*THE HONOURABLE SRI JUSTICEN.R.L.NAGESWARA RAO
+ CRIMINAL PETITION NO.13303 OF 2011
# State rep. by Central Bureau of Investigation, Anti Corruption Branch, Hyderabad,
$ V.D.Rajgopal son of D.Narasimhulu
!Counsel for the Petitioner: Sri P.Kesava Rao, SPL.SC FOR CBI
Counsel for the Respondent: Sri C.Padmanabha Reddy, Senior Counsel
? Cases referred:
- (2005) 8 SCC 21 = AIR 2005 SC 3940
- (2011) 5 SCC 296
THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
CRL.P.No.13303 OF 2011
01. This is an application filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 to cancel the bail granted to the respondent herein who is arrayed as Accused No.3 in the charge-sheet filed by the C.B.I.
02. The identity of this case is known because of its publicity and also the magnitude of fraud and huge gains involved in illegal mining. The respondent/A-3 is said to be the Director of Mining and Geology of Government of Andhra Pradesh, who worked in that capacity from 01-08-2005 to 20-03-2010. Obulapuram Mining Company(O.M.C)/A4 is said to be owned by a powerful politician and influential person by name Gali Janardhana Reddy and his brother, who claims to have acquired the rights in that Company. More details of his acquisition are not very much necessary for the purpose of this case. There has been consistent complaints of illegal mining and also illegal activities of the O.M.C. which obtained the lease and the Government itself had to issue G.O.Rt.No.723 dated 25-11-2009 on the basis of report of a Committee which has gone into the allegations of illegal mining and found prima facie violations and the respondent herein, who was the Director of Mining and Geology, was also directed to take immediate action. It is also to be noted for a brief reference that the Supreme Court has also on complaint of large scale violations and involving huge financial gains has appointed a Committee, which is known as “Empowerment Committee” and the Empowerment Committee has submitted its report finding prima facieand almost conclusive material about the illegal activities in the mining area owned by the O.M.C. The C.B.I has registered a case in R.C.17(A)/2009 on 07-12-2009 and as against that O.M.C. has gone in Writ and the proceedings were stayed for some time and ultimately investigation was permitted to be taken up by virtue of the orders dated 16-12-2010 in Writ Appeal No.532 of 2010. Thereafter, in the course of investigation the C.B.I has arrested Accused Nos.1 and 2 representing O.M.C. and the respondent herein was arrested on 12-11-2011 and was taken to police custody for a period of one week and thereafter the charge sheet was filed on 03-12-2011. Subsequently, the respondent has filed the application for bail in Crl.M.P.No.2368 of 2011 and the learned C.B.I. Judge by his order dated 15-12-2011, which is under appeal, granted bail. The grievance of the C.B.I is that the reasons given by the learned Judge are not at all valid and reliance of the judgment of the Supreme Court pertaining to 2-G Scam wherein some of the accused by name Sanjay Chandra and others were said to have been released, has no application to the facts of this case. It is also further pleaded that the learned Judge has not taken into consideration the basic principles of grant of bail before applying the above judgment and the learned Judge also did not consider any of the objections which are valid and in the interest of justice to deny the bail and consequently the order of bail suffers from arbitrariness, non-application of mind and giving scope for defeating the cause of further investigation and justice.
03. However, Sri C.Padmanabha Reddy, the learned Senior Counsel representing the respondent strongly contends that the personal liberty of the respondent is a primary consideration and the investigation so far as the respondent is concerned, even according to the C.B.I., is over and his detention in the prison is not warranted. According to him, the constitutional right of freedom has to be protected and he reiterated the principles which were exhaustively referred to by the Supreme Court in the above case of Sanjay Chandra.
04. Before considering the rival contentions, I am aware of the limitations that the cancellation of the bail by a Court is a power to be exercised sparingly and generally the interference is not called for. But, however, the power to consider the validity of the order and the non-application of mind and arbitrariness of the court in granting the bail cannot be ignored and if such order is passed, it is the duty of this Court to correct it.
05. The learned Judge has not evidently considered any of the objections seriously raised by the C.B.I. about its apprehensions. The learned Judge has taken the case of Sanjay Chandra and this present case as similar and consequently on the principle laid down in that case as to the grant of bail when investigation is completed, so far as this accused is concerned, the benefit of bail was granted.
