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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Dr. Ajay Kumar Gupta - Petitioner
Versus
State of Himachal Pradesh - Respondent
Criminal Misc. Petition (Main) No.2382 of 2022
Decided On : 09-12-2022
Code of Criminal Procedure, 1973 - Section 438, 439 - Prevention of Corruption (Amendment) Act, 1918 - Sections 7 & 8 - Constitution of India, 1950 - Article 21 - Anticipatory Bail - Misconduct of Public Servant - Petitioner has approached this Court seeking anticipatory bail – Even in absence of necessity of custodial interrogation also, an accused may not be entitled for anticipatory bail in all eventualities - Para 29.
Finding of the Court:
Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases - Though bail is rule and jail is exception - However, at same time, it is also true that even in absence of necessity of custodial interrogation also, an accused may not be entitled for anticipatory bail in all eventualities - Based on other relevant factors, parameters and principles enumerated and propounded by Courts in various pronouncements, some of which have also been referred by learned counsel for CBI, anticipatory bail may be denied to an accused - Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C - But taking into consideration nature and gravity of offence, initial stage of investigation, and factors and parameters to be considered at time of adjudicating an application for anticipatory bail, as propounded by Courts, including Supreme Court, balancing personal interest vis-à-vis public interest, Court is of opinion that no case for grant of anticipatory bail is made out.
Result: Petition dismissed.
JUDGMENT :
Vivek Singh Thakur, J.
Petitioner has approached this Court, invoking provisions of Section 438 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), seeking anticipatory bail in case FIR No.4 of 2022, dated 22.9.2022, registered in Police Station State Vigilance and Anti Corruption Bureau, Shimla (for short ‘SV&ACB’), under Sections 7 & 8 of the Prevention of Corruption (Amendment) Act, 1918 (for short ‘PC Act’).
2. Status report stands filed. Record was also made available.
3. Prosecution case is that report of conversation between one Balram and Dr. Ajay Kumar Gupta (petitioner), the then Director of Health Services, Himachal Pradesh, prepared by Inquiry Officer, Deputy Superintendent of Police, SV&ACB, SIU Shimla, was sent to the Government for according necessary permission to register a regular case against Dr. Ajay Kumar Gupta. Vide communication dated 17.9.2022, necessary permission was received from Special Secretary (Personnel) to the Government of Himachal Pradesh and, accordingly, FIR No.4 of 2022 has been registered in Police Station SV&ACB, Shimla.
4. According to Status Report, during investigation of FIR No.4 of 2020, dated 20.5.2020, registered under Sections 7 & 8 of PC Act, in Police Station SV&ACB, Shimla, conversations/call recordings between Mobile Number 9872495807 (saved in the name of Balram) and Dr. Ajay Kumar Gupta, were retrieved by State Forensic Science Laboratory from Mobile Phone of Dr. Ajay Kumar Gupta, among other conversations, which suggested offer and acceptance of bribery/criminal misconduct/misconduct on the part of public servant. Details surfaced from the conversation/ call records/documents indicated that for purchase of equipment/machine by the Health Department of Himachal Pradesh, share/cut-money was offered and received by Dr.Ajay Kumar Gupta and Balram at the rate of `85,000/- per machine and, for five machines, the amount of Bribe was `4,25,000/-, out of which an amount of `18,000/- was to be deducted as expenditure and, in the aforesaid amount, 80% amount was to be given to Dr. Ajay Kumar Gupta and 20% to Balram and, as per conversation, both of them calculated the share/cut-money payable to Dr. Ajay Kumar Gupta as `3,36,000/-, but finally Dr. Ajay Kumar Gupta demanded `3,40,000/- from Balram by informing Balram that `3,40,000/- be deposited in State Bank of India (SBI) Account, and through Whatsapp dated 17.4.2020, an image of handwritten details of Account maintained in the name of Smt. Renu Bala (sister-in-law of Dr. Ajay Kumar Gupta), in SBI Branch Ambala Cantt, were transmitted by Dr. Ajay Kumar Gupta to Balram.
5. It has been further stated in Status Report that on 9.4.2020, Director of Health Services sanctioned `30,01,600/- in favour of M/s Kroma Systems Company for purchasing five ABG Machines and the same was deposited/transferred in the Account of the Company maintained in ICICI Bank Branch in Sector 45C Burail, Chandigarh. It has further come in evidence that Balram was having Account in the name of NIT Simran Diagnostics, being maintained with Canara Bank, and amounts of `95,000/- and `13,44,452/- were transferred by M/s Kroma Systems Company to M/s NIT Simran Diagnostics, on 15.4.2020. On 17.5.2020, an amount of `3,40,000/- was transferred from Balram’s Account to SBI Account being maintained by Mrs. Renu Bala referred supra.
6. It is further stated in the Status Report that in the conversation retrieved from the Mobile Phone of Dr. Ajay Kumar Gupta, there are talks for negotiating the rate of Thermal Scanners and for determining cut-money wherein Balram had been assuring to pay `1,500/- per unit to Dr. Ajay Kumar Gupta.
7. It is also case of the Investigating Agency that in conversation dated 17.4.2020, Dr. Ajay Kumar Gupta had informed Balram about sending Account Number of Renu Bala to Balram through Whatsapp Message, with further advice to fill the Account Number carefully and to make a call immediately after completion of transaction. On 17.4.2020, in an
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