Anup Kumar Srivastava (Dr.), Hemant Gandhi, Lallan Ojha vs CBI

M.L. Mehta, J.—These three bail applications u/s 439, Cr.P.C. read with Section 482, Cr.P.C. have been preferred by petitioners Dr.

Anup Kumar Srivastava, Lallan Ojha and Hemant Gandhi for grant of bail in respect of criminal case registered against them under Sections 7, 8,

10, 12, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act read with Section 120B, IPC in case number RC-AC 120/2A. All

these bail applications are being disposed of by this common order as they are interconnected and the stand of CBI in all these applications is

common. Briefly stating the facts are that Hemant Gandhi was acting as a middleman for accused Dr. A.K. Srivastava and Lallan Ojha, who were

respectively posted as Commissioner and Superintendent of Central Excise at the relevant time. The allegations are that they were involved in

obtaining illegal gratification by corrupt and illegal means from the businessmen. Further the allegations are that they had conspired to conduct an

unauthorized raid at the business premises of Dalip Aggarwal and Anand Aggarwal. It was alleged that in furtherance of the conspiracy accused

Hemant Gandhi had shown the premises of Aggarwals to Lallan Ojha on the evening of 27.12.2011 and it was decided to conduct a raid on the

morning of 28.12.2011. In the process a team of officials of Central Excise led by accused Lallan Ojha conducted surprise raid at the godown

premises of Dalip Aggarwal and Anand Aggarwal on 28.12.2011 under the overall supervision and control of accused Srivastava. Then they

negotiated with Aggarwals for an illegal gratification for not taking any action and made an initial demand of Rs. 2 crore which was ultimately

finalized at Rs. 60 lac. A sum of Rs. 40 lac was received in cash and a cheque of Rs. 20 lac was issued by Aggarwals as security for the remaining

amount of bribe. Out of the said amount, a sum of Rs. 3 lac was paid to Ojha as his share and the said amount was given on 2.1.2012 to his driver

who kept the same in the dickey of the car parked at his office at ITO. Accused Lallan Ojha was apprehended and got recovered Rs. 2,96,500/-

from the dickey of his car. His driver confirmed that this money was delivered to him by an unknown person at the instance of Ojha.

Investigation revealed that various phone calls were made by these accused persons to each other and they were in constant touch with each

other after they held a meeting on 27.12.2011. During investigation, statements of drivers of Lallan Ojha and that of Hemant Gandhi were

recorded u/s 164, Cr.P.C. and they both confirmed that the packet containing Rs. 3 lac belonged to accused Lallan Ojha and was given by the

driver of accused Hemant Gandhi to the driver of Ojha. The said amount was found to be Rs. 2,96,500/-. It is stated that the difference in the

amount is due to shortage of currency notes in the packet. During investigation, statement of Superintendent, Central Excise Mr. S.K. Singh, who

also formed part of the raiding team, was recorded u/s 164, Cr.P.C. He also stated the raid to be unauthorized and conducted by Lallan Ojha at

the instance of A.K. Srivastava. He also stated having received a sum of Rs. 20 lac from Anand Aggarwal on the directions of Lalaj Ojha and later

on having given the same to Hemant Gandhi for delivering the same to Srivastava. Statement of one Mahender Kapur was also recorded u/s 164,

Cr.P.C. He admitted business relations with Hemant Gandhi and that he had lent Rs. 9 lac to Hemant Gandhi as temporary loan. He stated that a

sum of Rs. 7.50 lac was returned by Hemant Gandhi on 30.12.2011. He had got recovered Rs. 6 lac from his friend Subash Sapra to whom he

had given the same out of the said amount of Rs. 7.50 lac.

Mr. Vikas Pahwa, learned Senior Counsel appearing for petitioner/accused Lajan Ojha at the outset submits that there was no case made out

against Lallan Ojha inasmuch as none of the ingredients of Section 7 and Section 13(i)(d) were attracted. In this regard, he relied upon A. Subair

Vs. State of Kerala, and Subash Parbat Sonvane Vs. State of Gujarat, . He submits that there were no allegations of initial demand of bribe or at

the time of trap or acceptance of money by the petitioner Lallan Ojha. There was also no motive of the petitioner Lallan Ojha to help a private

party. He also submits that there is no document of raid to show that the money recovered was of a private party. He further submits that the

goods found in the godown of Aggarwals were not amenable to excuse duty. He also submits that the telephone calls between accused persons, if

any, were not authentic and no reliance could be placed upon them and such taped conversation could not be used for the purpose of conviction.

In this regard he relied upon Mahabir Prasad Verma Vs. Dr. Surinder Kaur, .

