THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.3857 of 2018
16.04.2018
Mallampati Gandhi S/o. Naga Raju, Aged about 56 years Occ: Presiding Officer, Labour Court-I, Nampally, Hyderabad.R/o.H.No.1
Warasiguda, Secunderabad.... Petitioner/Accused AND
The State of Telangana, Rep. by Special Public Prosecutor, ACB Cases. Respondent/complainant
Counsel for Petitioner : Sri C.Nageshwar Rao, Senior Counsel
for Sri Sreenivas Padala
Counsel for Respondent : Special Public Prosecutor for ACB
<Gist:
>Head Note:
? Cases referred:
1)(1987) 2 SCC 364
2)(2013) 7 SCC 466
3)2017 (4) RCR (Criminal) 646 = MANU/DE/2776/2017
4)(2005) 8 SCC 21
HONBLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Petition No.3857 of 2018
ORDER:
In this petition filed under Sections 437 and 439 Cr.P.C, the
petitioner/AO craves for bail.
2) FIR No.05/RCA-CR-1/2018 dt.16.03.2018 was registered
against AO by the Inspector of Police, ACB, City Range-I, Hyderabad
for the offence under Section 13(1)(e) r/w 13(2) of Prevention of
Corruption Act, 1988 (for short PC Act, 1988) on the allegation that
the AO, who is working as Presiding Officer, Labour Court-I,
Nampally, Hyderabad, has acquired assets worth Rs.1,96,44,000/-
disproportionate to his known source of legal income.
3) The investigation is reported to be pending.
4) The AO was arrested on 17.03.2018 and his bail application in
Crl.M.P.No.215/2018 was dismissed by the Principal Special Judge
for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil
Court, Hyderabad on 28.03.2018.
5) It is an economic offence. With mans pursuit for materialistic
pleasures increased, the economic offences started waxing. The height
of the concern for the society in recent period unfortunately is that the
law protectors, the guardians of public rights are being frequently
involved in economic and white collar offences. This is one of such
classic examples.
6) In every bail application including the offences involving
economic frauds and white collar crimes, the Courts encounter a
crucial issue of individual liberty guaranteed by the Constitution
under Article 21 on one hand and societal interest to bring the culprit
to book and see that the fair trial and impartial justice are rendered.
These two aspects being distinct poles, Courts are required to strike a
judicious balance between the two conflicting interests. That is where,
we are now.
7) Bail law on economic and white collar offences is well
delineated and no more res integra. Echoing the concern for economic
offences, which are more dangerous and having far reaching impact
on society than bodily offences, Honble Apex Court and several High
Courts have held that in dealing with such bail applications, Courts
are required to analyze and evaluate certain relevant factors
cautiously.
i) In State of Gujarat vs. Mohanlal Jitamalji Porwal and
another , the Apex Court observed thus:
Para 5: xx xx. Ends of justice are not satisfied only when the
accused in a criminal case is acquitted. The community acting
through the State and the Public Prosecutor is also entitled to justice.
The cause of the community deserves equal treatment at the hands of
the court in the discharge of its judicial functions. The community or
the State is not a persona-non-grata whose cause may be treated with
disdain. The entire community is aggrieved if the economic offenders
who ruin the economy of the State are not brought to book. A murder
may be committed in the heat of moment upon passions being
aroused. An economic offence is committed with cool calculation and
deliberate design with an eye on personal profit regardless of the
consequence to the community. A disregard for the interest of the
community can be manifested only at the cost of forfeiting the trust
and faith of the community in the system to administer justice in an
even-handed manner without fear of criticism from the quarters which
view white collar crimes with a permissive eye unmindful of the
damage done to the national economy and national interest.
ii) In Nimmagadda Prasad v. Central Bureau of Investigation ,
the Supreme Court voiced:
Para 23: Unfortunately, in the last few years, the country has been
seeing an alarming rise in white-collar crimes, which has affected the
fibre of the country's economic structure. Incontrovertibly, economic
offences have serious repercussions on the development of the country
as a whole.
Para 25: Economic offences constitute a class apart and need to be
visited with a different approach in the matter of bail. The economic
offence having deep-rooted conspiracies and involving huge loss of
public funds needs to be viewed seriously and considered as a grave
offence affecting the economy of the country as a whole and thereby
posing serious threat to the financial health of the country.
iii) In Shivani Rajiv Saxena v. Directorate of Enforcement and
others , the High Court of Delhi observed thus:
Para 13: The offence alleged against the petitioner falls under the
category of economic offences which stand on a graver footing. These
crimes are professionally committed by white-collared people which
inflict severe injuries on both health and wealth of the nation. Such
offences need to be dealt with a heavy hand and releasing such
accused on bail will affect the community at large and also jeopardize
the economy of the country. The plea of parity is also not tenable in
this case since the court did not consider, refer to and discuss the
rigours of Section 45(1) of the PMLA. Petitioner has also failed to
bring out any special circumstances for her release on bail being a
woman or sick, keeping in mind the nature and gravity of offence, bail
application is dismissed.
