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TMI Blog2014 (9) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to be mentioned, it is shown as 'Not Arrested'. 4. After the cognizance of the offence was taken by learned Special Judge/CBI, the Petitioner was summoned by learned Trial Court. On 01.09.2014 the Petitioner appeared before the Court alongwith his counsel and filed an application under Section 437 Cr.P.C. praying for his release on bail. After hearing learned counsel for the Petitioner and learned Senior PP for the CBI, the prayer of the Petitioner for release on bail was rejected. 5. Now the Petitioner is seeking bail in the instant case on the following grounds:- (i) The Petitioner had a distinguished career in Indian Army spread over 39½ years and he retired as Lt.General in July, 2010. During his tenure as above, he had unblemished record. (ii) The Petitioner has been falsely implicated in this case and there is no legally admissible material against him. (iii) The Petitioner filed a criminal complaint for defamation when a false statement was made by Gen.V.K.Singh (Retd.) against the Petitioner and instant case is a counterblast of the same. (iv) The Petitioner has appeared before learned Trial Court on the first date and there is no chance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colleagues. It is further submitted that the incident dated 22.09.2010 was immediately brought to the notice of Raksha Mantri by the then Chief of Army Staff, which fact is confirmed by the Raksha Mantri in his statement under Section 161 Cr.P.C. Thus, in the given circumstances, the Petitioner does not deserve to be released on bail. 7. I have heard Mr.Kapil Sibal, learned Senior Advocate for the Petitioner and Mr.Sanjeev Bhandari, learned Standing Counsel for the CBI. 8. Mr.Kapil Sibal, learned Senior Advocate appearing for the Petitioner submitted that when the Petitioner had appeared immediately on receiving the summons and chargesheet being filed against him without arrest, learned Special Judge/CBI should have enlarged the Petitioner on bail especially when in other matters where chargesheets have been filed by the CBI against accused persons involved in other cases, learned Special Judge/CBI had been passing orders to release the accused persons on bail noting the facts that : (i) The accused co-operated during investigation; (ii) Not arrested during investigation; (iii) Appeared at first instance on issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;16.23 That during investigation, Gen.V.K.Singh had claimed to have recorded the alleged conversation between him and Lt.Gen.(Retd.) Tejinder Singh on 22.9.2010. However, the same was not provided by him to the investigating agency despite efforts.' 10. Mr.Kapil Sibal, learned Senior Advocate for the Petitioner has also contended that as per the appointment sought, the purpose of visit of the Petitioner to the COAS was courtesy visit and such type of conversation could not have been recorded by COAS and even if, it was recorded, why there are two different version on this issue i.e. (i) as per the complaint, the recorded conversation handed over to CBI, and (ii) despite best efforts, the said recorded conversation not handed over. Mr.Kipal Sibal, learned Senior Advocate submitted that the Petitioner has clean antecedents and he retired from a senior post in Indian Army. The prosecution is mainly based on documentary evidence and statement of the Complainant and other witnesses holding high position, thus the contention of CBI that Petitioner can influence the witnesses or tamper with evidence, is without any substance. 11. Mr.Sanjeev Bhandari, learned Standing Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) On other issues of corruption, while Gen.V.K.Singh (Retd.) had acted as per defence regulations, why despite his (Raksha Mantri) recommendations for strictest action, COAS chose not to take any action. (v) The incident came to light through the report in the newspaper 'The Hindu' dated 26.03.2012 and the letters dated 30.09.2012 and 10.04.2012 by Gen.V.K.Singh (Retd.). (vi) Gen.V.K.Singh, COAS retired on 30.04.2012. (vii) CBI registered case RC No.AC-1(2012)A/0014/CBI, New Delhi on 19.10.2012 in respect of incident dated 22.09.2010. (viii) (a) Chargesheet filed on 15.07.2014; (b) Cognizance taken by learned Special Judge on 28.08.2014; (c) Petitioner summoned as an accused for 01.09.2014. Thus, there were just two working days in between from the date of taking the cognizance and date fixed for appearance of the accused (29th August, 2014 as Friday and 30th August, 2014 as Saturday). The prompt process serving agency got the service effected and Petitioner appeared on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he influence of an accused person can no doubt be a ground for denial of bail in a case where the apprehension expressed by the investigating agency is genuine and where there are sufficient prima facie reasons to believe that he would influence the witnesses or tamper the evidence to deny the bail to him, but at the same time such a status, position can also be valid consideration to show that the accused has roots in the society and is therefore not going to run away from the processes of law. He will permit and make himself available during the course of investigation or the trial as the case may be. In the instant case the statements of witness have already been recorded. No doubt, the petitioner was holding a sensitive and a high position, but I feel that this is a case where he will not be able to influence the investigation which is almost already complete. Most of the evidence against him is in the nature of recoveries and the documentary evidence regarding the recovery of huge ill gotten money both from his residence in Delhi as well as from Chennai which he cannot tamper. Apart from this, the concern of the investigating agency regarding the tampering of evidence or influ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of S. 437 Cr.P.C makes a dichotomy in dealing with non-bailable offences. The first category relates to offences punishable with death or imprisonment for life and the rest are all other non-bailable offences. With regard to the first category, S. 437(1) Cr.P.C imposes a bar to grant of bail by the Court or the officer in charge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, Therefore, at the stage of investigation unless there are some materials to justify an officer or the court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under S. 437(1), Cr.P.C against granting of bail. On the other hand, if to either the officer in charge of the police station or to the court there appear to be reasonable grounds to believe that the accused has been guilty of such an offence there will be no question of the court or the officer granting bail to him. In all other non-bailabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being; (iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and (v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. 18. On the premise of aforesaid principles, it can safely be said that while considering the application under Section 437 Cr.P.C court cannot be oblivious of firstly the fact that Investigating Officer did not deem it necessary to either arrest the accused during investigation or forward him in custody under Section 170 Cr.P.C while filing the charge sheet under Section 173 Cr.P.C; secondly that the court while taking cognizance did not find the circumstances existing in Section 87 Cr.P.C while procuring the appearance of the accused through warrant of arrest that the accused has either been absconding or is concealing himself and issued summons for him. Ordinarily th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. (iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons. (iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C. (v) The Court shall on appearance of an accused in non- boilable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 439, Cr.P.C.' 21. Reverting to the facts of the present case, at no stage, CBI expressed its apprehension that the Petitioner is abusing his position or exploiting his links with his ex-colleagues or had made any attempt to influence the witnesses or tamper with the evidence. Generally, CBI investigates the cases which involves national and international ramifications or where people holding high positions of power and influence or political clout are involved and not the cases of the nature of petty offences. The case of the Petitioner should have been distinguished by learned Special Judge/CBI from other cases wherein learned Special Judge/CBI ordered the release of accused persons on bail who were not arrested during investigation. (see para 8 of this order). Since learned Special Judge/CBI herself has observed that law of land should be equal for all, it applied to the case of the Petitioner also especially when directions to this effect have already been issued by this Court in Court On Its Own Motion v. Central Bureau of Investigation (Supra). 22. It is necessary to note here the submission made by learned Sr.PP for the CBI before learned Special Judge/CBI, while opposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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