Mr. Pradeep Jain, learned Counsel appearing for the petitioner A.K. Srivastava adopts all the arguments of Mr. Pahwa and in addition submits

that the petitioner A.K. Srivastava being a Joint Secretary, Government of India, his arrest and prosecution was barred u/s 6A(1) of Delhi Police

Establishment Act. In this regard, he relies upon Dr. R.R. Kishore Vs. C.B.I., . He also submits that the petitioner Srivastava is suffering from heart

ailments and has undergone treatment and was not medically fit. He also seeks his bail on medical grounds and relies upon Sharad Kumar Vs.

CBI, .

Dr. Ashutosh, learned Counsel appearing for petitioner/accused Hemant Gandhi also adopts all the arguments of Mr. Pahwa and contends that

the petitioner Hemant Gandhi is entitled to grant of bail on the ground of parity with co-accused Dalip Aggarwal and Anand Aggarwal who have

already been enlarged on bail.

Per contra, Mr. P.K. Sharma, learned Standing Counsel for CBI submits that pursuant to the conspiracy hatched by three accused persons, an

illegal raid was conducted by Ojha under the control and supervision of Dr. A.K. Srivastava. After the raid, a bargain was struck for Rs. 60 lac by

accused/petitioner Hemant Gandhi and a sum of Rs. 40 lac in cash and cheque of Rs. 20 lac was also received by them from Aggarwals through

Hemant Gandhi. He also submits that 96 telephone calls were made by the accused persons to each other which show not only the conspiracy and

active involvement of all of them, but their modus operandi of receiving illegal gratification. He submits that from the statements of two drivers of

petitioners Ojha and Gandhi and that of Mr. S.K. Singh, Superintendent, the factum of receipt of bribe money is also established. With regard to

pleas raised by petitioner Dr. A.K. Srivastava, he submits that Section 6A(1) was not applicable since it was a trap case and thus within the ambit

of Sub-section (2) thereof. He submits that since the petitioner Srivastava got admitted himself in the hospital immediately after arrest of other two

accused persons from the spot, his arrest at a later date would be nothing but as a consequence of the trap. He submits that the medical

examination of A.K. Srivastava by the medical Board of AIIMS has also reported his condition to be stable. With regard to petitioner A.K.

Srivastava, he submits that he is also involved in another case of housing scam and had been charge-sheeted in that case. With regard to the plea

of petitioner Hemant Gandhi of parity, he submits that Aggarwals are businessmen and they had become victims of circumstances and

compulsions. Their offences were only that of abatement, whereas the offences committed by Hemant Gandhi were of active conspiracy of

accepting bribe from Aggarwals for himself and co-accused persons. He also received cash amounts and also the cheque and was the beneficiary

of the bribe money. He also submits that Gandhi is involved in number of cases by CBI and in one of those cases, he has been convicted and he

has been facing trial in other cases also. He submits that this was a case of trap and initial demand of bribe was not the requirement The accused

persons having agreed to accept the bribe money after negotiations was enough to bring their case within Section 7 and Section 13(1)(d) of PC

Act in addition to other Sections read with Section 120B, IPC. With regard to the plea of telephonic conversation, he submits that though this tape

recorded conversations may not be the basis of conviction, but in view of the existence of other sufficient evidence against the petitioners, the taped

conversation could be relied upon as corroborative evidence.

I have heard learned Counsel for the petitioners and also learned Standing Counsel for CBI and perused the record.

The essential ingredients of Section 7 are that (i) the person who accepts gratification should be a public servant, (ii) he should have accepted

the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or

disservice to any person.

Insofar as Section 13(1)(d) of the Act is concerned, the essential ingredients are (i) he should be a public servant, (ii) he should have used

corrupt or illegal means or otherwise abused his position as such public servant, and (iii) he should have obtained a valuable things or pecuniary

advantage for himself or for any other person.

In Section 13(1)(d), the word used is ''obtained''. The Apex Court in the case of C.K. Damodaran Nair Vs. Govt of India, , had the occasion

to consider the word ''obtained'' used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12

thus:

The position will, however, be different so far as an offence u/s 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence

prosecution has to prove that the accused ""obtained'' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing

his position as a public servant and that too without the aid of the statutory presumption u/s 4(1) of the Act as it is available only in respect of

offences u/s 5(1)(a) and (b)--and not u/s 5(1)(c), (d) or (e) of the Act. ''Obtain'' means to secure or gain (something) as the result of request or

effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request

from him will be a primary requisite for an offence u/s 5(1) (d) of the Act unlike an offence u/s 161, IPC, which, as noticed above, can be,

established by proof of either ''acceptance''--or ''obtainment''.

