Allowed

Keshari Kishore Sharan Sinha v. the Union of India through the C B I

Jharkhand HC5 Dec 2022A.B.A./2798/2022

Case brief

AI extract

What is this about?

The High Court of Jharkhand granted anticipatory bail to retired officers of Bharat Coking Coal Limited. The court found no allegation of illegal gratification regarding the procurement irregularities and noted the submitted chargesheet and lack of flight risk, relying on Supreme Court precedents.

What did the court decide?

Anticipatory bail granted subject to surrender within three weeks and filing a bail bond of Rs. 25,000/- with two sureties.

Keshari Kishore Sharan Sinha Vs the Union of India through the… — Corruption | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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A.B.A. No. 2748 of 2022

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Girja Upreti ..... … Petitioner with A.B.A. No. 2781 of 2022 Rajinder Kumar Munshi ..... … Petitioner with A.B.A. No. 2785 of 2022 Alok Mondal ..... … Petitioner with A.B.A. No. 2798 of 2022 Keshari Kishore Sharan Sinha ..... … Petitioner with A.B.A. No. 2957 of 2022 Tapas Kumar Lahiry @ Tapas Kumar Lahiri ..... … Petitioner with A.B.A. No. 3020 of 2022 Rudrajit Dasgupta ..... … Petitioner with A.B.A. No. 3101 of 2022 Rakesh Sinha ..... … Petitioner with A.B.A. No. 3476 of 2022 Pradip Kumar Chakraborty ..... … Petitioner with A.B.A. No. 4119 of 2022 Bhogilal Chotalia ..... … Petitioner with A.B.A. No. 4395 of 2022 Dinesh Chandra Jha ..... … Petitioner with A.B.A. No. 4564 of 2022 Madan Mishra ..... … Petitioner with A.B.A. No. 4887 of 2022 Satya Anugrah Narain ..... … Petitioner with A.B.A. No. 5070 of 2022 Chandra Mohan ..... … Petitioner Versus Union of India through CBI ..... … Opposite Parties [in all cases]

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Versus --------

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. R.S. Mazumdar, Sr. Advocate. : Mr. Nishant Kumar Roy, Advocate : Mr. Indrajit Sinha, Advocate.

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-2: Mr. Pandey Neeraj Rai, Advocate. : Mr. Atanau Banerjee, Advocate. : Mr. Kautav Roy, Advocate. : Mr. Abhay Kumar Mishra, Advocate. : Mr. Soumitra Baroi, Advocate. For the CBI : Mr. Anil Kumar, A.S.G.I. : Ms Chandana Kumari, A.C. to A.S.G.I. [in all cases]

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14/ 05.12.2022 Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners in A.B.A. Nos. 2748, 2781, 2785, 2798, 2957, 3020 and 4395 of 2022, Mr. Pandey Neeraj Rai, learned counsel in A.B.A. No. 3101 of 2022, Mr. Atanu Banerjee, learned counsel in A.B.A. No. 3476 of 2022, Mr. Kautav Roy, learned counsel in A.B.A. No. 4119 of 2022, Mr. Abhay Kumar Mishra, learned counsel in A.B.A. No. 4564 of 2022 and Mr. R.S. Mazumdar, learned senior counsel assisted by Mr. Soumitra Baroi, learned counsel in A.B.A. Nos. 4887 and 5070 of 2022 and Mr. Anil Kumar, learned A.S.G.I., assisted by Ms. Chandana Kumari, learned A.C. to A.S.G.I. for the CBI in all these cases.

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In all these anticipatory bail applications, the aforementioned petitioners are apprehending their arrest, in connection with R.C. Case No. 09(A) of 2017-D dated 22.11.2017, registered for the offences punishable under Sections 120-B and 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption act, pending in the court of learned Additional Sessions Judge-III-cum-Special Judge, CBI, Dhanbad.

