BA 105/18
1
IN THE SPECIAL COURT FOR CBI AT GREATER BOMBAY
BAIL APPLICATION NO. 105 OF 2018
IN
REMAND APPLICATION NO. 138 OF 2018
(RC 05(A)/2018CBI, ACB, MUMBAI)
Kalicharan Lambodar Panda
…Applicant/Accused.
Versus
The State (CBI, EOW, Mumbai)
CORAM :
DATED :
…Respondent
HIS HONOUR JUDGE SHRI S.R. TAMBOLI
(COURT ROOM NO.47)
13.02.2018
SPP Mr. J.K. Sharma for the CBI, EOW.
Advocate Mr. Ashish S. Chavan for the applicant/accused.
ORDER
1.
In the instant application, accused has prayed for bail under Section
439 of the Cr. P. C.
2.
Ld. Counsel for the applicant/accused submitted that the accused is
Assistant Commissioner of Customs, Mumbai since 2014. His department
deals with the valuation of the refund to be made to the various parties
under the Customs Act and other government regulations. As per the
prosecution case, the FIR came to be registered against him on the basis of
the source information. He demanded illegal gratification from the co
accused Talashi Kuroda, (hereinafter, he is referred as ‘accused no.2’ only
for convenience), who is director of M/s Hope (India) Polishing Works
Private Limited and M/s Hope India Diamond Trading Company Private
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Limited through coaccused Sanjeev Malhotra, (hereinafter, he is referred
as ‘accused no.3’ only for convenience), who happens to be chartered
account for issuing /handing over a favourable orders with regards to the
acceptance of declared value of goods imported. According to the
prosecution accused no.2 was to hand over the amount of Rs. 2 lacs as
illegal gratification to the present accused at his office. Trap was laid and
amount of Rs. 2 lacs was found. The amount of Rs. 3 lacs was alleged to be
recovered from the residence of the present accused.
3.
He further submitted that prosecution story does not inspire the
confidence. Nobody has made complaint about the demand. The source of
information has not been disclosed. It has not been verified as per the rules
of the CBI manual. Mere seizure of the amount from the cabin of the
accused does not mean that he accepted illegal gratification. Accused is
government servant. He is not going to abscond. He is in jail since the date
of arrest. Hence, he prayed to allow the application.
4.
PerContra, Ld. SPP for CBI, ACB, Mumbai submitted that the
accused demanded illegal gratification from the accused no. 2 through
accused no. 3 for handing over a favourable order with regard to the
acceptance of the declared value of the goods imported. The modus
operandi in the payment of illegal gratification is that the bill would be
raised by the accused no. 3 in the name of the accused no. 2. the accused
no. 3 was encashing the cheque and he was handing over it to the accused
no. 2 for making payment of the illegal gratification of the present accused.
CBI learnt that the accused no. 2 was handing over the illegal gratification
of Rs. 2 lacs to the present accused in the afternoon of 01.02.2018 in the
presence of accused no. 3. Hence, FIR came to be registered and trap came
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to be laid. At that time, present accused, accused no. 2 and accused no. 3
were caught. The amount of Rs. 2 lacs was seized from the inside bag from
the cabin of the present accused. The recorded conversation of the present
accused and co accused shows the demand of illegal gratification. The
investigation is in progress. There is every possibility of the tampering with
the witnesses. Hence, he prayed that the application of bail be rejected.
5.
To support his contention, Ld. Counsel for the applicant placed
reliance on the following decisions:
i) In B. Jayaraj vs. State of A.P., MANU/SC/0245/2014, Hon’ble
Apex Court observed that mere possession and recovery of the
currency notes from the accused without proof of demand will not
bring home the offence under Section 7 and 13(1)(d) of the PC Act.
ii) In Krishan Chander vs. State of Delhi , MANU/SC/0003/2016,
Hon’ble Apex Court observed that mere acceptance of any amount
without the proof of demand would not bring the charge under
Section 7(1) and 13(1)(d) of the PC Act.
iii) In P. Satyanarayana Murthy vs. The Dist. Inspector of Police
and Ors., MANU/SC/1012/2015 similar observation has been made
by the Hon’ble Apex Court.
iv) Shashikant vs. Central Bureau of Investigation and Ors.,
MANU/SC/8639/2006
v) S. Murali Mohan and Ors. vs. State ,MANU/TN/3151/2017
vi) Vineet Narain and Ors. vs. Union of India (UOI) and Anr.,
MANU/SC/0827/1998
6.