8) Thus the above rulings would emphasize the need to treat the
economic offences as being class apart. In the matter of dealing with
bail applications in such offences, certain parameters have been
propagated by the precedential jurimetrics.
i) In State of U.P through CBI v. Amarmani Tripathi , the
Supreme Court pointed out the factors to be observed:
Para 18: It is well settled that the matters to be considered in 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 charge; (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 tampered with; and (viii) danger, of course, of justice being
thwarted by grant of bail.
ii) In Nimmagadda Prasad (supra), the Apex Court has, succinctly
enlisted the factors to be weighed.
Para 24: While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support thereof, the
severity of the punishment which conviction will entail, the character
of the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at the
trial, reasonable apprehension of the witnesses being tampered with,
the larger interests of the public/State and other similar
considerations. It has also to be kept in mind that for the purpose of
granting bail, the legislature has used the words reasonable grounds
for believing instead of the evidence which means the court
dealing with the grant of bail can only satisfy itself as to whether
there is a genuine case against the accused and that the prosecution
will be able to produce prima facie evidence in support of the charge.
It is not expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.
With the above jurisprudence on bails, the case on hand has to
be perused.
9) Learned Senior Counsel for petitionerSri C.Nageshwar Rao,
while strongly refuting the accusation against the AO would seek for
bail on the following main plank of argument:
a) Firstly, out of the 19 items of the properties cited by the IO,
Items 1 to 4 and 6 to 13 were alone related to petitioner and his family
members and they were acquired with the prior permission of the
High Court. Whereas Items 14 to 19 do not belong to him and they
relate to his mother-in-law, sister-in-law and co-brother. If this aspect
is properly considered, there can be no scope for holding him guilty of
possessing disproportionate assets. Hence, there is no prima facie case
against him.
b) Secondly, he would argue that the Vigilance Cell of High Court
granted permission to register a case in a post-haste manner without
calling for an explanation from the Officer on his assets.
c) Thirdly, it is argued that the ACB officials already searched his
house and bank locker and seized the concerned records and nothing
more is left for further search and seizure. Added to it, the other
records relating to service particulars of the petitioner are available
with the High Court, who is the employer of the petitioner and
therefore, there is no question of petitioner either meddling with the
investigation or tampering the records.
d) Fourthly, learned counsel would submit that the AO is suffering
with multiple health problems. He is already on pacemaker in the
heart and he was recently recommended surgery for transplantation of
liver besides he is having high blood pressure. Therefore, his
continued incarceration in uncongenial and unhygienic atmosphere
would aggravate his health problems.
e) Above all, the marriage of the petitioners sonSameer is fixed
to be performed on 06.05.2018. The AO being father, his presence is
essential.
On all the above submissions, learned Senior Counsel sought
for bail.
10) In oppugnation, learned Special Public Prosecutor for
ACB(Telangana) (Spl.P.P.) would argue that with the permission of
Honble High Court a discrete enquiry was conducted against the AO
and report was submitted and thereupon the High Court accorded
permission to ACB to register FIR against AO and to proceed further
and hence, it is preposterous for the petitioner to contend that the High
Court accorded permission to register the case in a post-haste manner.
a) Secondly, arguing on the existence of prima facie case, learned
Spl.P.P. would argue that at the time of registration of FIR the
disproportionate assets were roughly assessed to a tune of
Rs.1,96,44,000/-. However, after conducting searches in six places
excluding the bank locker and the house of J.Nagakumari, sister-in-
law of AO, the disproportionate assets were revised to
Rs.2,50,40,881/-. He would emphasize that after completion of entire
investigation the value of disproportionate assets may increase further.
Hence, there exists a strong prima facie case, he would avouch.
b) Thirdly, opposing the bail, learned Spl.P.P. would submit that
the investigation is in the inceptional stage and a thorough
investigation relating to financial transactions between the
petitioner/AO and his sister-in-lawJ.Nagakumari is very much
essential. He would submit that petitioners daughter, his sister-in-law
and co-brotherPulla Rao started M/s.Deepu Constructions wherein,
from the resourceful information the IO came to know, the
petitioner/AO has pumped his ill-gotten money. There was a huge
investment of about 5 crores during the year 2014-15 by N.Pulla Rao.
