TaxTMI 
TaxTMI 
2011 (11) TMI 861
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....acy and criminal misconduct against the unknown officials of Department of Telecommunications, Government of India and some unknown private persons/companies and others under Section 120B IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in respect of allotment of Letters of Intent, Unified Access Services (hereinafter referred to as "UAS") Licenses and 2G Spectrum by the Department of Telecommunications. CBI had filed the first charge sheet on 02.04.2011 in the Court of learned Special Judge, Patiala House Courts, New Delhi against A.Raja, the then Minister of Communications and Information Technology (A-1), Siddhartha Behura, the then Secretary, Telecom (A-2), R. K. Chandolia, the then P.S. to the Minister (A-3), Shahid Balwa and Vinod Goenka, Directors, M/s Swan Telecom Pvt. Ltd. (A-4 and A-5 respectively). M/s Swan Telecom Pvt. Ltd (A-6), Sanjay Chandra, Managing Director, M/s Unitech Wireless Tamil Nadu Ltd. (A-7), M/s Unitech Wireless Tamil Nadu Ltd. (A-8), Gautam Doshi, Group Managing Director of Reliance, ADA Group (A-9), Surendra Pipara, Group President of Reliance, Anil Dhirubhai Ambani Group (A-10), Hari Nair, Sr. Vice Presi....
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....arad Kumar and Kanimozhi, that in view of the orders of the Supreme Court in Sanjay Chandra's case (supra) granting them regular bail in respect of the aforesaid FIR, the present petitioners are placed on a much better footing, and therefore, they also deserve to be enlarged on bail. The learned senior counsel has handed a comparative chart of charges, which were framed against Sharad Kumar and Kanimozhi in comparison to the other accused persons, who were granted bail by the Apex Court. It was contended that the charges against Sharad Kumar and Kanimozhi were much milder and carrying lesser punishment than the one in respect of which the bail was granted by the Apex Court. It was further contended that this was in addition to the common charges, which were framed against all the 17 accused persons. To give an over-view of comparison of these charges, I deem it proper to reproduce the comparative table of the charges given by the learned senior counsel. Substantive Individual Charges Name Charges Name Charges Accused granted bail Accused seeking bail Sanjay Chandra (A-7) Section 420 r/w 120B IPC Kanimozhi Karunanithi (A-17) Section 12 r/w sectio....
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....ct it was a genuine loan transaction between M/s.Cineyug Media and Kalaingar TV and which amount actually stood repaid in the month of February, 2011, therefore, there was absolutely no question of petitioners either tampering with the evidence. It was further contended that this fact is fortified by the fact that even the CBI did not have any objection for the grant of bail to the present petitioners in respect of the aforesaid offences and yet this plea of the CBI was not accepted. It is contended that the learned Special Judge has erroneously observed that the petitioners are highly placed and influential persons, and therefore, there is a likelihood of their influencing the witnesses, while as there was absolutely no prima facie evidence or much less likelihood in this regard. 12. Lastly, Mr.Ahmed, the learned senior counsel, has contended that the Apex Court has granted bail to the five accused persons in this very FIR taking cognizance of the fact that the accused are charged of economic offence of huge magnitude and if proved, it may jeopardize the economy of the country, yet at the same time, the Court observed that it cannot lose the sight of the fact that the charge sh....
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....rned senior counsel placed reliance in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors., (1985) 1 SCC 260 and M/s.Bayer India Ltd. & Ors. Vs. State of Maharashtra & Ors., (1993) 3 SCC 29 to contend that by virtue of Article 141 of the Constitution, the orders and the directions, which were passed by the Apex Court in Sanjay Chandra's case (supra) are binding on this Court in order to maintain "hierarchical system of Courts". 16. So far as, Kanimozhi's case is concerned, it was also argued by Mr. Ahmed, the learned senior counsel that in her case by virtue of Proviso to Section 437, if the accused is a woman, she is entitled to a bail even if the offence, which is alleged to have been committed by her carries life imprisonment, as this is the mandate of the legislature, a woman, a sick person and a person under the age of 16 has been treated as a separate Class in itself and given special treatment. It is further contended that if this limitation has been removed in the case Magistrate, obviously, this Court being a Superior Court does not suffer from any such limitation also and it has much wider powers. 17. So far as the ....
