Anil Wahal vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

On receipt of notice issued under Section 41-A of Code of Criminal Procedure, the petitioner joined the investigation. However, alleging petitioner's non-cooperation, the investigating agency in its status report seeks his custodial interrogation, whereas petitioner prays for confirmation of the interim bail granted to him vide order dated 16.9.2020.

FIR No. 1/2019, dated 3.8.2019 was registered against M/s Brakel Corporation NV under Section 420 of Indian Penal Code at Police Station, State Vigilance and Anti Corruption Bureau, Shimla. The allegations in the FIR pertain to allotment and cancellation of Jangi-Thopan-Powari 960 MW Hydro Electric Power Project in favour of M/s Brakel Corporation NV. It is submitted in the status report that:-

2(i) On 1.12.2006, two hydro electric power projects i.e. Jangi-Thopan (480 MW) and Thopan-Powari (480 MW) were alloted to M/s Brakel Corporation NV as per terms of the bid.

2(ii) On 10.1.2007, the company was directed to deposit `173.42 crore being 50% of total upfront premium amount offered by it for the two projects and to sign the Pre-Implementation Agreement.

2(iii) On 19.2.2007, the company was allowed to develop the available Hydel Power Potential through one single project i.e. Jangi-Thopan- Powari (960 MW) instead of two projects i.e. Jangi-Thopan (480 MW) and Thopan-Powari (480 MW).

2(iv) On 7.1.2008, a show cause notice was issued to the company as to why the allotment of the project should not be cancelled for non-deposit of upfront premium amount required in terms of the allotment.

2(v) In response to the show cause notice, the Company on 29.1.2008 deposited a pay order for an amount of `173.42 crore payable to Principal Secretary (Home) to the Government of Himachal Pradesh and also submitted its reply to the how cause notice. The status report further submits that the upfront premium was deposited from the account of one M/s Brakel Kinnaur Power Private Limited and not by the allottee company. Neither the HPSEB nor the Government of Himachal Pradesh was aware of existence of Brakel Kinnaur Power Private Limited. The allottee Company had also not informed the Government of Himachal Pradesh of any such entity created by it in this name. HPSEB was also not aware of setting up of any subsidiary company or a Special Purpose Vehicle by the allottee company in the name of Brakel Kinnaur Power Private Limited or its promoters.

2(vi) On 27.3.2008 the Principal Secretary (Home & Vigilance) requested SV & ACB to conduct an enquiry into the allegations levelled in the BJP chargesheet and to furnish the enquiry report to the Government of Himachal Pradesh for taking further action in the matter. Accordingly the enquiry was conducted. A per the status report the gist of the enquiry was that:- M/s Brakel Corporation NV had deliberately misrepresented the facts and submitted false documents alongwith its bid to HPSEB and Government of Himachal Pradesh inasmuch as false details about its financial and technical strength were given; False information about 30% equity from SNC-Lavalin and other members of consortium was furnished when there was neither any such authorization or assurance from them; The payment of upfront premium was delayed on one pretext or another; Special Purpose Vehicle in the name and style of Brakel Kinnaur Power Private Limited was formed unauthorizedly. The enquiry report was forwarded on 17.6.2008 to the Principal Secretary (Home and Vigilance) for grant of approval to register a regular case under Section 420 IPC.

2(vii) It is on the basis of this enquiry report forwarded to him on 17.6.2008 that the Principal Secretary (Home and Vigilance) on 20.7.2019 conveyed approval of the Competent Authority to register FIR against M/s Brakel Corporation NV. Accordingly, the instant FIR No. 1/2019 under Section 420 IPC was registered against M/s Brakel Corporation NV on 3.8.2019 at Police Station, SV &ACB, Shimla.

Investigation of the case thereafter was carried out and according to the status report, during investigation it was revealed that;-

3(i) Date of incorporation of M/s Brakel Corporation NV was shown as 13.2.2005 whereas in the Article of Association submitted with the bid document, the date is "thirteen day of February, two thousand and six".

3(ii) As per the information uploaded by Curacao Commercial Register, Netherlands Antillis on its website, the date of incorporation of the Brakel Corporation I N.V. is February 13, 2006. Its registration has been discontinued as of December 11, 2013 and the legal entity is dissolved as of March 3, 2020.

3(iii) The CWP No. 2748 of 2008, titled Reliance Infrastructure vs. State of H.P. and others, pertaining to allotment of Hydro Electric Project in question was decided on 7.10.2009, wherein it was held as under:-

