act, as said provision is not saved under the Saving Class.
Further he submits that effect of repealing a statute or deleting a
provision is to obliterate it from the statute as completely as if it had
never been passed. In support of his submission he placed reliance in
the cases of M/s Ambalal Sarabhai Enterprises Ltd. Vs. M/s Amrit Lal
& Co. & Anr. in Appeal (Civil) 5706 of 2001 decided by Hon’ble
Supreme Court by Judgment dated 27.08.2001 ; Kolhapur
Canesugar Works Ltd. Vs. Union of India and Ors., (2000) 2 SCC
536 ; M/s Rayala Corporation (P) Ltd. Vs. Directorate of
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Enforcement, New Delhi, 1969 (2) SCC 412 ; M/s General Finance
Co. & anr. Vs. Assistant Commissioner of Income Tax, Punjab in
Appeal (Cri.) 442 of 1994 decided by Hon’ble Supreme Court by
Judgment dated 04.09.2002, with the aid of these cited cases, Ld.
advocate for the accused/applicant demonstrate that Sec. 13(1)(d) of
PC Act stood omitted from the Act, but not repeal and hence, a
prosecution could not have been launched or continued by noting Sec. 6
of the General Clauses Act after its omission.
18.

Ld. PP for the CBI submits that the amendment made in
Prevention of Corruption Act in year 2018 only substituted the
provision. While making the amendment in Sec. 13 (1) in foot note it is
mentioned that the Уsection is substituted and not omittedФ. According
to him, persons committed the offence of criminal misconduct under
Section 13(1)(d) of PC Act would not be absolved of their offences or
their liability incurred prior to amendment in PC Act coming into force.
2018 amendment to PC Act does not apply the offences which have
already taken place. To substantiate his submission and interpretation
and applicability of amended Act in existing provision in a statute, he
referred the cases of M/s Fibre Boards (P) Ltd. Vs. Commissioner of
Income Tax, Bangalore in Civil Appeal Nos. 5525н5526 of 2005
decided by Hon’ble Supreme Court by judgment dated 11.08.2015 ;
Jayantilal Amratlal Vs. Union of India and Ors., 1971 AIR(SC)
1193 ; M/s Ambalal Sarabhai Enterprises Ltd. Vs. M/s Amrit Lal
and Co., 2001 (8) SCC 397 ; Bhagat Ram Sharma Vs. Union of India
and Ors., 1988 AIR (SC) 740 ; The State of Maharashtra Vs. The
Central Provinces Manganese Ore Co. Ltd., 1977 AIR (SC) 879 ; Dr.
S. Murukesan and Anr. Vs. The Deputy Superintendent of Police,
CBI/ACB, Chennai, in Cri. OP No.17027 of 2014 decided by Hon’ble
Madras High Court on 19.03.2019.

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BA CBI 1244 of 2020
It is to be noted that the cited judgments are relates to
interpretation of amendment in the existing statute, more particularly,
whether omission amounts to a repeal and whether Sec. 6 of General
Clauses Act is applicable or not to the amendments raised in those cited
cases. I have gone through the text of all judgments. In those judgments
controversy pertaining to Prevention of Corruption (Amendment) Act
2018 is not involved. So, it is desirable to take assistance of a direct
judgment pertaining to the controversy to PC Act, 2018 about the
substitution of Sec. 13(1)(d) of the Act through PC (Amendment) Act
2018 is raised and same is decided by the Hon’ble Court in the case of
Madhu Koda Vs. State through CBI in CRL.A.1186/2017 decided by
Hon’ble Delhi High Court by Judgment dated 22.05.2020 and the
said judgment is relied in the case of CBI Vs. A. Raja & Ors. in Cri.
M.A. 1731/2020 & Cri. M.A. 1820/2020 decided by Hon’ble Delhi
High Court by Order dated 23.11.2020. The issue before Madhu
Koda case (supra) is that the effect of amendment in PC Act 2018
which came in force on 26.07.2018. The provision of Sec. 13(1)(d)
stands deleted. The Hon’ble Court held that н
‘this Court is unable to accept that the PC (Amendment)
Act, 2018 seeks to repeal the provisions of Section 13(1)(d) of
the Act, as it existed prior to 26.07.2018 ab initio. Mens rea is an
integral part of the offence under Subнclause (ii) of Sec. 13(1)(d)
of the PC Act. The use of the word ‘abuse’ in the said Subнclause
indicates so. Thus, there is no reason to assume that the
legislative intent of repealing Sec. 13 of the PC Act was to exclude
the said offence from the scope of PC Act with retrospective
effect.
In view of the above, Sec. 6(d) of the General Clauses Act is
applicable and persons convicted of committing the offence of
criminal misconduct under Sec. 13(1)(d) of the PC Act would not
be absolved of their offences or the liability incurred prior to the
PC Act coming into force. It is also relevant to note that the
offence of criminal misconduct as falling under the provisions of
Section 13(1)(d) of the PC Act prior to its amendment, is not the
same offence as is now covered under the amended provision.’
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BA CBI 1244 of 2020
In the present case the offence is committed and detected prior to
the Amendment of PC Act, 2018, so, though First Information Report is
filed after the enforcement of Amendment in PC Act, 2018 but the
offence is committed prior to the amendment under Section 13(1)(d) of
the PC Act so, same is existed against the public servant with the aid of
the dicta in the case of Madhu Koda (supra). So, submission advanced
on behalf of accused/applicant is not availed to him.
21.

It is to be noted that already it is observed that there is no change
in circumstance to consider the second bail application, so other raised
grounds which are available to the applicant/accused while the
consideration of first bail application i.e. delay in FIR, innocence of
accused, non compliance of mandatory provision during the arrest as
well as referred ratios of cited cases in application itself pertaining to
the parameters of bail, is of no avail to him, as first bail application is
decided on merits and there is no change in circumstance to consider
factual matrix raised in present application. Accused is a principal
beneficiary of the crime proceeds in the present case which is in crores
and in that regard there is prima facie evidence on record, the
investigation is in progress. Once again I would like to clarify that for
the sake of arguments all the offences under the provision of PC act are
goes away, still the FIR and investigation against accused for the
offence punishable under Section 420, 120нB of IPC still persists so, all
submissions raised on behalf of accused/applicant pertaining to the
constitution of offences under PC Act is of no avail.
22.

In view of above discussion no grounds are exist to release
accused on bail. So, application is deserves to be rejected. In the result,
I proceed to pass following order :
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ORDER
Bail application No.1244 of 2020 stands rejected and disposed of
accordingly.

14.12.2020
Dictated on
Transcribed on
Signed on
(S.U.WADGAONKAR)
Special Judge (CBI)
Gr.Bombay
: 11.12.2020 & 14.12.2020
: 11.12.2020 & 14.12.2020
: 14.12.2020
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УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDERФ
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
NAME OF THE JUDGE
: 14.12.2020 AT 12.38 PM
: MRS. K.S. JADHAV
HHJ Shri.S.U. Wadgaonkar
(C.R.No.47)
Date of Pronouncement of Order 14.12.2020
Order signed by the P.O. On
14.12.2020
Order uploaded on
14.12.2020