The core question that needs to be seen is as to whether prima facie there is sufficient legal evidence on record to bring home the petitioners

within the ambit of Sections 7 and 13(1)(d) read with Section 13(2) of the Act.

From the facts as noted above, it would be seen that there was a clear well-designed and planed conspiracy to conduct illegal raid on the

business premises of Aggarwals. This conspiracy was hatched by all the accused persons/petitioners. There is prima facie evidence on record in

the shape of statements of Mr. S.K. Singh that the raid was illegal and unauthorized. Though the transcript of taped conversation cannot be used as

a substantive piece of evidence, but having seen the transcript of the conversation that took place between the accused persons/petitioners before

and after the raid, it would be prima facie seen that it was all planned to extort money from Aggarwals under the fear of raid. Further it is also

gathered from the information provided by Rekha Rani, PS to Srivastava that Hemant Gandhi was frequent visitor to the office of Srivastava. In

her statement she stated this fact and also that she had noted down the mobile number of Hemant Gandhi on several occasions as part of her

duties. Not only that the other senior officers namely Pradeep Kumar and B. Mohan, who were working under Srivastava, had identified the voice

of Srivastava in the recorded conversation, but the report of CFSL also confirmed the same.

The initiation of conduct of raid vests in Srivastava and Lallan Ojha. Though the demand was made by Lallan Ojha through petitioner Hemant

Gandhi, but the entire raid was under the control and supervision of Srivastava. It was after raid that a payment of Rs. 2 crore was made as a

bribe, but after negotiation with Lallan Ojha and Srivastava through Hemant Gandhi, the amount was settled to Rs. 60 lac. Not only that, there

were element of ''acceptance'' by the accused persons. Recovery of Rs. 2,96,500/- from the driver of Ojha and receipt of Rs. 20 lac by Hemant

Gandhi through S.K. Singh for Srivastava prima facie establishes the acceptance of bribe money by them in pursuant to the execution of the

conspiracy and thus prima facie there are ingredients of Section 7 as also Section 13(1)(d) qua the petitioners Srivastava and Ojha. There is no

reason to disbelieve the statement of driver of petitioner Hemant Gandhi who had given the money to driver of Lallan Ojha at his instructions.

There is also no reason to disbelieve the statement of Mr. S.K. Singh, recorded u/s 164 Cr.P.C. who was a member of the raiding party and

witnessed the entire incident. He was also paid Rs. 20 lac by Aggarwals at the instance of Ojha and had later at his instructions delivered the said

money to Hemant Gandhi for Srivastava. Similarly, there was also no reason to disbelieve the statement of Mahender Kapur u/s 164, Cr.P.C. who

was a friend of Hemant Gandhi and had received Rs. 7.5 lac from him as towards repayment of his loan and later on got recovered Rs. 6 lac of the

said amount from a person to whom he had given the same.

With regard to petitioner A.K. Srivastava, a plea was also raised by learned Counsel Mr. Jain that his prosecution was barred u/s 6A(1) of

Delhi Police Establishment Act in the absence of approval from the Central Government. In this regard, reliance was placed on the case of R.R.

Kishore (supra) Section 6A of Delhi Special Police Establishment Act reads as under:

[6A. Approval of Central Government to conduct inquiry or investigation.--(1) The Delhi Special Police Establishment shall not conduct any

inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with

the previous approval of the Central Government where such allegation relates to--

(a) the employees of the Central Government of the level of Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies,

societies and local authorities owned or controlled by that Government.

(2) Notwithstanding anything contained in Sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot

on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in Clause (c) of the Explanation to

Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).

In the case of R.R. Kishore (supra), the complainant sent a complaint dated 16.12.2004 to CBI alleging therein that he had met the

petitioner/accused on 14.12.2004 and the later informed him that four members of the appropriate authority have become corrupt and were

demanding Rs. 20,000/- each and, therefore, petitioner/accused demanded a sum of Rs. 80,000/- from him in two instalments of Rs. 40,000/-

each in two/three days. It was alleged that since the complainant did not want to pay the bribe, he made a complaint against him to CBI on

16.12.2004 at 2 p.m. The FIR was registered u/s 7 and the matter was entrusted to investigating officer. It was in this factual matrix that it was

held that initiation and conduct of investigation on 16.12.2004 itself was in contravention of provisions of Section 6A(1). It was held that Section

6A(2) was triggered only in respect to cases involving arrest of a person on the spot on the charge of or accepting to attempting to accept any

gratification other than legal remuneration referred to in clause (c) of Section 7 of the Act. Section 6A(2) would be applicable in cases involving

arrest of a person on the spot on the charge of accepting or attempting to accept the bribe. In the factual matrix of the said case as there was no

question of arrest of the petitioner on the spot, Section 6A(2) was held to be not applicable.