"in view of the misrepresentation made by Brakel the allotment of the two projects Jangi-Thopan and Thopan Powari of 480 MW each, which were later combined into one project was illegal and is bound to be cancelled. During the course of investigation by Govt., it was found that in fact the company in question was in fact incorporated on 13.2.2006. This date is very important, since, the bid document were purchased on 13th Dec. 2005. If the Company had not been incorporated in the year 2005 how could it purchase the bid document. Faced with this situation, Brakel Corporation took the plea that by mistake it had attached the Registration certificate of another company which was infact Registered in Curacao on 14th May 1986, having paid up capital of 6000 US$. This is obviously a false explanation. We have perused the original record of the State and we find that when the certificate of Brakel Corporation was filed with the bid the Registration Number on the certificate is shown as 98785 and the date of incorporation is shown as February 13, 2005. On perusal of the documents we find that while filing Registration Certificate of the Company registered at Sr. No. 98785, the letter "I" has been erased. This erasure takes place at least two places. Therefore, it can't be said to be something which is not deliberate. Similarly the letter "6" in the year 2006 has been altered and made to appear to read as "2005". This has been done at three places, therefore, it is obvious a deliberate alteration. Brakel Corporation NV was incorporated after the purchase of bid documents. By erasing the letter "I" and altering the figure "6" an impression was given to the State that the Company stood incorporated on February 13, 2005 and the name of the Corporation is Brakel Corporation NV whereas in fact Certificate of Registration No. 98785 relates to Brakel Corporation INV which was incorporated on 13th February, 2006 after the bid document was purchased. It is more that obvious that the second company Brakel Corporation INV was incorporated after the purchase of the bid document. But with a view to mislead the State the objects of this Company were sent with the bid though admittedly the lead member of the consortium of BRAKEL CORPORATION NV and not BRKEL CORPORATION INV. On behalf of Brakel, it is argued that this was an innocent mistake and nothing much turns on it. We are not in agreement with the same. As per the object of the Company, Brakel Corporation NV had no right to bid for a Hydro Electric Project. Therefore, the promoters of the said company set up another company with virtual identical name and only added letter "I" in front of NV. They then made alterations and erasures in the documents supplied to the State which would suggest that the objects were of Brakel NV and not Brakel INV. This in our considered opinion was reprehensible act on behalf of Brakel which amounted to acting fraudulently. The paid up capital of Brakel INV is $ 1 only. All this clearly suggest that the second company was incorporated only with a view to hoodwink the state."

Status report further records that during investigation no company was found registered by the name of M/s Brakel Corporation NV on the website of Curacao Commercial Register. However, there was a company by the name of Brakel Corporation N.V registered on 14.5.1986 at registration No. 44482, whereas in CWP No. 2748 of 2008, the petitioner had claimed that he had submitted wrong registration certificate and Brakel Corporation NV was registered on 14.5.1986.

3(iv) Status report further mentions that joint venture agreement submitted by the allottee company did not bear the signatures of all the consortium members and contrary to conditions of NIT, entire 100% equity was to be paid by other members of consortium and nothing by the lead developer i.e. M/s Brakel Corporation NV. Also many consortium members had claimed having not given any authorization to Brakel Corporation NV even for their equity participation.

As per the status report, the project in question was finally allotted to M/S Satluj Jal Vidyut Nigam Limited in 2018.

Status report acknowledges the participation of the petitioner during investigations on 9th, 10th, 26th and 27th October, 2020 as directed by the investigation agency. However, it seeks custodial interrogation of the petitioner on the grounds that:-petitioner did not produce the original certificate of incorporation dated 13.2.2005 on the basis of which M/s Brakel Corporation NV succeeded in obtaining the tender documents and letter of allotment of the project; It is also stated that petitioner did not produce either the photocopy or the original certificate of incorporation of M/s Brakel Corporation NV dated 14.5.1986, which was produced in CWP No. 2748 of 2008; It is also asserted that the petitioner during investigation did not disclose about his contact and liaison with other suspects/Directors of M/s Brakel Corporation NV and also did not disclose the whereabouts of co-accused or their current contact details. In the supplementary status report one more reason given for seeking custodial interrogation of the petitioner is that he did not explain as to why date of 13.2.2006 has been erased to make it 13.2.2005 and why the word "I" has been erased from word I N.V. in the Incorporation Certificate of M/s Brakel Corporation N.V.

5(i) Hon'ble Apex Court in (2014) 8 Supreme Court Cases 273, titled Arnesh Kumar vs. State of Bihar and another, while interpreting provision of Section 41 and 41-A of Cr.P.C. held that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. The relevant extracts from the judgment are reproduced hereinafter:

"7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.3 In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC."

Regarding Section 41-A Cr.P.C. following was observed in paragraph-9 of the judgment supra:-

"9. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), which is relevant in the context reads as follows:

"41A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."

The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid."

5(ii) In the instant case, the FIR was registered on 3.8.2019 against M/s Brakel Corporation NV under Section 420 IPC. The maximum punishment prescribed under Section 420 IPC is seven years. The allegations levelled in the FIR inter-alia pertain to fraudulent/forged/illegal/false documents submitted during allotment of hydro electric power project in question, during the year 2006. The allegations primarily pertain to documents. It is not in dispute that pursuant to the notice issued to him under Section 41-A Cr.P.C., the petitioner has joined the investigation on different dates. The mere fact that some particular document desired by the investigating agency has not been produced by the petitioner cannot be a ground to seek his custodial interrogation. Similarly, in the facts and circumstances of the case, the non disclosure of the whereabouts of a co-accused by the petitioner cannot be a ground to confine him to prison. Learned Additional Advocate General at this stage submitted that in case the Court is inclined to confirm the interim bail granted in favour of the petitioner, then the same be made subject to strict conditions and petitioner be directed to continue to join and cooperate the investigation as and when directed by the investigating agency. In light of above observations, the interim bail granted to the petitioner vide order dated 16.9.2020 is made absolute subject to the following conditions:

(i) The petitioner shall continue to join the investigation of the case as and when called for by the Investigating Officer in accordance with law and shall cooperate with the Investigating Agency;

(ii) The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever;

(iii) The petitioner shall not contact the complainant, threaten or browbeat him/her or to use any pressure tactics in any manner whatsoever;

(iv) The petitioner shall not leave India without informing the investigation officer;

(v) In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law;

(vi) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(vii) The petitioner shall inform the Station House Officer of the concerned Police Station about their place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish furnish details of their Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.

With the aforesaid observations, the present petition is disposed of, so also the pending miscellaneous applications, if any.

Copy of this judgment duly authenticated by the Secretary be supplied to learned counsel for the parties, if so requested.