TMI Blog2012 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... he factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. In the facts and circumstances of the case, Court is inclined to bail to the Petitioners. It is, therefore, directed that the Petitioners be released on bail on their furnishing a personal bond in the sum of ₹ 5 lakhs with two sureties of the like amount eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swiss Timing Omega. According to learned counsel in fact the tender was not finalized by the organizing committee. In view of the complaints received, the matter was referred to the Central Government and the sub-committee of the Central Government consisting of senior Secretary level officers held that there was no illegality or irregularity in the procurement process and it would be appropriate to award the tender to Swiss Timing Omega. Relying on Gurcharan Singh and others vs. State (Delhi Administration, 1978 (1) SCC 118 and Sanjay Chandra vs. CBI, 2011(13) SCALE 107 it is contended that the gravity of the allegations have to be seen on the basis of the punishment prescribed by the Code and not by what the media reports. In Sanjay Chandra (supra) their Lordship ‟ s granted bail even though the allegation was for offences under Section 409 read with 120B IPC, which is punishable upto life. Learned counsel further contends that a number of board meetings were held and as is evident from the board meeting dated 5th July, 2008 insistence was to procure from companies that had well established record. There is no denial that Swiss Timing Omega performed in the Olympics, Asian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes stated that this was the best decision in the situation. On a note prepared by the Petitioner V.K. Verma the matter was referred to the Government for intense scrutiny. Even after the intense scrutiny the committee comprising of senior officers reiterated the decision to award tender to STL. 4. Learned counsel for the Petitioner V.K. Verma further submits that when the charge sheet was filed on 25th May, 2011, there was no mention about the statement of Jarnail Singh, CEO as a witness. When arguments on bail were heard on 1st June, 2011, CBI produced an ante dated statement of Jarnail Singh. In his statement, Jarnail Singh disowned his note and stated that the files were only routed through him. The contents of the letter and notes are not disputed and it is an admitted fact that meetings took place. The fact that Pan American Games were not considered by the Organizing Committee was for the reason that even in the past, Olympic Games never considered Pan American Games to be a qualifying event for consideration. Even though in the meetings Pan American Games was discussed, however ultimately it was unanimously decided in the presence of two prosecution witnesses that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring trial and thus, the Petitioner be granted bail who has been in custody for more than 10 months. There is no justification for keeping him behind the bars any further. 6. Learned counsel for the CBI focusses his arguments on four reasons urged by the Petitioners for grant of bail i.e. the law laid down by the Hon ‟ ble Supreme Court in Sanjay Chandra v. CBI and other judgments, delay in proceedings, charge under Section 467 IPC being not made out and reliance on certain documents to show that it was a well deliberated decision wherein the witnesses and senior officers of the Government were party. It is contended that in Sanjay Chandra (supra) the Hon ‟ ble Supreme Court reiterated the guidelines laid down in its earlier decisions in Gurcharan Singh v. State, (1978)1 SCC 118, Babu Singh v. State of U.P., (1978) 1 SCC 579 and State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21. The ratio laid down by all the judgments is that if the accused is of such a character that his mere presence at large would intimidate the witnesses, it is a good ground to deny bail. References are made to the statements of witnesses PW2 V.K. Gautam, Chief Operating Officer, PW-1 Suj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all powers were centralized in the Petitioners and Mr. Bhanot, who were controlling all the decisions. In the charge-sheet there are prima facie allegations of forgery which have been confirmed by the CFSL report. If the Pan American Games were also included then other players in the field of this device would have also been included and thus there would have been more competition. A perusal of the letters written by the Ministry of Youth Affairs and Sports clearly shows that there was no other option but to go ahead with the decision to award contract to STL due to paucity of time. Further the Central Government examined the documents only in reference to the complaints received and not for the purpose of re-validating the action taken by the Petitioners. 9. As regards the medical condition it is submitted that the Petitioner Suresh Kalmadi ‟ s condition is stable and he is provided with the best medical treatment. His condition is all right as is evident from the fact that he even approached this Court seeking permission to attend the Parliament. Thus, bail should not be granted to the Petitioners. 10. I have heard learned counsel for the parties. Brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanning and work required to deliver the services was significant, however this note was returned by the office of Petitioner V.K. Verma with the remark that no action was required on that file and PW-1 was dissuaded from processing the matter for open tender and to prepare a scope of work for STL instead. Thereafter, a draft RFP was put up by the Technology F.A. on 29th August, 2009. Even this RFP was manipulated and tampered with and the decisions taken thereon in the 8th OCFC meeting were fabricated. In the RFP the Pan American Games were excluded so as to oust a number of players. To further disqualify a competitor of STL, the Petitioner V.K.Verma once again tampered with the conditions of RFP and got deleted the word or thereby making it Timing Scoring and Result Management system instead of Timing Scoring or/and Result Management system. It was falsely stated that the decisions to delete the word or was taken on the directions of PW-3 Rahul Verma, Joint Secretary IST, Ministry of Youth Affairs and Sports. In fact no such meeting took place. In order to suppress the dissent, PW-2 V.K. Gautam was divested of his supervision of the Technology F.A. and vide order dated 13th O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 15. In the instant case, as we have already noticed that the pointing finger of accusation against the Appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the Appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the Petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the Petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the OCFC on 6th November, 2009. PW-2 also had an exchange of words with the Petitioner Suresh Kalmadi on 13th October, 2009 whereafter the work of Technology F.A. was taken away from him and he was put under V.K. Verma. According to this witness the situation in O.C. became so unbearable that he proceeded on long leave from 20th December, 2009 citing personal reasons. PW-6 V.K. Saxena has stated that Kalmadi told him that STL had to be selected for the TSR system and Verma assured that he was sure that the Committee members knew how this had to be done. Petitioner V.K. Verma also threatened the witness PW-6 that if he qualified M/s. MSL he will have to face a CBI enquiry. Thus, to release the pressure being exerted on PW-6 to select STL only, PW-6 recorded his reasons for passing both STL and MSL and circulated his views to all members of the Committee which views formed a part of the Minutes of the Committee ‟ s decision. PW-1 Sujit Panigrahi who was also Technology expert agreed with the views of PW-6. Thereafter, Petitioner Suresh Kalmadi got angry with PW-6 and expressed his displeasure by observing that he knew how to get it corrected. 15. Thus, in nutshell ..... 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