Suraj Mandalpetitioner v. Cbi (State).S

S.K Mahajan, J.— I have given in short the facts relevant for deciding this petition in my judgment delivered today while deciding the petitions of Mr. P.V Narasimha Rao and Capt. Satish Sharma for the grant of anticipatory bail, being Crl.M(M).2733/96 and Crl.M(M).2742/96 and I am not repeating the same in this order.

2. Petitioners have been accused of their having committed an offence punishable under Section 120-B read with Section 193 of the IPC and Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Petitioners are alleged to have accepted illegal gratification amounting to about rupees three crores in july, 1993 in consideration of their voting against the motion of confidence tabled by Mr. Ajay Mukhopadhayaya a CPI(M) Member of Parliament against the Government then headed by Mr. P.V Narasimha Rao. FIR in this case was registered in 1996 after a direction had been given by a Division Bench of this Court in a public interest litigation filed by one Mr. Ravinder Kumar. Petitioners were arrested on 6th September, 1996 and are in custody since then. Charge sheet in the case was filed on 30th October, 1996. Bail application of the petitioners were dismissed by the Special Judge on 8th November, 1996 and this is how the present petitions came to be filed in this Court by the petitioners for their being released on bail.

3. The contention of learned counsel for the petitioners is that the petitioners are innocent and they have been falsely implicated in the case. It is contended that the registration of FIR was highly belated and was politically motivated. In any case, according to the petitioners, though the petitioners were arrested on 6th September, 1996, the Central Bureau of Investigation, with a view to avoid the petitioners being released under Section 167(2) of the Code, has filed an incomplete charge sheet within the period of 60 days on 30th October, 1996; that even as per the charge sheet, the investigation was still continuing to ascertain the facts regarding the role of others who had not been sent for trial and whose names were mentioned in column No.2 of the charge sheet, and also all other unknown persons, and further report, according to the Central Bureau of Investigation, would be submitted after completion of further investigation.

4. It is contended by Mr. Dinesh Mathur, Senior Advocate, appearing on behalf of the petitioners, that as investigation, in so far as the petitioners are concerned, was over, there was no need of keeping them in custody. It is also the contention of Mr. Mathur that the petitioners are not public servants within the meaning of the Prevention of Corruption Act and as such no FIR could be registered against them and, in any case, even assuming that they were public servants, cognizance could not be taken against them without sanction under Section 19 of the Act. He has referred to the judgment of the Supreme Court reported as V. Ramaswamy v. State 1991 (3) SCC 655 and relies upon the minority opinion of J.S Verma, J. in the said judgment to contend that as an MP cannot be removed by any authority, no sanction under Section 19 of the Prevention of Corruption Act for their prosecution can be given and consequently the provisions of the Act would not be applicable in this case. He has also referred to the Lok Sabha and Rajya Sabha debates which were held when the Prevention of Corruption Bill was being discussed in the Parliament to contend that an MP is not covered by the Act.

5. This argument has been dealt with in detail by me in the judgment delivered today in Sh. P.V Narasimha Rao v. State (CBI), Crl.M(M).2733/96 and for the reasons given in the said judgment, I am prima facie of the opinion that Members of Parliament are public servants within the meaning of Prevention of Corruption Act, 1988 and can be prosecuted under the said Act without any sanction.

6. The petitioners are in custody since 6th September, 1996. The right of the police to keep a person involved in the commission of non- bailable offence in custody for purposes of interrogation cannot be disputed and at the initial stages keeping in view the facts and circumstances of a case, the Court may refuse to release a person on bail involved in the commission of a non-bailable offence, even if the offence is not punishable with death or imprisonment for life. However, at the time of consideration of the application for bail, the Court must always bear in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. At the stage of considering the application for the grant of bail, the Court is not required to go into the detailed examination of evidence and pre-judge the case and for that exhaustive exploitation of the merits of the case are not required in the order. The Court before granting bail in cases involving non-bailable offences, is to take into consideration matters such as the nature and seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and similar other considerations. Bail should normally not be withheld as a punishment if, after taking into consideration other factors, the accused is entitled to the grant of bail. Bail and not jail is the normal rule. The two paramount considerations, namely, likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring fair trial of a case in the course of justice. Due and proper weight should be bestowed on these two factors apart from others. There cannot be a set formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling the bail.

7. It is the contention of Mr. Dutt, learned counsel for the Central Bureau of Investigation, that the investigation in the case is still continuing to ascertain the names of unknown persons who had alleged to have visited the residence of Mr. Suraj Mandal to deliver him the amount alleged to have been given by way of illegal gratification and in case the petitioners are released on bail, there is an apprehension of their interfering with investigation and tampering with evidence. As held by the Supreme Court in Gurcharan Singh v. State, AIR 1978 SC 179, in non-bailable cases other than ones where the person has been guilty of an offence punishable with death or imprisonment for life, the Court will exercise its discretion in favour of granting bail subject to sub-section 3 of Section 437 of the Code, if it deems necessary to deal under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to the person who is not accused of an offence punishable with death or imprisonment for life. The over-riding considerations in granting bail, as already mentioned above, are the nature and gravity of the circumstances in which the offence was committed, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with grim prospects of possible conviction in the case, of tampering with witnesses, the history of the case as well as of its investigation and other relevant grounds. A person who has committed a criminal misconduct under Section 13 of the Prevention of Corruption Act, is liable to be punished with imprisonment for a term which shall not be less than one year but which may extend upto seven years.

8. The petitioners have been former Members of Parliament and one of the petitioners, namely, Mr. Shibhu Soren still continues to be an MP. They are tribal leaders and are espousing the cause of the people living in the Jharkhand region in the State of Bihar and nearby areas. I, therefore, do not see any reason as to why any of the petitioners should flee from justice. They have already been thoroughly interrogated and are in custody for the last about four months. Investigating agency has been given sufficient time to interrogate the petitioners and if they are released on bail, the investigating agency can still be permitted to interrogate them. Except that the names of some unknown persons are still to be investigated by the investigating agency, I do not see any reason as to why the petitioners should languish in jail, more so when the other co-accused had not been arrested by the Central Bureau of Investigation immediately on the registration of the FIR.

9. For the foregoing reasons and without in any manner commenting upon the merits of the case, I direct each of the above petitioners in both the cases to be admitted to bail on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the trial Court, subject to the following conditions :—

1. He shall surrender his passport, if not already surrendered, to the Central Bureau of Investigation within one week;

2. He shall not go abroad without prior permission of the Court;

3. He shall not operate any of the bank accounts in which money allegedly paid to him as illegal gratification was deposited, without permission of the Court; and

4. He shall join investigation as and when required by the investigating agency.

10. With these observations, the petitions stands disposed of.