In the cases, cited at paragraph 5 (iv) to (vi) Hon’ble Apex Court and
Hon’ble Madras High Court observed that the guidelines given in the CBI
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Manual is mandatory.
7.
Relying on the aforesaid decisions, Ld. Counsel for the accused
submitted that in the present case demand has not been proved.
Prosecution has not disclosed the source information. Preliminary inquiry is
not been made on the source of information. Prosecution has not stated
exactly about the manner in which the conversation was recorded. Hence,
there is no prima facie case against the accused.
8.
PerContra, Ld. SPP for CBI, ACB, Mumbai also placed reliance on
the decision of Hon’ble Apex Court. It is delivered in Vineet Narain’s Case
(Supra.) and submitted that after making proper inquiry, CBI unit has laid
the trap.
9.
In Vineet Narain’s Case (Supra.) Hon’ble Apex Court observed as
under:
“12. The CBI Manual based on statutory provisions of the Cr.P.C. provides
essential guidelines for the CBI’s functioning. It is imperative that the CBI
adheres scrupulously to the provisions in the Manual in relation to its
investigative functions, like raids, seizure and arrests. Any deviation from the
established procedure should be viewed seriously and severe disciplinary action
taken against the concerned officials.
19. Before we refer to the report of the Independent Review Committee
(IRC), it would be appropriate at this stage to refer to the Single Directive issued
by the Government which requires prior sanction of the designated authority to
initiate the investigation against officers of the Government and the Public Sector
Undertakings (PSUs), nationalised banks above a certain level. The Single
Directive is a consolidated set of instructions issued to the CBI by the various
Ministries/Departments in this behalf. It was first issued in 1969 and thereafter
amended on many occasions. The Single Directive contains certain instructions to
the CBI regarding modalities of initiating an inquiry of registering a case against
certain categories of civil servants. Directive No. 4.7(3) in its present form is as
under :
“4.7(3) (i) In regard to any person who is or has been a decision making
level officer (Joint Secretary or equivalent or above in the Central Government or
such officers as are or have been on deputation to a Public Sector Undertaking;
officers of the Reserve Bank of India of the level equivalent to Joint Secretary or
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above in the Central Government, Executive Directors and above of the SEBI and
Chairman & Managing Director and Executive Directors and such of the Bank
officers who are one level below the Board of Nationalised Banks), there should
be prior sanction of the Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering search in respect of
them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI
for obtaining necessary prior sanction as aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal Secretary, should be disposed of by
them preferably within a period of two months of the receipt of such a reference.
In respect of the officers of the rank of Secretary or Principal Secretary to
Government, such references should be made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee consisting of the Cabinet Secretary as
its Chairman and the Law Secretary and the Secretary (Personnel) as its
members. The Committee should dispose of all such reference preferably within
two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI
and the Secretary of the Administrative Ministry/Department in respect of an
officer up to the rank of Additional Secretary or equivalent, the matter shall be
referred by CBI to Secretary (Personnel) for placement before the Committee
referred to in Clause (ii) above. Such a matter should be considered and disposed
of by the Committee preferably within two months from the date of receipt of
such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before
SPE takes any step of the kind mentioned in (i) above the case should be
submitted to the Prime Minister for orders.”
10.
In Amit Suresh Arya vs. Central Bureau of Investigation and Ors.,
MANU/MH/1345/2017, Hon’ble Bombay High Court observed as under:
“18. (iii) Considering the offences alleged, aggrieved person ought to have
lodged the report and based on source information not disclosed at any time,
complainant has no locus to lodge report alleging the offences of cheating,
forgery etc.:
Another ground on which criminal prosecution is assailed is regarding the
locus of complainant to lodge the complaint. Submission of the applicants is that
FIR is lodged on the basis of source information which has never been disclosed
at any time and for the offences particularly of cheating and forgery, it was
incumbent on the prosecution agency to disclose the source of information and
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the name of informant. In support thereof, reliance is placed on the decisions of
the Hon’ble Supreme Court in Joseph Salvaraja vs. State of Gujarat and others,
MANU/SC/0719/2011 : (2011) 7 SCC 59 : [2011 ALL SCR 1601] and
Mohammed Ibrahim and others vs. State of Bihar and another,
MANU/SC/1604/2009 : (2009) 8 SCC 751.
21. The proposition of law relating to information in cognizable cases is
well settled and any person orally or in writing can set criminal law into motion.
In this background, we do not find any infirmity regarding the locus to lodge the
report. The third contention raised by the learned counsel for the applicants is,
therefore, negatived in the above background.”