Therefore, a threadbare investigation is necessary to know the
financial resources of Pulla Rao and Nagakumari and Sravani the
daughter of AO and to confirm whether the AO laundered money in
the said construction firm in their names. Learned Spl.P.P. would
further submit that the investigation has to unearth the huge amounts
paid by AO towards Margadarshi chits in the name of his family
members. The IO has to investigate about the withdrawal of Rs.41
lakhs from the bank account and expenditure details. Added to it, the
AO applied for permission to purchase 11.67 acres of agricultural land
worth Rs.32 lakhs in Yedamolu village, W.G.District. However, as
per the information secured by IO he was purchasing 14 acres of land
worth more than two crores and the said aspect also requires a
thorough investigation. In this regard, the IO has already addressed 16
letters to different authorities to secure authenticated information and
replies are being awaited from the concerned. Since the investigation
is in the crucial stage, if granted bail, the AO being a Judicial Officer
and law knowing person will certainly use his legal skills to sabotage
the investigation and thereby, the IO cannot be able to conduct a fair
investigation to disinter the truth.
c) Responding on the health problems of AO, the Spl.P.P. would
submit that on the direction of Principal Special Judge for SPE and
ACB Cases, Hyderabad, the AO was referred to NIMS wherein after
conducting all tests on 25.03.2018 and holding that his condition was
stable and normal, he was discharged from the said hospital. Any
medical requirement occurs, the jail authorities can well attend to and
therefore, on the medical ground he may not be enlarged. With regard
to the proposed marriage of AOs son, learned Spl.P.P. would
vehemently argue that in view of gravity of the offence and pending
investigation, the request may not be considered as the petitioner may
misuse his liberty to trample the crucial evidence. He thus prayed to
dismiss the bail application.
11) The point for determination is:
Whether there are merits in this petition to grant bail
12) POINT: As already discussed supra, the bail application has to
be tested on the touchstone of relevant factors propounded by the
Apex Court. The first among them is about the existence of prima
facie accusation against the AO. It is pertinent to note that as per FIR
No.05/RCA/CR/1/2018 dated 16.03.2018, the petitioner/AO joined in
Judicial Department on 05.05.1994 and thus, his check period is taken
from said date till 16.03.2018.
His income from different sources
during check period approx.: Rs. 2,87,37,000-00
His expenditure during said period Rs. 1,93,58,000-00
His likely savings Rs. 93,79,000-00
Assets in possession of AO Rs. 2,90,23,000-00
Assets disproportionate to income Rs. 1,96,44,000-00
This was the figure on the date of registration of FIR.
a) Be that it may, as per remand CD dated 18.03.2018, which was
prepared after conducting the searches in the house of AO and five
other places on 17.03.2018, the IO arrived at different figures as
follows:
His income from different sources
during check period approx.: Rs. 2,87,37,000-00
His expenditure during said period Rs. 1,98,83,000-00
His likely savings Rs. 88,54,000-00
Assets in possession of AO Rs. 3,38,94,881-00
Assets disproportionate to income Rs. 2,50,40,881-00
Thus, after conducting preliminary searches the value of
disproportionate assets increased to Rs.2,50,40,881/-. This figure does
not include in itself the worth of valuable articles recovered from the
locker of AO in SBI, Warasiguda Branch, Hyderabad. No doubt, in
the grounds of bail application, it is the contention of AO that out of
19 items cited, items 1 to 4 and 6 to 13 alone belong to him and his
family members and rest of the items belong to his sister-in-law and
others. Even if the said contention is taken into consideration, the
value of items 1 to 4 and 6 to 13 mentioned in remand report roughly
comes to Rs.2,16,78,881/-. However, his savings for the said period
were only worth Rs.88,54,000/-. Therefore, even if his contention is
accepted, still the worth of disproportionate assets comes to
Rs.1,28,24,881/- (Rs.2,16,78,881/- minus Rs.88,54,000/-).
Thus, a careful scrutiny of the aforesaid figures would manifest
that even if the contention of petitioner is accepted and some errors in
the appraisal of the income, expenditure and assets are taken into
consideration, still, AO possessing assets disproportionate to his
income cannot be ruled out at this juncture. Of course, I must hasten
that this is only a theoretical analysis to know about the existence or
non-existence of prima facie case to consider the bail application.