06. It is quite clear that the learned Judge has not gone into the facts of Sanjay Chandra’s case. There cannot be any dispute about the legal principles about the right of bail enunciated in the above case with reference to the several decisions referred therein. It is also to be noted that no two cases will be similar and it is for the Judge to assess and find out the relevancy of the cases. The law also recognizes the power of Court to withhold bail in particular cases. In Sanjay Chandra’s case it was not one where the accused were arrested during the course of investigation. It was a case where the accused were summoned after filing of the charge sheet and on the date of their appearance, they were remanded to judicial custody. The substantial question raised was about the legality of such remand. Added to that, in that case applications were repeatedly filed and dismissed and after commencement of the trial and examination of some of the witnesses, the court was inclined to grant bail since they are not public servants and their custody was not required. The petitioners in those applications were the representatives of the Companies who got some benefit. It is to be noted that still in 2-G Scam the principal accused who was erstwhile Minister and his Private Secretary, who is a public servant, are not yet released by the Court. The learned Judge has failed to take into consideration these facts and failed to note as to at what stage the Supreme Court has applied the principles of liberty and right to bail in that case. Therefore, the sole ground on which the learned Judge has granted bail is not tenable and though there cannot be any dispute about the principle of right to bail, the question is whether the case on hand warrants release at this stage. It is also to be noted that the bail application of one of the public servants who was involved in that case was denied by the High Court, making a clear distinction between the case of a public servant and the case of Sanjay Chandra and others. It will be relevant to refer to the decision in State of U.P Vs. Amarmani Tripathi wherein the accused was a minister, accused of murder, the Supreme Court has held in para.18 as under:-
“it is well settled that the matters to be considered in an application for bail are (1) 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 (see Prahlad Singh Bhati Vs. NCT, Delhi and Gurcharan Singh Vs. State (Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant of bail stated in Kalyanchandra Sarkar v. Rajesh Rajan:
“11. The law in regard to grant or refusal is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)”
07. Keeping in view the above law, it is important to note that the respondent was the Director of Mines and Geology and being a public servant, his brother-in-law by name D.Rajasekhar was inducted as a Director of O.M.C. w.e.f. 11-07-2005, though he is said to have submitted resignation as Director on 17-02-2007, he is said to have filed the application on 23-07-2007 for grant of lease. The principles of law and duties of the public servants are quite clear to the effect that whenever a close member of the family is associated with any business, firm or any activity, he shall distance himself and disassociate from any of the decisions benefiting the said Company. But, however, in this case the respondent has not done so. The material collected by the investigating agency clearly goes to show that he was instrumental in processing and granting of lease to O.M.C. under his supervision only and when he is accountable for checking the illegalities of the subject of mining under his control, he has not taken any action. At this stage, it is suffice for me to say that he was a mute spectator of the illegalities in mining which was found true by the Empowerment Committee of the Supreme Court and also the Three-member Committee constituted by the Government of A.P. A reasonable inference of collusion or conspiracy can be prima facie drawn. Though the respondent may take a defence that the permits for transportation of the ore was only issued by his subordinate, it is difficult to believe that by due exercise of care and taking note of the complaints which were pouring in, the respondent could not have prevented the illegalities. Therefore, this is a case where the respondent consciously and knowingly allowed the illegalities in mining, evidently, to benefit O.M.C. in which his brother-in-law was a Director. The question as to whether the respondent has ignored the valid applications of others who gave complaints is a matter to be decided after the trial. Therefore, there is sufficient material of involvement of the respondent in conspiracy and the investigation done by the C.B.I is to that effect only. This accusation, if proved, is punishable.
08. The bail was claimed and granted on the ground that the investigation is completed and charge sheet is filed so far as the respondent is concerned. It is to be noted that crime as it was registered relates to the complicity of several persons having acted in conspiracy. If such is the case, it is the liability of all the conspirators that has to be investigated into and investigation in a crime is said to be completed only when the entire final report is submitted in the registered crime against all the accused persons. In fact, it is the claim of the C.B.I. that the investigation is not yet completed and against the co-conspirators the charge sheet is not filed. In fact, the charge sheet filed in the Court clearly shows that there was active involvement of another public servant against whom the investigation is to be completed. Apart from it, it is the objection of the C.B.I. that ill-gotten wealth has to be traced since there are allegations of demand of money. Therefore, the learned Judge has erred in coming to an opinion that the investigation in this case is completed.