11.
In
R.
Venkatakrishnan
vs.
Central
Bureau
of
Investigation,
MANU/SC/1411/2009, Hon’ble Apex Court observed as under:
“179. In this regard, it must be emphasized that the submission of the
learned Counsel that the Banks have not initiated any proceedings and suffered
any loss and thus the judgment of conviction and sentence of criminal breach of
trust is wholly unsustainable cannot be accepted for more than one reason.
180. It is not the law that complaint petition under all circumstances must
be made by the Banks and Financial Institutions whose money had been the
subject matter of offence. It is also not the law that suffering of loss is a sine qua
non for recording a judgment of conviction. It is now trite that criminal law can
be set in motion by anybody. The prosecution was initiated on the basis of the
information received by the Central Bureau of Investigation. It would entitled to
do so not only in regard to its statutory powers contained in the Delhi Special
Police Act but it was also entitled to take cognizance in terms of the report
submitted by ‘Janakiraman Committee’. The money involved in the transfer is
public money belonging to Public Sector Banks.”
12.
Relying on the aforesaid decisions, Ld. SPP submitted that it is not
mandatory on the prosecution to disclose the source of information.
Criminal law can be set in motion by any person. The offence alleged
against the accused is serious. Hence, he payed to reject the application.
13.
There cannot be two opinions about the ratio laid down in aforesaid
cases. However, the FIR does not disclose that the reliable information was
received either from any person or from any other source like telephonic
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conversation. The ratio laid down in Vineet Narain’s Case (Supra.) shows
that the CBI has to take certain steps after receipt of the source
information. Though it is not mandatory to disclose the source information,
CBI has to act as per the guidelines given in CBI manual. The FIR does not
prima facie shows about the steps taken by the CBI.
14.
Further, nobody has complained about the demand of the money by
the present accused. CBI has not raid handed while accepting the money by
present accused from co accused.
15.
Counsel of the accused has relied on the ratio laid down in
B.
Jayaraj’s Case (Supra.), Krishan Chander’s Case (Supra.), and P.
Satyanarayana’s Case (Supra.). As per the ratio laid down in said cases, it
is necessary to prove the demand of gratification. As earlier stated, nobody
has complained about the illegal gratification.
16.
Prosecution is coming with case that the conversation has been
recorded. However, said reply is cryptic. Prosecution has not given the
mobile numbers and the time of recording of the conversation. It has not
given the details of the dialogues exchanged in between accused. Said fact
also does not find place in the FIR.
17.
Already IO has seized the amount from the cabin of the accused.
Residential premises of the accused has been searched and amount has
been seized. Therefore, accused is not required for further investigation.
The offence alleged against the accused is punishable for ten years.
Considering all these facts, this court thinks it proper to enlarge the
accused on bail.
18.
The prosecution is coming with case that the accused may tamper
with the evidence. He may influence the prosecution witnesses. However,
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in this regard this court is of the view that the condition can be imposed on
the accused. If the accused makes any attempt of influence witnesses or
tamper the evidence, the prosecution can still apply for the cancellation of
the bail. However, it cannot be a sole ground for cancellation of the bail.
19.
Considering all above circumstances, application deserves to be
allowed. In the result, this court pass the following order:
ORDER
1. BA 105/18 is hereby allowed on following conditions:
i) Accused Kalicharan Lambodar Panda be released on bail on
executing P. R. Bond of Rs. 2,00,000/ (Rs. Two Lacs Only) with
one or two surety/sureties in like amount.
ii) Accused shall attend the office of CBI once in a week i.e. every
Sunday from 10.00 a.m. to 5.00 p.m. till filing of the chargesheet.
iii) Accused shall not leave country of of India without prior
permission of this court.
iv) Accused shall not interfere in the investigation in any manner.
v) Accused shall not tamper with the prosecution witnesses and
record relating the offence.
2. Bail Application 105/18 is disposed off accordingly.
(S.R.TAMBOLI)
Special Judge (CBI)
Gr. Bombay.
13.02.2018
Dictated on
Transcribed on
Signed on
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: 13.02.18
: 14.02.18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
15.02.18
Name of the Judge
TIME
NAME OF STENOGRAPHER
10.48 a.m.
Nikita Yogesh Gadgil
HHJ Shri S.R. Tamboli (CR
No.47)
13.02.18
Date of Pronouncement of
Judgement/Order.
Judgement/order signed by P.O on
Judgement/order uploaded on
14.02.18
15.02.18