Ultimate truth has to be exhumed after investigation. Hence, there
exists a strong prima facie case against AO which requires a thorough
investigation.
b) The contention of petitioner that the Registry of High Court has
granted permission to register FIR in a post-haste manner does not
hold water because, the letter dated 17.03.2018 of Director General,
ACB to the Registrar General would show that upon securing
permission, the ACB at first conducted discrete enquiry against AO
and submitted a report and after satisfying with the prima facie
material, the High Court accorded permission to register the FIR
against AO. Hence it appears a methodical exercise was undertaken
prior to registration of FIR.
13) The second factor to be considered is the nature and gravity of
charge and severity of punishment in the event of conviction. The
offence alleged is under Section 13 (1)(e) r/w 13(2) of PC Act, 1988
for possessing assets disproportionate to the known sources of income
of AO. The offence is punishable with imprisonment for a term which
shall not be less than one year but which may extend to seven years
and also liable to fine. Hence going by the Schedule II of Cr.P.C., the
offence is a cognizable and non-bailable offence. Since the offence
alleged falls in the category of economic and white collar offence,
more than the term of punishment, its impact on the society in the
event of conviction being recorded shall also be taken into
consideration. It is not out of place here to mention that each time a
Judicial Officer is accused of committing bribery or other related
offence, the reputation of judicial institution itself stands for trial. The
judicial edifice is built not with bricks and cement but with belief and
confidence reposed by the public on the institution. That is why
absolute honesty and integrity are regarded as the minimum
qualifications for a Judicial Officer to hold the mace of justice. A
minutest impious deed of even a single individual will bring disrepute
to the majesty of justice. In that context, the impact of the offence has
to be viewed even at the stage of bail, particularly when prima facie
case is found out.
14) The next factor to be considered is the possibility of AO
meddling with investigation and tampering the evidence. In this
regard, the submission of Spl.P.P. is that the investigation is at the
infancy and the IO has to investigate the affairs of M/s.Deepu
Constructions wherein the daughter and sister-in-law of AO are
Directors and huge amount of Rs.5 crores was invested in it during
2014-2015 by N.Pulla Rao. The IO apprehends that the AO has
pumped in his ill-gotten money into said firm. Further, investigation is
also required to be made with regard to purchase of 14 acres of land
by AO in Yedavolu village as he obtained permission to purchase
only Ac.11.67 cts. The cost of the land is about Rs.2 crores. That
apart, investigation shall be made regarding huge amount paid by AO
towards Margadarsi Chits in the name of his family members and his
withdrawal of Rs.41 lakhs from the bank account, his purchasing the
car in the name of his mother-in-law and some other related
transactions and if AO is at large, he will meddle with investigation.
This Court finds force in the above submission. AO being Judicial
Officer, there is a possibility of his finding out the ways to stifle the
crucial evidence and scuttle the process of investigation with his legal
acumen. Such a possibility cannot be obviated. The contention of AO
that the entire investigation is completed with the searches conducted
at various places and his service record is available with the High
Court and hence, he cannot tamper with the evidence cannot be
countenanced in view of the crucial part of investigation still left over.
15) The ill-health of the petitioner/AO is concerned, the bail order
in Crl.M.P.No.215 of 2018 would show that on the direction of
Principal Special Judge for SPE and ACB Cases, Hyderabad the AO
was shifted to NIMS from Gandhi Hospital wherein after conducting
all tests the authorities discharged him finding him fit. Therefore, the
trial Court considering the discharge summary issued by NIMS, which
revealed his fit condition, did not accede to grant bail on the health
grounds. I find no reason to come to a different conclusion.
16) Sofaras the proposed marriage of AOs son is concerned, the
petitioner only produced a manuscript of lagna patrika showing the
marriage is fixed to be performed on 06.05.2018. No printed wedding
card is produced for verification. Even assuming that his sons
marriage is going to be held on 06.05.2018, in view of gravity of the
offence and pending investigation at the crucial stage, a regular and
full-fledged bail cannot be granted to AO at this stage.
17) Therefore, while dismissing the bail application, it is observed
that in case the marriage of AOs son is scheduled to take place on
06.05.2018, the petitioner/AO is given liberty to produce the wedding
card along with his affidavit affirming the said fact before the
Principal Special Judge for SPE and ACB cases, Hyderabad, in which
case the learned Judge shall direct the concerned jail authorities to
enlarge him on bail for a temporary period between 04.05.2018 and
09.05.2018 (both days inclusive) on AO executing a personal bond for
Rs.50,000/- (Rupees fifty thousand only) with two sureties each for
likesum to the satisfaction of said Court. The AO shall surrender
before the jail authorities before 5.00 PM on 09.05.2018.
