TMI Blog2018 (3) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... ce punishable under Section 8 of Prevention of Corruption Act. The punishment for commission of the offence punishable under Section 8 is imprisonment for a term which may extend to five years with fine. Settled position is that generally bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity - There appears no possibility of the petitioner to flee from justice. His parents are senior advocates; he has family to take care of; he has roots in the society and is not a previous convict. The petitioner is entitled for bail - the petitioner is admitted to bail on his furnishing personal bond in the sum of ₹ 10 lacs with one surety in the like amount to the satisfaction of the Trial Court - petition allowed in part. - Bail Appln. 573/2018 - - - Dated:- 23-3-2018 - HON'BLE MR. JUSTICE S. P. GARG For the Petitioner : Mr.Kapil Sibbal, Sr.Advocate; Dr.Abhishek Manu Singhvi, Sr.Advocate; Mr.Gopal Subramaniam, Sr.Advocate; Mr.Dayan Krishnan, Sr.Advocate; Mr.Mohit Mathur, Sr.Advocate with Mr.Arshdeep Singh, Mr.Amit Bhandari, Mr.Prateek Chadha, Ms.Aakashi Lodha, Mr.Akshat Gupta, Mr.Adity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intention to make a downstream financial investment to the extent of 26% of the issued and outstanding equity share capital of INX News . 7. The FIPB at its meeting held on 18.05.2007 recommended the proposal of INX Media for consideration and approval of the then Finance Minister. However, the FIPB did not approve the downstream investment by INX Media in INX News . The recommendation of FIPB was approved by the then Finance Minister, the petitioner s father. 8. The FIPB issued a press release dated 30.05.2007 indicating the details of proposals approved in the FIPB meeting. The quantum of FDI / NRI inflow against INX Media was shown as ₹ 4.62 crores. The approval was intimated vide a letter dated 31.05.2007. 9. In the FIR, it is alleged that in contravention of the terms of the approval of FIPB conveyed vide letter dated 31.05.2007, INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News . The downstream investment included Indirect Foreign Investment by the same foreign investors and generated more than ₹ 305 crores Foreign Direct Investment in INX Media as against the approved foreign infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior officials of the Ministry of Finance not only granted illegal approval, but also misinformed the investigation by the Investigation Wing of the Income Tax in this regard. 15. It is further alleged that in consideration for the services rendered by the petitioner to the INX Group, through CMS , payments were received against invoice raised on INX Media by ASC . As per source information, the reason for getting the invoice raised in the name of ASC for services rendered by CMS was to conceal the identity of the petitioner, since he was Promoter Director of CMS , when the invoice was raised and the payment was received. 16. Case of the prosecution is that ASC was being controlled by the petitioner indirectly. It is further alleged that invoices for approximately 3.5 crores were raised in favour of the INX Group in the name of other companies, in which the petitioner had sustainable interests either directly or indirectly. Such invoices were fasely raised for creation and acquisition of media content; consultancy in respect of market research; acquisition of content of various genre of audio or video, etc. INX Group, in its records, mentioned the purpose of pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to appear before the Investigating Officer on 23.08.2017 along with necessary documentation in his possession for his defence. Complying with the said orders, the petitioner appeared before the Investigating Officer on 23.08.2017 and was questioned for about eight hours. He again voluntarily appeared before the investigating agency on 28.08.2017 to be interrogated for around seven hours. 21. On 20.11.2017, the petitioner was permitted to travel to United Kingdom from 01.12.2017 to 10.12.2017 by the Hon ble Supreme Court and after availing the said permission, he duly returned to India on 10.12.2017. By an order dated 31.01.2018, the Supreme Court directed Madras High Court to hear the writ petition and dispose it off within two months. It is informed that Madras High Court has reserved the order after hearing arguments. From 15.02.2018 to 28.02.2018 again the petitioner was permitted to travel abroad i.e. United Kingdom by Madras High Court. 22. It is urged that upon petitioner s return from United Kingdom on 28.02.2018, the respondent CBI in a wholly illegal and arbitrary manner arrested him from the Chennai airport without disclosing any grounds or reasons for his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial custody for the last two years. The present criminal proceedings are malafide and are borne out of vendetta. 27. Learned Addl. Solicitor General urged that the filing of the instant bail application before this Court directly is an abuse of process of law. The present application is not maintainable before this Court as the petitioner had filed similar bail application to seek bail before the learned Special Judge and it was listed for hearing on 15.03.2018. Before that, the learned Trial Court had granted police custody remand to CBI and the petitioner was in CBI s custody till 12.03.2018. The orders granting police custody remand to CBI were never challenged by the petitioner. 28. It is emphasized that during police custody remand, the petitioner remained evasive throughout and declined to answer even normal basic questions. In spite of completely non-cooperative attitude of the petitioner, the investigating agency was able to gather substantial evidence suggesting that ASC and other entities are benami entities of the petitioner and are controlled by him. The investigation spread across various parts of the country is still in process and is at a very crucial s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the statements of various officers of CMS and statement of Indrani Mukherjea recorded under Section 164 Cr.P.C. to buttress the submissions. 32. Incriminating evidence showing that invoice was raised by ASC for the services rendered by CMS in the garb of consultancy was collected. It has been established beyond reasonable doubt that the petitioner is the ultimate beneficial owner of ASC . Investigation revealed that telephone bills of CMS , personal bills of mobile phones, maintenance charges of the office of the petitioner including other similar expenses are being paid and settled by ASC . It has been urged that during investigation the petitioner caused destruction of evidence. 