2011 (6) TMI 759 - HC - Indian Laws

Bail denied in conspiracy case citing risk of interference & influence. Legal principles upheld.

The bail applications under Section 439 Cr.P.C. were dismissed due to prima facie evidence of the petitioners' involvement in a significant conspiracy ... Custody in the context of Section 439 Cr.P.C. - judicial control/submission to court as constitutive of custody - power to remand while adjourning under Section 309 Cr.P.C. - discretion under Section 204 Cr.P.C. to issue summons or warrant - power of court to take bond for appearance under Section 88 Cr.P.C. - principles governing grant or refusal of bail (nature and gravity of accusation; prima facie evidence; risk of absconding; risk of influencing witnesses; character/antecedents)Custody in the context of Section 439 Cr.P.C. - judicial control/submission to court as constitutive of custody - Whether persons who appear pursuant to summons and submit to the court's jurisdiction can be treated as 'in custody' for the purposes of Section 439 Cr.P.C., permitting remand to judicial custody. - HELD THAT: - The court accepted the settled exposition of the Supreme Court that 'custody' for Section 439 is not limited to physical detention by police but includes being under the control of the court by surrender or physical presence and submission to its orders. The court relied on precedents which hold that appearance before the court pursuant to summons brings the accused within the court's control and therefore within the ambit of 'custody' until the bail application is decided. Consequently, when the Special Judge rejected the petitioners' request for release and adjourned under Section 309 Cr.P.C., their physical custody vested with the court and remand to judicial custody on adjournment could not be faulted. [Paras 31, 32, 33]Appearance pursuant to summons and submission to the court placed the petitioners 'in custody' for Section 439 Cr.P.C. and the Special Judge validly remanded them to judicial custody while adjourning under Section 309 Cr.P.C.Power of court to take bond for appearance under Section 88 Cr.P.C. - processes to compel appearance under Sections 87 and 88 Cr.P.C. - Whether Sections 87 and 88 Cr.P.C. entitled the petitioners (accused of non-bailable offences) to be released on furnishing bond when they appeared pursuant to summons. - HELD THAT: - The court held that Sections 87 and 88 are procedural provisions governing processes to secure appearance and the court's power to require bonds; they do not supplant the specific statutory regime for bail in non-bailable cases contained in Section 437 Cr.P.C. Section 88 is discretionary ('may') and applies generally to persons present in court; it does not create a substantive right to release of an accused facing non-bailable charges. Accordingly, the petitioners' presence pursuant to summons under Section 204 Cr.P.C. did not automatically entitle them to be set at liberty on bond in place of consideration under the bail provisions applicable to non-bailable offences. [Paras 34, 35, 36, 37, 38]Sections 87 and 88 Cr.P.C. do not confer a right to release on bond in non-bailable cases; the question of bail must be decided under the provisions and principles governing non-bailable offences (Section 437 Cr.P.C.).Discretion under Section 204 Cr.P.C. to issue summons or warrant - issue of summons does not preclude subsequent remand - Whether the Special Judge's choice to issue summons under Section 204 Cr.P.C. precluded him from remanding the petitioners to custody when they appeared. - HELD THAT: - The court held that the discretion under Section 204 to issue summons or warrant is exercised to procure the accused's presence and does not constitute a determination on grant or refusal of bail. Issuance of a summons cannot be construed as an assurance that the accused will not be detained on appearance. Consequently, the Special Judge's earlier exercise of discretion to issue summons did not bar him from considering bail and, if appropriate, remanding the accused to custody upon appearance. [Paras 39, 40, 41]Issuance of summons under Section 204 Cr.P.C. does not prevent the court from remanding an accused to custody after appearance; the court retains discretion to decide bail under the applicable provisions.Principles governing grant or refusal of bail - prima facie evidence - risk of influencing witnesses or thwarting investigation - Whether the petitioners should be admitted to bail on merits in view of the allegations and evidence in the charge-sheet. - HELD THAT: - Applying settled principles, the court took a prima facie view of the material collected during investigation without undertaking a detailed trial like