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DELHI HIGH COURT
Y.K. Sabharwal, J.
Binoy Jacob - Petitioner
versus
Central Bureau of Investigation - Respondent
Cr. Misc (Main) 4 of 1993
Decided on 28.1.1993
Counsel for the parties:
For the Petitioner: M/s. Rajinder Singh, D.C. Mathur, J.K Das, Advs.
For the Respondent: Mr. S. Lal, Adv.
IMPORTANT POINT
When an offence is committed jointly by more than one persons and one of the accused person is arrested, but not the main accused, the court can ask the investigating agency in appropriate cases as to what is the reason for not arresting the main accused, In case no satisfactory answer is given, the court can take into consideration this factor, amount others while considering the bail application of the accused.
Headnote:Indian Penal Code, 1860 - Section 120 B Conspiracy - Prevention of Corruption Act, 1947 - Sections 5(2), 5(1)(d), 13(2) r/w - Prevention of Corruption Act, 1988 - Section 13(1)(d) - Illegal pecuniary advantages - One V.K. by corrupt or illegal means, abusing his official position as a public servant in conspiracy with his two sons and the petitioner obtained huge ill-gotten money in the form of commission from various multinations - Petitioner arrested
Other accused not arrested - Whether the petitioner is entitled to be released on bail? (Yes)
Held: There is no doubt that the investigating agency in its discretion has to decide as to which accused is to be arrested and at what stage. The court, can, however, ask the Investigating Agency in appropriate cases as to what is the reason for not arresting the main accused. In case no satisfactory answer is given, the court can take into consideration this factor amongst others, while considering the bail application of the co-accused. In the country governed by-rule of law the discretion of the investigating agency does not mean whim, fancy or wholly arbitrary exercise of discretion. The facts disclosed in the First Information Report show that the main accused is V. Krishnamurthy who is stated to have obtained huge pecuniary advantage acting in conspiracy with his two sons and. Binoy Jacob. V. Krishnamurthy and his son K. Chandra, according to prosecution, were interrogated only on 2nd December 1992 and at no time thereafter.
The question is not about arrest or non-arrest of Krishnamurthy or his sons but prima facie, one does get an impression that the C.B.I., a prime Investigating agency of the country, is treating Binoy Jacob differently. (para 8)
Further held: Binoy Jacob was arrested on 2nd December 1992. Admittedly, if the charge sheet is not filed within the outer limit provided by proviso (a) to Section 167 (2) of the Code of Criminal Procedure, the accused Binoy Jacob shall have to be released on bail as a matter of right. Counsel for C.B.I. very fairly stated that the C.B.I. is not likely to file charge sheet within the stipulated period of sixty days which is going to expire after about 2/3 days. (para 9)
Result: Order accordingly.
JUDGMENT
Y.K. Sabharwal, J.- Binoy Jacob, the petitioner, who seeks an order from this Court for being released on bail is one of the accused in First Information Report bearing No. RCA (A) 92ACU VI dated 28th November 1992, The other learned accused in the F.I.R. are V. Krishnamurthy and his two sons K. Chandra Sandy and K. Jayakar. The case of the prosecution in brief, is as under:
2. In the year 1982 V. Krishnamurthy while functioning as Vice-Chairman and Managing Director for Maruti Udyog Limited (MUL) joined hands with Binoy Jacob, Director of M/s. Apten Marketing and Management Services (P) Ltd. and K. Jayakadn order to earn, ill-gotten money in the form of commission from various multi-nationals in connection with the transactions held by these multi-nationals with the companies under the control and influence of V. Krishnamurthy in his capacity as a public servant In pursuance of the said object Binoy Jacob and K. Jayakar alongwith Prem Kumar set up a company on 6th July 1982 with the following shares:
1
Binoy Jacob
501 shares
2
K. Jayakar
401 shares
3
S. Prem Kumar
001 share
3. V. Krishnamurthy while functioning as public servant participated in the management of M/s. Apten Marketing and Management Services (P) Ltd. through his son Jayakar. V. Krishnamurthy became Chairman of M.U.L. on 21st March 1983 and continued to be its Chairman till 17th March 1985. Between 17th May 1985 and 1st April 1990 V. Krishnamurthy was part-time Chainnan of M.U.L. and full time Chairman of Steel Authority of India (SAIL). M/s. Sumitomo Corporation incorporated in Japan while having official business with MUL paid commission of about Rs. 6 lakhs to M/s. Apten Marketing and Management Services (P) Ltd. Huge commissions were also paid to M/s. Apten by various other multi-nationals with whom V, Krishnarnurthy had official dealings as public servant. M/s. Apten Marketing and Management Services (P) Ltd succeeded in obtaining commission through representation agreements with multi-national companies for their work in India on account of official position of V. Krishnamurthy as public servant.
4. Further the case of the prosecution is that when it became apparent that M/s. Apten Marketing and Management Services (P) Ltd. could receive huge commission as a result of influence exercised by V. Krishnamurthy, the eldest son of V. Krishnamurthy, namely, K. Chandra Sandy bought a shell company viz. Link Universe Company Limited on September 9, 1985 in Hongkong. It is learnt that V. Krishnamurthy has considerable involvement in the business of his son K. Chandra Sandy and Binoy Jacob. Since Binoy Jacob did not succeed in getting resident's permit in Hongkong despite his efforts, one David Barrett was made his assignee for M/s. Link Universe Company Limited, Hongkong, a 50:50 owned company between Binoy Jacob and K. Chandra. M/s. Link Universe Company collected over 10 millions US dollars from 1985 to 1990 and most of the money received by M/s. Link Universe Company by way of commission, which M/s. Apten would have otherwise received in India, was deposited in Union Bank of Switzerland Account No. 709475, which had in balance in dollars 56,76,517 .24 as on 27th May 1988. This company has two other numbered accounts also in the Switzerland viz. 675-701 and 706-350. Some portion of the money collected by way of commission was utilised .in securing further business through other public servants by corrupt and illegal means. On 27th October 1988 M/s. Link Universe Company received Yen 126 millions as "V.K. Profit" and on the next day US dollars 0.4 millions was transferred to M/s. International Engineering account and O.I millions US dollars to M/s. Ergodyne's accounts, the two companies in which the two sons of Y. Krishnamurthy were having shareholding interests. Thus, V. Krishnamurthy has, by corrupt or illegal means or by otherwise abusing his official position as a public seryant in conspiracy with Binoy Jacob, K. Chandra and Jayakai and others obtaine