_________________________
U. DURGA PRASAD RAO, J
Date: 16.04.2018
Criminal Petition No.3857 of 2018
16.04.2018
Mallampati Gandhi S/o. Naga Raju, Aged about 56 years Occ: Presiding Officer, Labour Court-I, Nampally, Hyderabad.R/o.H.No.1
Warasiguda, Secunderabad.... Petitioner/Accused AND
The State of Telangana, Rep. by Special Public Prosecutor, ACB Cases. Respondent/complainant
Counsel for Petitioner : Sri C.Nageshwar Rao, Senior Counsel
for Sri Sreenivas Padala
Counsel for Respondent : Special Public Prosecutor for ACB
<Gist:
>Head Note:
? Cases referred:
1)(1987) 2 SCC 364
2)(2013) 7 SCC 466
3)2017 (4) RCR (Criminal) 646 = MANU/DE/2776/2017
4)(2005) 8 SCC 21
HONBLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Petition No.3857 of 2018
ORDER:
In this petition filed under Sections 437 and 439 Cr.P.C, the
petitioner/AO craves for bail.
2) FIR No.05/RCA-CR-1/2018 dt.16.03.2018 was registered
against AO by the Inspector of Police, ACB, City Range-I, Hyderabad
for the offence under Section 13(1)(e) r/w 13(2) of Prevention of
Corruption Act, 1988 (for short PC Act, 1988) on the allegation that
the AO, who is working as Presiding Officer, Labour Court-I,
Nampally, Hyderabad, has acquired assets worth Rs.1,96,44,000/-
disproportionate to his known source of legal income.
3) The investigation is reported to be pending.
4) The AO was arrested on 17.03.2018 and his bail application in
Crl.M.P.No.215/2018 was dismissed by the Principal Special Judge
for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil
Court, Hyderabad on 28.03.2018.
5) It is an economic offence. With mans pursuit for materialistic
pleasures increased, the economic offences started waxing. The height
of the concern for the society in recent period unfortunately is that the
law protectors, the guardians of public rights are being frequently
involved in economic and white collar offences. This is one of such
classic examples.
6) In every bail application including the offences involving
economic frauds and white collar crimes, the Courts encounter a
crucial issue of individual liberty guaranteed by the Constitution
under Article 21 on one hand and societal interest to bring the culprit
to book and see that the fair trial and impartial justice are rendered.
These two aspects being distinct poles, Courts are required to strike a
judicious balance between the two conflicting interests. That is where,
we are now.
7) Bail law on economic and white collar offences is well
delineated and no more res integra. Echoing the concern for economic
offences, which are more dangerous and having far reaching impact
on society than bodily offences, Honble Apex Court and several High
Courts have held that in dealing with such bail applications, Courts
are required to analyze and evaluate certain relevant factors
cautiously.
i) In State of Gujarat vs. Mohanlal Jitamalji Porwal and
another , the Apex Court observed thus:
Para 5: xx xx. Ends of justice are not satisfied only when the
accused in a criminal case is acquitted. The community acting
through the State and the Public Prosecutor is also entitled to justice.
The cause of the community deserves equal treatment at the hands of
the court in the discharge of its judicial functions. The community or
the State is not a persona-non-grata whose cause may be treated with
disdain. The entire community is aggrieved if the economic offenders
who ruin the economy of the State are not brought to book. A murder
may be committed in the heat of moment upon passions being
aroused. An economic offence is committed with cool calculation and
deliberate design with an eye on personal profit regardless of the
consequence to the community. A disregard for the interest of the
community can be manifested only at the cost of forfeiting the trust
and faith of the community in the system to administer justice in an
even-handed manner without fear of criticism from the quarters which
view white collar crimes with a permissive eye unmindful of the
damage done to the national economy and national interest.
ii) In Nimmagadda Prasad v. Central Bureau of Investigation ,
the Supreme Court voiced:
Para 23: Unfortunately, in the last few years, the country has been
seeing an alarming rise in white-collar crimes, which has affected the
fibre of the country's economic structure. Incontrovertibly, economic
offences have serious repercussions on the development of the country
as a whole.
Para 25: Economic offences constitute a class apart and need to be
visited with a different approach in the matter of bail. The economic
offence having deep-rooted conspiracies and involving huge loss of
public funds needs to be viewed seriously and considered as a grave
offence affecting the economy of the country as a whole and thereby
posing serious threat to the financial health of the country.
iii) In Shivani Rajiv Saxena v. Directorate of Enforcement and
others , the High Court of Delhi observed thus:
Para 13: The offence alleged against the petitioner falls under the
category of economic offences which stand on a graver footing. These
crimes are professionally committed by white-collared people which
inflict severe injuries on both health and wealth of the nation. Such
offences need to be dealt with a heavy hand and releasing such
accused on bail will affect the community at large and also jeopardize
the economy of the country. The plea of parity is also not tenable in
this case since the court did not consider, refer to and discuss the
rigours of Section 45(1) of the PMLA. Petitioner has also failed to
bring out any special circumstances for her release on bail being a
woman or sick, keeping in mind the nature and gravity of offence, bail
application is dismissed.