33. It is further urged that statements of senior officers of FIPB were recorded and it was found that receipt of excess Foreign Investment by INX Media over and above the approved FDI, has not been dealt with properly. Such officers, on the issue relating to downstream investment have stated that had such facts be known to them, they would not have recommended the proposal of INX News for approval. 34. It is further contended that the petitioner during his visits abroad has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on assignment by this Court. As the bail application before learned Special Judge has already been dismissed as withdrawn , no useful purpose will be served to direct the petitioner to first approach the Trial Court to seek bail. 37. It is not at issue that both the Sessions Court and the High Court have concurrent jurisdiction to entertain the bail application under Section 439 Cr.P.C. There is no bar to the petitioner to approach the High Court to seek bail under Section 439 Cr.P.C. without first exhausting his remedy before the Sessions Court. Of course, it is desirable that the Trial Court must first be moved or approached before directly filing the application before High Court. 38. In the case of Sandeep Kumar Bafna vs. State of Maharashtra , AIR 2014 SC 1745, Hon ble Supreme Court permitted the petitioner therein to surrender before the High Court and thereafter to consider his bail application under Section 439 Cr.P.C. It was held that there were no restrictions to the High Court to entertain an application for bail provided the accused was in custody . 39. Considering the peculiar facts and circumstances of the case and the withdrawal of the application for bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 42. Bearing in mind the above parameters / principles while considering an application for bail, the facts of the present case are being noted and appreicated. 43. The petitioner was arrested in this case on 28.02.2018 by the CBI from Chennai airport and was produced before the Duty Magistrate, Patiala House Courts to seek fifteen days police custody remand. The learned Metropolitan Magistrate committed the petitioner to police custody till 01.03.2018. The police custody remand was subsequently extended from time to time and it remained in force till 12.03.2018. On 12.03.2018, CBI filed an application seeking fifteen days judicial custody remand of the petitioner. In the remand application, CBI informed the learned Special Judge that as during police custody, the petitioner was evasive and non-cooperative, no more police custody re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has, however, been offered for the inordinate delay in lodging the FIR. 46. During investigation, statements of Indrani Mukherjea under Section 161 Cr.P.C. and 164 Cr.P.C. implicating the petitioner were recorded on 07.12.2017 and 17.02.2018 respectively. It is pertinent to note that Indrani Mukherjea was already in judicial custody in a murder case. In her statement, she did not offer any reasonable explanation for not implicating the petitioner and others at the earliest. Pratim Mukherjea @ Peter Mukherjea who is stated to be one of the accused in the FIR has yet not been arrested; his statement either under Section 161 Cr.P.C. or 164 Cr.P.C. has not been recorded so far. According to Indrani Mukherjea s statement recorded under Section 164 Cr.P.C. she met the petitioner in June, 2008 at Hotel Hyatt and a demand of one million US dollars for settling / resolving the issues with FIPB was raised. Advance payment of ₹ 10 lacs to be given through the banking channel in India as a part of demand of one million US dollars was asked for. This disclosure came to be made by Indrani Mukherjea on 17.02.2018 for the first time before the Chief Metropolitan Magistrate after reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther evidence is considered and found to be satisfactory. The difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well- established .. 50. During investigation, the prosecution recorded statements of senior officers under Section 161 Cr.P.C. who were at the helm of affairs at FIPB at the relevant time of grant of necessary approvals. They did not attribute or assign any specific and definite role to the petitioner in the crime. None of the senior officers claimed to have ever been approached or influenced in the grant of approvals by the petitioner. The said senior officers (names are not being disclosed here) did not name any official in the FIPB who was ever prevailed upon by the petitioner or his associates to impact their decision. During the entire investigation, none of the public servants has been identified or apprehended so far who was allegedly approached or influenced by the petitioner to scuttle the action against INX Media for the irregularities or illegalities committed by them. The senior officers merely informed the investigating agency that had the past history of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced on record by the investigating agency and certain information received from the financial institutions abroad is not relevant for the disposal of the bail application in the instant FIR. The investigating agency will be at liberty to raise all these issues in the said proceedings. 53. The petitioner has filed an additional affidavit before the Supreme Court categorically stating that all his assets are lawfully acquired, recorded in his books of accounts and are disclosed in all his statutory filings. The family has no other overseas property except one acquired legally. The only banking activity conducted by him during his visits to U.K. post registration of the FIR related to two accounts (account and sub-account) that were maintained by him with Metro Bank, U.K. and subsequent access to banking facility due to closure of the said bank account at the unilateral instance of the Metro Bank after complying with all statutory and KYC norms. The said account was opened in Metro Bank in U.K. only on 01.06.2016 and a linked sub-account was opened in November, 2016 by the very same bank. He further stated that he had never held any bank account abroad prior to that barring the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvict. 58. In a recent judgment Data Ram Singh vs. State of U.P. Ors. in Crl.A.227/2018 decided on 06.02.2018, Supreme Court observed : 2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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