09. Added to that the matter is before Supreme Court with regard to gravity of illegal mining by the Accused No.1 with O.M.C and other Companies in Bellary. It will be apt here to extract the order dated 18-11-2011 of the Supreme Court in S.L.P.7366-7367/2010 as under:-
“In the Status report filed in C.B.I case No.R.C.17(A)/2009, Hyderabad (Obulapuram Mining Case) it has been stated that C.B.I will complete the investigation and file the charge sheet on or before 04-12-2011, after taking into account the stipulated period of 90 days. The investigation is being carried out on day-to-day basis under the supervision of Joint Director, C.B.I, Hyderabad. Place the matter on 20-01-2012, on which date this Court would like to see the charge sheet which the C.B.I proposes to file.”
10. If one goes by experience, such an order passed by the Supreme Court to go through the charge sheet is a rare order. One should understand the severity of the crime and the concern of the Court. Nobody knows as to what direction the Supreme Court may give after going through the said charge-sheet to the C.B.I. This should not have been ignored by the learned Judge. Not only that even today the learned Judge has not applied his mind and taken charge-sheet on file. That being the situation, a judicious mind should be over-cautious in dealing with the cases of this nature.
11. When the case itself is at preliminary stage and investigation is not completed, it is a far cry to consider that the trial may not be completed early and the accused has to languish in jail for a longer time. This is not a practical factor to be considered at this stage. In fact, so far as the apprehensions with regard to delayed trial and also granting of bail to the other accused persons is concerned, the Supreme Court has considered these aspects in Central Bureau of Investigation, Hyderabad Vs. Subramani Gopalakrishnan and another. At this stage, it is too early to decide as to whether trial will take long time and if there are any undue delays.
12. So far as the apprehension of the C.B.I about the interference with the further investigation by the respondent is concerned, it cannot be easily ignored. The reason is investigation against the co-conspirators is not completed and in fact there seems to be a blame game between the public servants and when the respondent has got personal interest in O.M.C. where his brother-in-law was Director and association of the respondent with Accused Nos.1 and 2 is said to be close, then there is every possibility of tampering with the investigation or influencing the investigation involving the co-conspirators. That is the reason as to why in the decision referred above, the Supreme Court has stated that while granting the bail the Court has to take into consideration the character, behaviour, means, position and standing of the accused and also the danger of justice being thwarted by grant of bail. It can be said that these considerations are applicable to the facts of this case.
13. Therefore, I have no hesitation in holding that the order of bail granted by the learned Judge is arbitrary without applying the principles of law concerning case of this nature and drawing unnecessary inferences from other cases. The bail granted therefore is liable to be cancelled for the following reasons:-
1. There is more than sufficient and conclusive material gathered about the illegalities and illegal mining when the respondent was in control of the Mining Department as per the report of the Empowerment Committee of the Supreme Court and also the Three-member Committee appointed by the Government of A.P. Further the investigation has also establishes serious offences;
2. The respondent being public servant has got personal and undue interest in O.M.C in which his brother-in-law was Director and thereby the theory of conspiracy to benefit A-4 cannot be said to be ill-founded;
3. The theory that the investigation is completed is not correct since the investigation in the entire crime is not completed and as against the co-conspirators the investigation is still in progress and at a vital stage;
4. When the respondent has got personal interest and when the investigation against the co-conspirators is not yet completed, if he is to be on bail, taking into consideration his character, power etc., the interference with the investigation and influencing it cannot be ruled out when witnesses are coming forth to give the evidence which is vital.
5. The Court itself has not applied its mind and not yet taken the charge sheet on file;
6. Last but not the least is the fact that the Supreme Court itself intended to see the charge sheet, posted the matter to 20-01-2012, the purpose of it can only be known only on the date of hearing of the case and the orders to be passed by the Supreme Court;
7. Finally, it is said that an unscrupulous politician in a position of authority finds willing accomplices even in the top echelons of administration who will go to any length of making or braking rules or law as may be necessary to oblige them or curry their favour or personal gains and it is this scenario which is most disturbing and needs to be tackled with seriousness.
14. In view of the circumstances stated above, it will be an adventure to grant a bail to the respondent at this stage.
15. Accordingly, the Criminal Petition is allowed and the order in Crl.M.P.2368 of 2011 is set aside and petition is dismissed.
N.R.L. NĀGESWARA RĀO,J
L.R. Copy to be marked: YES
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