8) Thus the above rulings would emphasize the need to treat the
economic offences as being class apart. In the matter of dealing with
bail applications in such offences, certain parameters have been
propagated by the precedential jurimetrics.
i) In State of U.P through CBI v. Amarmani Tripathi , the
Supreme Court pointed out the factors to be observed:
Para 18: It is well settled that the matters to be considered in 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 charge; (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 tampered with; and (viii) danger, of course, of justice being
thwarted by grant of bail.
ii) In Nimmagadda Prasad (supra), the Apex Court has, succinctly
enlisted the factors to be weighed.
Para 24: While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support thereof, the
severity of the punishment which conviction will entail, the character
of the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at the
trial, reasonable apprehension of the witnesses being tampered with,
the larger interests of the public/State and other similar
considerations. It has also to be kept in mind that for the purpose of
granting bail, the legislature has used the words reasonable grounds
for believing instead of the evidence which means the court
dealing with the grant of bail can only satisfy itself as to whether
there is a genuine case against the accused and that the prosecution
will be able to produce prima facie evidence in support of the charge.
It is not expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.
With the above jurisprudence on bails, the case on hand has to
be perused.
9) Learned Senior Counsel for petitionerSri C.Nageshwar Rao,
while strongly refuting the accusation against the AO would seek for
bail on the following main plank of argument:
a) Firstly, out of the 19 items of the properties cited by the IO,
Items 1 to 4 and 6 to 13 were alone related to petitioner and his family
members and they were acquired with the prior permission of the
High Court. Whereas Items 14 to 19 do not belong to him and they
relate to his mother-in-law, sister-in-law and co-brother. If this aspect
is properly considered, there can be no scope for holding him guilty of
possessing disproportionate assets. Hence, there is no prima facie case
against him.
b) Secondly, he would argue that the Vigilance Cell of High Court
granted permission to register a case in a post-haste manner without
calling for an explanation from the Officer on his assets.
c) Thirdly, it is argued that the ACB officials already searched his
house and bank locker and seized the concerned records and nothing
more is left for further search and seizure. Added to it, the other
records relating to service particulars of the petitioner are available
with the High Court, who is the employer of the petitioner and
therefore, there is no question of petitioner either meddling with the
investigation or tampering the records.
d) Fourthly, learned counsel would submit that the AO is suffering
with multiple health problems. He is already on pacemaker in the
heart and he was recently recommended surgery for transplantation of
liver besides he is having high blood pressure. Therefore, his
continued incarceration in uncongenial and unhygienic atmosphere
would aggravate his health problems.
e) Above all, the marriage of the petitioners sonSameer is fixed
to be performed on 06.05.2018. The AO being father, his presence is
essential.
On all the above submissions, learned Senior Counsel sought
for bail.
10) In oppugnation, learned Special Public Prosecutor for
ACB(Telangana) (Spl.P.P.) would argue that with the permission of
Honble High Court a discrete enquiry was conducted against the AO
and report was submitted and thereupon the High Court accorded
permission to ACB to register FIR against AO and to proceed further
and hence, it is preposterous for the petitioner to contend that the High
Court accorded permission to register the case in a post-haste manner.
a) Secondly, arguing on the existence of prima facie case, learned
Spl.P.P. would argue that at the time of registration of FIR the
disproportionate assets were roughly assessed to a tune of
Rs.1,96,44,000/-. However, after conducting searches in six places
excluding the bank locker and the house of J.Nagakumari, sister-in-
law of AO, the disproportionate assets were revised to
Rs.2,50,40,881/-. He would emphasize that after completion of entire
investigation the value of disproportionate assets may increase further.
Hence, there exists a strong prima facie case, he would avouch.
b) Thirdly, opposing the bail, learned Spl.P.P. would submit that
the investigation is in the inceptional stage and a thorough
investigation relating to financial transactions between the
petitioner/AO and his sister-in-lawJ.Nagakumari is very much
essential. He would submit that petitioners daughter, his sister-in-law
and co-brotherPulla Rao started M/s.Deepu Constructions wherein,
from the resourceful information the IO came to know, the
petitioner/AO has pumped his ill-gotten money. There was a huge
investment of about 5 crores during the year 2014-15 by N.Pulla Rao.