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The CBI registered the case, alleging there under:-

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(i) The accused persons (public servants) in conspiracy with M/s Jiamusi Coal Mining Machinery Company Limited, Beijing (China) and its Indian agent cheated M/s Bharat Coking Coal Limited, Dhanbad during the period 2009 to 2016 by issuing supply order for two Road Header Machines for use in coal mining activities and making payment to the said company as well as accepting the said machines, which were not fulfilling the requirement of technical specification, due to which, both the machines broke down / remained unutilized, resulting wrongful loss of Rs. 11.60 crores (approx.) to BCCL.

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(ii) It is further alleged that against the requirement of Road Header Machines of 1.6 M, the said company supplied machines with overall height much more than specified in the NIT and supply order.

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(iii) It is also alleged that false inspection reports were submitted

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by the said company and due to this, both the machines were not accepted by the BCCL, W.J. Area, Moonidih, Dhanbad, but still the accused persons accepted the machines and made 80% payment and they tried to justify the said illegal procurement to reuse the rejected machines instead of insisting the said firm to replace or modify the machines at their cost. It was known to the accused persons that the height of machines was much higher than the available seam of coal and as such there was no way the machines could have been put to any productive use.

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(iv) It is further alleged that the accused persons failed to recommend any action against the said company or its Indian agent, who had supplied the machines, which were not as per the supply order and taken 80% payment.

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(v) It is also alleged that one of the Road Header Machines broke down since November, 2015 and another was with effect from 03.02.2016 due to expiry of permission time of field trial. Thus, the accused-public servants of BCCL, firm and others cheated the BCCL and caused wrongful loss to the tune of Rs. 11.60 crores (approx) and corresponding wrongful gain to themselves.

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(vi) The Director, Central Vigilance Commission, New Delhi vide order No. 015/COL/051-337020 dtd. 17.02.2017 in exercises of powers conferred under Section 8(1)(d) and 8(1)(h) of the C.V.C. Act, 2003 had directed the CBI to conduct an investigation into the manner of acquisition of equipments, whose specifications are altogether different from the tendered one, non-returning of such inappropriate machinery, making of payment even though the machinery delivered was not the one ordered for and other connected issues including the role of the officers, who dealt with the issue, foreign supplier, their Indian agent and others involved.

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(vii) The above mentioned facts prima facie reveal commission of cognizable offence under Section 120-B and 420 of the Indian Penal code and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner and other accused persons and accordingly, FIR R.C. Case No. 09(A) of 2017-D was registered on 22.11.2017.

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Mr. Indrajit Sinha, learned counsel appearing for the petitioner in A.B.A. No. 2781 of 2022 submits that it has been alleged that against the requirements of Road Header Machine, having height of 1.6 meter, M/s Bharat Coking Coal Limited, Dhanbad initiated for procurement of two Road Header Machines on 14.12.2005 and a global tender was floated by M/s BCCL on 02.06.2006. He submits that due to non-response by the bidder, as per the global tender/technical specification, the said global tender was scrapped on 20.02.2007 and on certain modification / technical specification of fresh global tender was floated on 12.02.2008 and pre bid meeting was scheduled on 24.03.2008. He further submits that the allegations are made that the officers of M/s BCCL entered into a criminal conspiracy with M/s Jiamusi Coal Mining Machinery Company Limited, Beijing (China) and their Indian agent, recommended to open the price bid of M/s Jiamusi and for further consideration. He further submits that it is alleged that the company has not obtained the approval from the Director General of Mines Safety, Dhanbad regarding the machines. He further submits it is alleged that all unsuitable Road Header Machines were procured by the officers of M/s BCCL from M/s Jiamusi Coal Mining Machinery Company Limited, Beijing (China) and said machines did not clear the field trial to get an approval from DGMS, Dhanbad, as a result of which, machines are remained unutilized, resulting in huge wrongful loss to M/s BCCL and corresponding gain to M/s Jiamusi Coal Mining Machinery Company Limited and its Indian agent. He further submits that all these petitioners are the officers / employees of M/s BCCL and all of them have already retired from service and also they are not at flight risk, as they are the retired officials of M/s BCCL . He further submits that the chargesheet has already been submitted, however, there is no allegation of taking any illegal gratification so far as these petitioners are concerned.

