Back
1993 Supreme(Del) 58
High Court Of Delhi
BINOY JACOB - Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION - Respondent
Criminal Miscellaneous (Main) 4 of 1993
Decided On : 01/28/1993
D.C.MATHUR, J.K.DAS, Rajinder Singh, S.Lal,
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.
( 1 ) BINOY Jacob, the petitioner, who seeks anorder from this Court for being released on bail is one of the accused in Firstinformation Report bearing No. RCA (A) 92-ACU VI dated 28/11/1992. The other named accused in the F. I. R. are V. Krishnamurthy and histwo sons K. Chandra Sandy and K. Jayakar. The case of the prosecution inbrief, is as under :
( 2 ) IN the year 1982 V. Krishnamurthy while functioning as Vice-Chairman and Managing Director for Maruti Udyog Limited (MUL) joinedhands with Binoy Jacob, Director of M/s. Apten Marketing and Managementservices (P) Ltd. and K. Jayakar in order to earn ill-gotten money in theform 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. Inpursuance of the said object Binoy Jacob and K. Jayakar alongwith Premkumar set up a company on 6/07/1982 with the following shares :
( 3 ) V. Krishnamurthy while functioning as public servant participatedin the management of M/s. Apten Marketing and Management Service (P)Ltd. through his son Jayakar. V. Krishnamurthy became Chairman ofm. U. L. on 21st March 1983 and. continued to be its Chairman till 1 7/03/1985. Between 17/05/1985 and 1/04/1990 V. Krishnamurthywas part-time Chairman of M. U. L. and full time Chairman of Steel Authorityof India (SAIL ). M/s. Sumitomo Corporation incorporated in Japan whilehaving official business with MUL paid commission of about Rs. 6 lakhs tom/s. Apten Marketing and Management Services (P) Ltd. Huge commissionswere also paid to M/s. Apten by various other multi-nationals with whomv. Krishnamurthy had official dealings as public servant. M/s. Apten Marketing and Management Services (P) Ltd. succeeded in obtaining commissionthrough representation agreements with multi-national companies for theirwork in India on account of official position of V. Krishnamurthy as publicservant.
( 4 ) FURTHER the case of the prosecution is that when it becameapparent 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. Chandrasandy bought a shell company viz. Link Universe Company Limited on 9/09/1985 in Hongkong It is learnt that V. Krishnamurthyhas considerable involvement in the business of his son K. Chandrasandy and Binoy Jacob. Since Binoy Jacob did not succeed in gettingresident s permit in Hongkong despite his efforts, one David Barrettwas made his assignee for M/s. Link Universe Company Limited, Hongkong. a 50 : 50 owned company between Binoy Jacob and K. Chandra. M/s. Linkuniverse Company collected over 10 millions US dollars from 1985 to 1990and most of the money received by M/s. Link Universe Company by way ofcommission, which M/s. Apten would have otherwise received in India, wasdeposited in Union Bank of Switzerland Account No. 709475, which had inbalance US dollars 56. 76,517. 24 as on 27/05/1988. This company hastwo other numbered accounts also in the Switzerland viz. 675-701 and706-350. Some portion of the money collected by way of commission wasutilised in securing further business through other public servants by corruptand illegal means. On 27/10/1988 M/s. Link Universe Companyreceived Yen 126 millions as "v. K. Profit" and on the next day US dollars0. 4 millions was transferred to M/s. International Engineering account ando. I millions US dollars to M/s. Ergodyne s accounts, the two companies inwhich the two sons of V. Krishnamurthy were having shareholding interests. Thus, V. Krishnamurthy has, by corrupt or illegal means or by otherwiseabusing his official position as a public servant, in conspiracy with Binoyjacob. K. Chandra and Jayakar and others obtained huge pecuniary advantages for themselves and for others and these facts and circumstances constitute offences punishable under Section 120
