Section 8 in The Prevention Of Corruption Act, 1988

Section 8 in The Prevention Of Corruption Act, 1988

8. Taking gratification, in order, by corrupt or illegal means, to influence public servant.- Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for including, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

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In the High Court of Jharkhand at Ranchi

Cr.M.P.No.1264 of 2013

Raj Kumar Agrawal..............................Petitioner VERSUS

Central Bureau of Investigation....... Opposite Party CORAM: HON'BLE MR. JUSTICE R.R.PRASAD

For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate For the C.B.I : Mr. M. Khan, Advocate

5/ 18.6.13. When huge amount of Rs.2,14,88,000/- was seized from a vehicle bearing registration no.JH-05-AC-2185, Deputy Director (Investigation), Income Tax Department, Ranchi informed about it to the Officer-in-Charge of Namkum Police Station for taking necessary action. Upon it, a case was registered as Namkum P.S. case no.58 of 2012 under Sections 171(F)/188 read with Section 34 of the Indian Penal Code against Sudhanshu Tripathy, representative of Shah Sponge Limited and others. Meanwhile, Public Interest Litigation bearing W.P (PIL) No.1801 of 2012 and W.P.(PIL) No.1802 of 2012 was filed before this Court highlighting malpractices being adopted by the candidates for the election of Rajya Sabha. This Court having found prima facie a grave case of involvement of money power, horse trading influencing voters, the members of the Legislative Assembly relating to process of election of council of Sates, directed the Election Commission to hand over the matter to the C.B.I. Accordingly, investigation of aforesaid Namkum Police Station Case was taken over by the C.B.I, who got it renumbered as R.C.02(S) of 2012-AHD-R.

In course of investigation, statements of some of the persons were recorded under Section 164 of the Code of Criminal Procedure, who disclosed the name of certain M.L.As to whom the petitioner had given money for casting votes in his favour. Thereupon a petition was filed on 20.4.2012 by the Investigating Officer before the Court stating therein that the petitioner and others seems to have 2

committed offence punishable under Sections 7, 8, 12 of the Prevention of Corruption Act and as such, prayer was made to issue search warrant. The prayer made by the C.B.I was allowed. In spite of such prayer being made, C.B.I did not do anything to get the case registered under Sections 7,8,12 of the Prevention of Corruption Act. When notice under Section 160 of the Code of Criminal Procedure was issued, petitioner being apprehensive that he would be arrested filed an anticipatory bail application, bearing A.B.A No.581 of 2013 before the Judicial Commissioner, Ranchi who transferred the case to the court of Special Judge,C.B.I, who having found the case being registered under Section 171(F)/188 read with Section 34 of the Indian Penal Code rejected it as non-maintainable after making certain observation which is as follows :

" The petitioner is not named in the FIR.

Investigating Officer of this case has

summoned the petitioner to appear before

him on 5.4.2013 for the purpose of

answering certain questions relating to

case. From perusal of the order dated

20.4.2012, it does transpired that learned

court below has anywhere held in its order

that prima facie case under Sections 7,8,12

of the Prevention of Corruption Act is made

out, still the case is under Sections

171(F)/188 read with Section 34 of the

Indian Penal Code which is bailable in

nature."

Thereafter the petitioner surrendered before the Sub- divisional Judicial Magistrate-cum-Special Judge, C.B.I, Ranchi on 9.4.2013 and filed an application for bail wherein prayer was made to admit the petitioner on bail as the offences alleged are bailable. However, submission was made on behalf of the C.B.I that though the petitioner is not named in the FIR but certain materials have been collected showing commission of the offences of the Indian Penal Code as well as Prevention of Corruption Act. The court having found that the offences under which FIR has been registered are bailable and also taking into account the observation 3

made by the learned Special Judge are bailable and that the C.B.I has still not instituted the case for commission of the offences under Sections 7,8,12 of the Prevention of Corruption Act granted bail to the petitioner, vide its order dated 9.4.2013. On the very next day, i.e.10.4.2013, an application was filed for adding Sections 7,8,12,13 and 15 of the Prevention of Corruption Act in the FIR earlier instituted which prayer was allowed. Thereafter an application was filed before the C.B.I under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to the petitioner, who after hearing the parties, cancelled the bail, vide its order dated 7.5.2013 after holding that in spite of the case being registered under the bailable offences, the court should have taken into account the materials collected and placed before the court showing commission of the offences under Sections 7,8, and 12 of the Prevention of Corruption Act, notice of which had been taken by the Court while issuing search warrant against the petitioner. Thus, it was held that the court has granted bail to the petitioner improperly. Hence, the bail was cancelled. It does appear that after the bail was cancelled, the petitioner was taken into custody.

Being aggrieved with the said order cancelling bail, this application has been filed.

Mr.Anil Kumar Sinha, learned Sr. Counsel appearing for the petitioner submitted that admittedly on the day when the bail has been granted to the petitioner by the learned Magistrate, offences alleged by the time were bailable and even the learned Special Judge who has cancelled the bail had observed while disposing of the anticipatory bail application of the petitioner that the offences under which case has been registered are bailable and by holding so, anticipatory bail application was dismissed as non- maintainable. The conduct of the C.B.I does not seems to be fair as 4

if the C.B.I had collected materials showing commission of the offence punishable under the Prevention of Corruption Act, it ought to have been pointed out to the court.

It was further submitted that once a person is granted bail of the offences bailable in nature, bail granted to that person never warrants to be cancelled if during investigation the case turns out to be a case of commission of offence of non-bailable and thereby learned Special Judge certainly committed illegality in cancelling the bail granted to the petitioner earlier.