Therefore, a threadbare investigation is necessary to know the
financial resources of Pulla Rao and Nagakumari and Sravani the
daughter of AO and to confirm whether the AO laundered money in
the said construction firm in their names. Learned Spl.P.P. would
further submit that the investigation has to unearth the huge amounts
paid by AO towards Margadarshi chits in the name of his family
members. The IO has to investigate about the withdrawal of Rs.41
lakhs from the bank account and expenditure details. Added to it, the
AO applied for permission to purchase 11.67 acres of agricultural land
worth Rs.32 lakhs in Yedamolu village, W.G.District. However, as
per the information secured by IO he was purchasing 14 acres of land
worth more than two crores and the said aspect also requires a
thorough investigation. In this regard, the IO has already addressed 16
letters to different authorities to secure authenticated information and
replies are being awaited from the concerned. Since the investigation
is in the crucial stage, if granted bail, the AO being a Judicial Officer
and law knowing person will certainly use his legal skills to sabotage
the investigation and thereby, the IO cannot be able to conduct a fair
investigation to disinter the truth.
c) Responding on the health problems of AO, the Spl.P.P. would
submit that on the direction of Principal Special Judge for SPE and
ACB Cases, Hyderabad, the AO was referred to NIMS wherein after
conducting all tests on 25.03.2018 and holding that his condition was
stable and normal, he was discharged from the said hospital. Any
medical requirement occurs, the jail authorities can well attend to and
therefore, on the medical ground he may not be enlarged. With regard
to the proposed marriage of AOs son, learned Spl.P.P. would
vehemently argue that in view of gravity of the offence and pending
investigation, the request may not be considered as the petitioner may
misuse his liberty to trample the crucial evidence. He thus prayed to
dismiss the bail application.
11) The point for determination is:
Whether there are merits in this petition to grant bail
12) POINT: As already discussed supra, the bail application has to
be tested on the touchstone of relevant factors propounded by the
Apex Court. The first among them is about the existence of prima
facie accusation against the AO. It is pertinent to note that as per FIR
No.05/RCA/CR/1/2018 dated 16.03.2018, the petitioner/AO joined in
Judicial Department on 05.05.1994 and thus, his check period is taken
from said date till 16.03.2018.
His income from different sources
during check period approx.: Rs. 2,87,37,000-00
His expenditure during said period Rs. 1,93,58,000-00
His likely savings Rs. 93,79,000-00
Assets in possession of AO Rs. 2,90,23,000-00
Assets disproportionate to income Rs. 1,96,44,000-00
This was the figure on the date of registration of FIR.
a) Be that it may, as per remand CD dated 18.03.2018, which was
prepared after conducting the searches in the house of AO and five
other places on 17.03.2018, the IO arrived at different figures as
follows:
His income from different sources
during check period approx.: Rs. 2,87,37,000-00
His expenditure during said period Rs. 1,98,83,000-00
His likely savings Rs. 88,54,000-00
Assets in possession of AO Rs. 3,38,94,881-00
Assets disproportionate to income Rs. 2,50,40,881-00
Thus, after conducting preliminary searches the value of
disproportionate assets increased to Rs.2,50,40,881/-. This figure does
not include in itself the worth of valuable articles recovered from the
locker of AO in SBI, Warasiguda Branch, Hyderabad. No doubt, in
the grounds of bail application, it is the contention of AO that out of
19 items cited, items 1 to 4 and 6 to 13 alone belong to him and his
family members and rest of the items belong to his sister-in-law and
others. Even if the said contention is taken into consideration, the
value of items 1 to 4 and 6 to 13 mentioned in remand report roughly
comes to Rs.2,16,78,881/-. However, his savings for the said period
were only worth Rs.88,54,000/-. Therefore, even if his contention is
accepted, still the worth of disproportionate assets comes to
Rs.1,28,24,881/- (Rs.2,16,78,881/- minus Rs.88,54,000/-).
Thus, a careful scrutiny of the aforesaid figures would manifest
that even if the contention of petitioner is accepted and some errors in
the appraisal of the income, expenditure and assets are taken into
consideration, still, AO possessing assets disproportionate to his
income cannot be ruled out at this juncture. Of course, I must hasten
that this is only a theoretical analysis to know about the existence or
non-existence of prima facie case to consider the bail application.