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....ved that it has to be exercised with a great care and caution by balancing the valuable right to liberty of an individual and the interest of the society in general. 19. Mr. Vijay Aggarwal, the learned counsel, who is appearing for Asif Balwa (A-13), has also adopted the arguments of the previous learned senior counsel and also cited couple of orders passed by the Apex Court in the matter of bail. These are Utsav Bhasin Vs. State (NCT of Delhi) passed in SLP(Crl.) No. 524/2009 and Kamaljit Singh Vs. State of Punjab and Anr., (2005) 7 SCC 226. Since these orders are not giving the facts of the case and they are very short orders, I do not feel that the learned counsel can get any help by referring to the said two orders. 20. I have carefully gone through the submissions made by the learned senior counsel for the petitioners as well as the order of the Supreme Court in Sanjay Chandra's case (supra). 21. At the outset, the order of the Supreme Court has dealt with the previous judgments on the subject and reiterated the principles of law, which the Court has to bear in mind, while dealing with the application for grant of bail. One principle feature of this order, which i....
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....t the all co-accused persons in the bail applications which were under its consideration were charged so. In addition to this, while dealing with the facts of the case in the batch of applications of Sanjay Chandra's case (supra) it had taken the charges against all the co-accused as a whole and not individual charges, therefore, if that be the position, this Court ought not to deny the bail to the petitioners on account of the omission, though inadvertent, in the order of the Apex Court. I am of the view that when the Supreme Court has reproduced the facts of the case, given the magnitude of the offence, the severity of the punishment which it entails, it has taken into note of the fact of the accused persons in general being charged for an offence under Section 409 IPC or the conspiracy thereof which carry life imprisonment. If despite the aforesaid facts, the Supreme Court has released the co-accused persons Sanjay Chandra's case (Supra) on bail, the said benefit cannot be denied to the petitioners on the grounds of parity. Moreover, the offences of which the petitioners in general have been charged, carries a punishment of five years under Prevention of Corruption Act o....
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.... all courts within the territory of India. 24. Mr.Altaf Ahmed, the learned senior counsel has also cited number of other judgments to impress on this Court, the question that the omission to mention of Section 409 IPC or the absence of the word "life imprisonment" in the Supreme Court order cannot be interpreted in a manner which may be detrimental to the interest of the petitioners on account of Article 141 of the Constitution of India as the Supreme Court has dealt with the facts of the case as a whole and was cognizant of the fact that the charges against all the petitioners had crystallized. It was also aware that common charges with regard to the commission of offence were framed against all the accused persons, which entailed imposition of life imprisonment, yet it consider the case of the co-accused Sanjay Chandra's Case (supra) fit to grant bail. These judgments are Official Liquidator Vs. Dayanand & Ors. (2008) 10 SCC 1, State of Bihar Vs. Kalika Kuer @ Kalika Singh & Ors. (2003) 5 SCC 448, Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, Izharul Haq Abdul Hamid Shaikh & Anr. Vs. State of Gujarat (2009) 5 SCC 283, Dinbandhu Sharma Vs. State 87 (2000) DKT 149, Dire....
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....e grant of bail to him will not create any impediment in the holding of a free and fair trial and that he would be available at all times to submit to the custody to the Court as and when called upon to do so. Similarly, in a given case, the prosecuting agency may not raise this objection or make a positive statement as has been done in the present case that it has no objection to the grant of bail to the accused persons. 29. I feel that though such a concession granted by the prosecuting agency may be a very relevant and important factor to grant bail but I do not feel that the Court is bound to accept such a statement blindly. The Court is expected to exercise its own judgment and to see if there is any likelihood or chances of tampering with the evidence. This is because the Court has a constitutional duty to uphold the "law" and it is well possible in a given case there may be various extraneous considerations, which may have prompted the prosecuting agency to give such a concession, which need not be gone into detail herein in this case. No doubt, the petitioners are influential or moneyed persons having extensive clout political or otherwise but I have examined the list of....
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....maining co-accused persons need to be dealt with separately except that in the case of Mr.Karim Morani. He is admittedly a patient, who has undergone various surgical procedures and has precarious health conditions, though for the present that has not been a cause for concern but that is certainly a ground, which has also weighed with this Court in extending the benefit of grant of bail to him as has been a special ground of being woman in the case of Kanimozhi Karunanithi. 33. In the light of the aforesaid facts and circumstances, I allow the bail applications of all the five accused persons and they are directed to be released on bail on their furnishing a personal bond in the sum of Rs. 5 lakhs each with two sureties for the like amount to the satisfaction of the learned trial Court, subject to the following conditions: (a) The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts as may be necessary to the Court or to any other authority; (b) They shall remain present before the trial Court on all the dates fixed for hearing of the c....