It would be seen that the facts in the instant case are entirely different and distinguishable from the case of R.R. Kishore (supra). The two

accused persons namely Lallan Ojha and Hemant Gandhi were arrested on the spot, whereas accused Srivastava immediately got himself admitted

in the hospital and thus could not be arrested. When his condition became normal, he was arrested. The arrest of Srivastava would be nothing but

extension of trap arrest. Prima facie Section 6A(2) was attracted and this being a non obstante section, provisions of Sub-section (1) mandating

approval of the Central Government were not applicable. The objectives of Section 6A(1) was to provide protection to the officers of the rank of

Joint Secretary and above who is or has been a decision maker level officer. However, where the accusation of corruption was based on direct

evidence and it did not require for inference to be drawn depending upon the decision making process, there was no rationale to classify them

differently and giving protection. In other words, if the accusation of bribery was supported by direct evidence of acceptance of illegal gratification

including trap cases, it is obvious that no other factor is relevant and the level and status of officer is irrelevant. It is for this reason that the cases of

bribery including the trap cases are outside the scope and ambit of Section 6A(1).

The Supreme Court in the case of Vineet Narain and Others Vs. Union of India (UOI) and Another, had the occasion to deal with execution

order creating the differentiation in officers. The Supreme Court had observed that the cases of bribery including the trap cases and

disproportionate assets cases are based on direct evidence and no factor pertaining to the expertise of decision maker was involved and, therefore,

the said order did not include within its ambit the cases of disproportionate assets and also trap cases. With regard to the plea of petitioner

Srivastava of medical ground, it was submitted by learned Standing Counsel for CBI that this petitioner was getting required medical treatment in

Jail Hospital and as per medical report of AIIMS, his condition is normal. This fact could not be controvered by learned senior Counsel for the

petitioner. Be that as it may, there is no complaint of lack of proper medical treatment of petitioner A.K. Srivastava in jail hospital. There is also no

reason to doubt that all kinds of medical treatment that may be required by petitioner A.K. Srivastava will be provided to him by jail authorities, as

per rules. In the case of Sharad Kumar (supra) one of the grounds for grant of bail of accused Karim Morani, was on the facts of his physical

condition. So far as invocation of plea of medical ground is concerned, it was all to depend upon the facts and circumstances of each case and one

case cannot be a precedent for the other cases.

With regard to the plea of petitioner Hemant Gandhi of parity with Aggarwals, it may be noted that by any reason, role of both of them, could

not be equated or taken to be similar in the commission of offence. The raid on the premises of Aggarwals was unauthorized and illegal, which they

did not know and they were victims of compulsion and circumstances. Their only fault is that they had not informed or reported about the illegal

demand of petitioners to the authorities and for which they are prosecuted u/s 12 of PC Act The plea that the goods found in the business premises

of Aggarwals were not amenable to excise duty is extraneous for consideration of bail applications and that rather goes against the petitioners in

having raided the premises and taken illegal gratification despite knowing that the goods were not amenable to excise duty.

The petitioners A.K. Srivastava and Lallan Ojha are senior officers of the Central Excise Department. Most of the witnesses who have been

cited by the prosecution are officials of their department and some of the officials cited as witnesses are their juniors and subordinates. It is every

likelihood that in case they are released on bail, they would be able to influence the witnesses. This is presumably because of this apprehension that

the prosecution has chosen to get the statements of two drivers and one Superintendent recorded u/s 164, Cr.P.C. before the Magistrate. The

apprehension of CBI in this regard seems to be well founded in the given facts and position of these two petitioners.

The pleas that the petitioners are in custody for about three months now and the charge-sheet has been filed are also no ground to admit them

on bail. This Court in Mukesh Jain Vs. CBI held as under:

It is true that the petitioner has been in custody for more than eight months and the chargesheet has already been filed, but considering the huge

amount of public money, being retained by him, his having been in custody for eight months by itself would, in the facts and circumstances of this

case, not entitle him to grant of bail at this stage. The economic offences having deep rooted conspiracies and involving huge loss of public funds

whether of nationalized banks or of the State and its instrumentalities need to be viewed seriously and considered as grave offences affecting the

economy of the country as a whole and thereby posing serious threat to the financial health of our country. Therefore, the persons involved in such

offences, particularly those who continue to reap the benefit of the crime committed by them, do not deserve any indulgence and any sympathy to

them would not only be entirely misplaced but also against the larger interest of the society.

Having regard to the entire factual matrix of the case and the legal preposition of law as noted above, I do not find it a fit case to admit the

petitioners on bail at this stage. All the three bail applications are hereby dismissed.