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Learned counsel appearing for the petitioners have relied in the case of Satender Kumar Antil Versus Central Bureau of Investigation & Anr. , reported in (2022) SCC Online SC 825 , wherein the Hon’ble Supreme Court has held that there is no requirement of arrest, once the chargesheet has been submitted. In that view of the matter, learned counsel submits that the petitioners may kindly be granted the privilege of anticipatory bail.

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On the other hand, Mr. Anil Kumar, learned A.S.G.I. appearing for the CBI vehemently opposed the prayer of the petitioners and submits that there are parameters of extending the benefits of

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anticipatory bail and in the case in hand there are serious allegation against the petitioners in the chargesheet. To buttress his arguments, he draws the attention of the court towards the chargesheet, which is contained at Annexure-2 in A.B.A. No. 2748 of 2022. He further submits that the all these petitioners are connived with each other and the Road Header Machines were purchased and 80% of the payment was already released and the said machines were remained unutilized and a loss of Rs. 11 cores have occurred to M/s BCCL . He elaborately read the charge, which has come in these petitions and submits that these petitioners are not deserving the privilege of anticipatory bail.

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In view of such submissions of learned counsel appearing for the parties in the respective cases, it is an admitted fact that all these petitioners were the employees / officers of M/s BCCL and they have already retired from service. Looking into the chargesheet, nothing has come so far as receiving the illegal gratification against these petitioners are concerned. The allegation is with regard to procurement of the machines in question, in which, higher officers were involved in floating the tender, which was subsequently cancelled and again new tender was floated. It has come in the chargesheet that Tapas Kumar Lahiry @ Tapas Kumar Lahiri, the then Director (Technical) Operation, BCCL HQ, Dhanbad, he has taken the matter up to the Board of Directors and the Board of Directors have also cleared the proposal and thereafter the machines in question were procured and were used for some time. Further the petitioners are the retired officials of the BCCL and also they are not at the flight risk and the chargesheet has already been submitted in this case and during course of investigation, they have co-operated with the investigating agency, as such, they have not been taken into custody. This aspect of the matter has been considered recently by the Hon’ble Supreme Court in the case of Satender Kumar Antil (Supra) holding that though the power of court to grant anticipatory bail under Section 438 Cr.P.C. is an extraordinary power that doesn’t imply that this power has to be used sparingly and in exceptional case. The court must keep in mind that a person seeking relief of anticipatory bail, denial of bail amounts to deprivation of personal liberty. The court should lean against the imposition of unnecessary restrictions on the scope of Section 438 Cr.P.C. The Court is very slow in granting the anticipatory bail in cases where there is statutory bar and the anticipatory bail cannot be granted as a blanket protection. ‘

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In view of the above facts and considering the submissions of the parties and also considering that the chargesheet has already been submitted in the case and the petitioners were not arrested during investigation and they are also not at the flight risk and illegal gratification has not been received from them, the court is inclined to grant anticipatory bail to the petitioners under Section 438 Cr.P.C.

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Accordingly, the petitioners, named above, are directed to surrender in the learned court within three weeks from the date of this order and in the event of their surrender/ arrest, the petitioners, above named, shall be released on anticipatory bail, on furnishing bail bond of Rs. 25,000/- (Twenty Five Thousand) each with two sureties of the like amount each to the satisfaction of the learned Additional Sessions JudgeIII-cum-Special Judge, CBI, Dhanbad, in connection with R.C. Case No. 09(A) of 2017-D, subject to the conditions, as laid down under Section 438(2) of the Code of Criminal Procedure.

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Amitesh/-

Keshari Kishore Sharan Sinha v. the Union of India through the C B I

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Keshari Kishore Sharan Sinha v. the Union of India through the C B I

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