In this regard it was further submitted that though the bail has been cancelled on filing application under Section 439(2) of the Code of Criminal Procedure but the C.B.I has never been able to make out a case for cancellation as it is never the case of the C.B.I that the petitioner after being released on bail had interfered or attempted to interfere with due course of administration of justice or evaded or attempted to evade due course of justice or abused the concession granted to the petitioner in any manner and it has never been made out a case to show that the petitioner would possibly abscond and thereby the court cancelling the bail certainly committed illegality and therefore, order under which bail of the petitioner has been cancelled warrants to be set aside. Learned counsel did fairly submits that in a situation where bail is granted in the event of offence being bailable but in course of investigation, the case turns out to be a case of commission of offence of non-bailable offences, the bail never warrants to be cancelled on that ground but the person needs to take a fresh bail which proposition gets reflected from the decision rendered in a case ofPrahlad Singh Bhati vs. NCT, Delhi and another [(2001) 4 SCC 280] and also in a case of Hamida vs Rashid @ Rasheed and others [(2008) 1 SCC 474 ] but the court did not take into 5

account this aspect of the mater while cancelling the bail of the petitioner.

As against this, Mr.M.Khan, learned counsel appearing for the C.B.I submitted that no doubt it is true that on the day when the bail was granted the offences under which FIR has been instituted were bailable but the materials had been placed before the court, who granted bail, to the effect that certain materials have been collected showing commission of the offence by the petitioner under the Prevention of Corruption Act but the court below did not take into account this aspect of the matter, rather went on the levelling of the section and not on the nature of the offence alleged to have been committed and thereby the court can certainly be said to have committed illegality in granting bail and when learned Special Judge, in the circumstances, found the bail being granted improperly, cancelled the bail it did not commit any illegality and hence, it never warrants to be quashed.

Having heard learned counsel appearing for the parties, it does appear that the case had initially been instituted under Sections 171(F)/188 read with Section 34 of the Indian Penal Code. When the investigation was taken over by the C.B.I under the order of this Court, it registered the case for the same offences and went on investigating the case. After proceeding with investigation for several months, one application seems to have been filed before the court below on 20.4.2012 stating therein about the commission of offence under the Prevention of Corruption Act and prayed for issuance of search warrant which was issued. Upon it, when the petitioner apprehended his arrest, he filed an anticipatory bail application before the learned Sessions Judge who transferred the case before the Special Judge, C.B.I and the learned Judge having recorded that offences under which the case has been registered are bailable did hold that anticipatory bail application is not 6

maintainable. In that event, the petitioner surrendered before the court below who granted bail after taking into account the observation made by the learned Special Judge and also of the fact that the offence under Sections 7, 12,13 and 15 of the Prevention of Corruption Act has not been registered.

In such situation, I do not find any illegality with the order granting bail. However, on the very next day when those offences under the Prevention of Corruption Act was added in the FIR, an application for cancellation of bail was filed under Section 439(2) of the Code of Criminal Procedure which was cancelled holding that learned Magistrate while taking the case to be bailable in nature did not consider the plea taken by the C.B.I that certain materials have been collected showing commission of the offence under the Prevention of Corruption Act and that he should not have been guided by the observation made by the higher court in a bail application but the fact is that it was the Special Judge, who after noticing the aforesaid fact of commission of offence also under Sections 7,8, and 12 of the Prevention or Corruption Act, did hold that offence is bailable in nature and taking into account this aspect of the matter and also the fact that on the day of grant of bail, the case had not been registered under Sections 7,8, and 12 of the Prevention of Corruption Act bail had been granted and hence, the court seems to have committed illegality in cancelling the bail particularly when C.B.I has failed to make out a case of cancellation as has been stipulated under Section 439(2) of the Code of Criminal Procedure. Under the circumstances, the Special Judge, C.B.I seems to have committed illegality in cancelling the bail and thereby the order cancelling the bail is hereby set aside. 7

However, the question still does arise upon finding the order of cancellation being not justified, whether the petitioner is required to be released?

To answer this question, I need not to travel for rather to refer to a case of Prahlad Singh Bhati vs. NCT, Delhi and another (supra) wherein it has been held that with the change in the nature of the offence, he accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.

Similar view seems to have been taken by the Hon'ble Supreme Court in a case of Hamida vs Rashid @ Rasheed and others (supra). In that case FIR was registered under Section 324, 352 and 506 of the Indian Penal Code, though according to informant, it should have been registered under Section 307 of the Indian Penal Code. The accused was granted bail. During investigation, the injured died and the case was registered under Section 304 of the Indian Penal Code. Thereupon an application was filed before the High Court under Section 482 of the Code of Criminal Procedure praying therein to direct the C.B.I to permit them to remain on the same bail. Even after conversion of the offence of the offence into one under Section 304 of the Indian penal Code, that prayer was allowed by the High Court and when the matter was challenged before the Supreme Court, the Hon'ble Supreme Court quashed the order passed by the High Court after holding that such kind of order never warrants to be passed in an application filed under Section 482 of the Code of Criminal Procedure. In that event, the Hon'ble Supreme passed an order for taking the accused into custody forthwith but at the same time, it was observed that the accused would be at liberty to apply for bail for the offences for which they are charged before the appropriate court in accordance with law.

8

Coming to the case in hand, it be reiterated that the petitioner was granted bail on being found the offence alleged being bailable. However, subsequent to that the petitioner has been alleged to have committed offence under the Prevention of Corruption Act.

In such situation, he, in view of the decision referred to above, becomes disentitled to the liberty granted to him in relation to minor offence and needs to move for bail and since the petitioner is in custody, no order relating to his release warrants to be passed. However, it is observed that if such application for regular bail in filed, the same be disposed of in accordance with law without being prejudiced by the fact that the bail had been cancelled and that the case is being monitored by the High Court. Thus, this application stands disposed of.

( R.R.Prasad, J.)