Ultimate truth has to be exhumed after investigation. Hence, there
exists a strong prima facie case against AO which requires a thorough
investigation.
b) The contention of petitioner that the Registry of High Court has
granted permission to register FIR in a post-haste manner does not
hold water because, the letter dated 17.03.2018 of Director General,
ACB to the Registrar General would show that upon securing
permission, the ACB at first conducted discrete enquiry against AO
and submitted a report and after satisfying with the prima facie
material, the High Court accorded permission to register the FIR
against AO. Hence it appears a methodical exercise was undertaken
prior to registration of FIR.
13) The second factor to be considered is the nature and gravity of
charge and severity of punishment in the event of conviction. The
offence alleged is under Section 13 (1)(e) r/w 13(2) of PC Act, 1988
for possessing assets disproportionate to the known sources of income
of AO. The offence is punishable with imprisonment for a term which
shall not be less than one year but which may extend to seven years
and also liable to fine. Hence going by the Schedule II of Cr.P.C., the
offence is a cognizable and non-bailable offence. Since the offence
alleged falls in the category of economic and white collar offence,
more than the term of punishment, its impact on the society in the
event of conviction being recorded shall also be taken into
consideration. It is not out of place here to mention that each time a
Judicial Officer is accused of committing bribery or other related
offence, the reputation of judicial institution itself stands for trial. The
judicial edifice is built not with bricks and cement but with belief and
confidence reposed by the public on the institution. That is why
absolute honesty and integrity are regarded as the minimum
qualifications for a Judicial Officer to hold the mace of justice. A
minutest impious deed of even a single individual will bring disrepute
to the majesty of justice. In that context, the impact of the offence has
to be viewed even at the stage of bail, particularly when prima facie
case is found out.
14) The next factor to be considered is the possibility of AO
meddling with investigation and tampering the evidence. In this
regard, the submission of Spl.P.P. is that the investigation is at the
infancy and the IO has to investigate the affairs of M/s.Deepu
Constructions wherein the daughter and sister-in-law of AO are
Directors and huge amount of Rs.5 crores was invested in it during
2014-2015 by N.Pulla Rao. The IO apprehends that the AO has
pumped in his ill-gotten money into said firm. Further, investigation is
also required to be made with regard to purchase of 14 acres of land
by AO in Yedavolu village as he obtained permission to purchase
only Ac.11.67 cts. The cost of the land is about Rs.2 crores. That
apart, investigation shall be made regarding huge amount paid by AO
towards Margadarsi Chits in the name of his family members and his
withdrawal of Rs.41 lakhs from the bank account, his purchasing the
car in the name of his mother-in-law and some other related
transactions and if AO is at large, he will meddle with investigation.
This Court finds force in the above submission. AO being Judicial
Officer, there is a possibility of his finding out the ways to stifle the
crucial evidence and scuttle the process of investigation with his legal
acumen. Such a possibility cannot be obviated. The contention of AO
that the entire investigation is completed with the searches conducted
at various places and his service record is available with the High
Court and hence, he cannot tamper with the evidence cannot be
countenanced in view of the crucial part of investigation still left over.
15) The ill-health of the petitioner/AO is concerned, the bail order
in Crl.M.P.No.215 of 2018 would show that on the direction of
Principal Special Judge for SPE and ACB Cases, Hyderabad the AO
was shifted to NIMS from Gandhi Hospital wherein after conducting
all tests the authorities discharged him finding him fit. Therefore, the
trial Court considering the discharge summary issued by NIMS, which
revealed his fit condition, did not accede to grant bail on the health
grounds. I find no reason to come to a different conclusion.
16) Sofaras the proposed marriage of AOs son is concerned, the
petitioner only produced a manuscript of lagna patrika showing the
marriage is fixed to be performed on 06.05.2018. No printed wedding
card is produced for verification. Even assuming that his sons
marriage is going to be held on 06.05.2018, in view of gravity of the
offence and pending investigation at the crucial stage, a regular and
full-fledged bail cannot be granted to AO at this stage.
17) Therefore, while dismissing the bail application, it is observed
that in case the marriage of AOs son is scheduled to take place on
06.05.2018, the petitioner/AO is given liberty to produce the wedding
card along with his affidavit affirming the said fact before the
Principal Special Judge for SPE and ACB cases, Hyderabad, in which
case the learned Judge shall direct the concerned jail authorities to
enlarge him on bail for a temporary period between 04.05.2018 and
09.05.2018 (both days inclusive) on AO executing a personal bond for
Rs.50,000/- (Rupees fifty thousand only) with two sureties each for
likesum to the satisfaction of said Court. The AO shall surrender
before the jail authorities before 5.00 PM on 09.05.2018.
_________________________
U. DURGA PRASAD RAO, J
Date: 16.04.2018
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