scrutiny. The charge-sheet disclosed a circuitous flow of funds into the petitioners' company, contemporaneous and proximate transfers, a reverse trail after investigative contact with a co-accused, lack of contemporaneous documents supporting the alleged loans, and the petitioners' managerial control and political connections. These factors, cumulatively, gave rise to a prima facie case of complicity and created reasonable apprehension that, if released, the petitioners could influence witnesses or impede investigation. Having weighed the nature and gravity of accusations, the character of evidence, and the risk of interference/absconding, the court concluded that bail was not appropriate at this stage. [Paras 47, 50, 51, 52, 53]Bail applications dismissed: on cumulative consideration of prima facie evidence, gravity of allegations and risk of interference with investigation, the petitioners are not entitled to bail at this stage.Final Conclusion: The High Court held that (i) appearance pursuant to summons and submission to the court places an accused within the court's custody for the purposes of Section 439 Cr.P.C., permitting remand to judicial custody when bail is refused; (ii) Sections 87 and 88 Cr.P.C. do not confer a right to release on bond in non-bailable cases; (iii) issuance of summons under Section 204 Cr.P.C. does not preclude subsequent remand; and (iv) on prima facie appraisal of the charge-sheet and risk factors, bail was refused and the petitioners' applications were dismissed. Nothing in the order is a finding on merits. Issues Involved:1. Bail Applications under Section 439 Cr.P.C.2. Allegations of Criminal Conspiracy and Misconduct3. Procedural Aspects of Custody and Remand4. Interpretation of Sections 87 and 88 Cr.P.C.5. Judicial Discretion in Granting Bail6. Prima Facie Evidence and Nature of AccusationDetailed Analysis:1. Bail Applications under Section 439 Cr.P.C.The accused sought bail under Section 439 Cr.P.C. in relation to FIR No. RC-DAI-2009-A-0045 registered by the CBI for criminal conspiracy and misconduct in the allocation of UAS Licences and 2G spectrum.2. Allegations of Criminal Conspiracy and MisconductThe prosecution alleged a criminal conspiracy involving public servants and private individuals, including the accused, to manipulate the Department of Telecommunications' policy for personal gain. The charge sheet detailed how the policy was altered to benefit specific companies, leading to significant financial loss to the state.3. Procedural Aspects of Custody and RemandThe petitioners argued that they were not in custody when they appeared before the Special Judge pursuant to summons under Section 204 Cr.P.C. They contended that the court erred in remanding them to judicial custody as they were not previously detained. The court referred to Supreme Court judgments to clarify that 'custody' under Section 439 Cr.P.C. includes being under the court's control, even if not physically detained.4. Interpretation of Sections 87 and 88 Cr.P.C.The petitioners argued that under Sections 87 and 88 Cr.P.C., they should be released on bond upon appearance. The court clarified that these sections pertain to processes for ensuring appearance and do not mandate bail for non-bailable offenses. The court emphasized that judicial discretion under Section 88 Cr.P.C. does not override the specific provisions of Section 437 Cr.P.C. for non-bailable offenses.5. Judicial Discretion in Granting BailThe court discussed various precedents emphasizing the balance between personal liberty and the interests of justice. Factors such as the nature and gravity of the accusation, the severity of potential punishment, and the risk of the accused absconding or tampering with evidence were highlighted as crucial in deciding bail applications.6. Prima Facie Evidence and Nature of AccusationThe court found prima facie evidence indicating the petitioners' involvement in the conspiracy and receipt of illegal gratification. The detailed money trail and the timing of transactions suggested an attempt to conceal the bribe. Given the petitioners' political and financial influence, the court deemed it inappropriate to grant bail, fearing potential interference with the investigation and witness tampering.Conclusion:The bail applications were dismissed based on the prima facie evidence of the petitioners' involvement in a significant conspiracy causing substantial financial loss to the state. The court emphasized the risk of interference with the investigation and the potential influence over witnesses due to the petitioners' political and financial clout. The decision was made considering the established legal principles and the specific circumstances of the case.