Allowed

Mukesh Kumar Agarwal v. the State of Jharkhand

Jharkhand HC20 Aug 2024A.B.A./10929/2023

Case brief

AI extract

What is this about?

This Single Judge judgment allows an anticipatory bail petition filed by two accused persons in a cheating case involving railway freight. The Court observed that since the foundational rate circulars are challenged before the Supreme Court and a civil suit is stayed, the circumstances warrant granting bail. It directs surrender to the trial court for enlargement on bail.

What did the court decide?

Petitioners directed to surrender within four weeks so as to be released on bail on furnishing a bond of Rs.10,000 with two sureties of similar amount.

Mukesh Kumar Agarwal Vs the State of Jharkhand — Anticipatory Bail | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 10929 of 2023

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Mukesh Kumar Agarwal, aged about 48, Son of Shri Mahabir Prasad Agarwal, presently residing at Glass Home, Gola Road, Chatti Bazar, P.O. & P.S. Chatti Bazar, District-Ramgarh.

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Digvijay Singh, aged about 46 years, son of Govind Singh, resident of Jhanda Chowk, Ramgarh Cantt., P.O. and P.S. Ramgarh Cantt., District-Ramgarh. .….. Petitioners

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Versus

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The State of Jharkhand.

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The Central Bureau of Investigation, ACB, Ranchi through Superintendent of Police, P.S. Gonda, P.O. Kanke, Audrey House, Kanke Road, District-Ranchi.

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The South Eastern Railway through its Chief Commercial Manager officiating from Chakradharpur, son of not known to the petitioner, resident of Chakradharpur, P.O. P.S. and District-Chakradharpur.

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The Senior Divisional Commercial Manager, South Eastern Railway, son of not known to the petitioner, resident of Chakradharpur, P.O. P.S. and District-Chakradharpur. …. Opposite Parties

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Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

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-------- For the Petitioners : Mr. Sumeet Gadodia, Advocate For the C.B.I. : Mr. Anil Kumar, Sr. Advocate

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14/20/08/2024 Heard Mr. Sumeet Gadodia, learned counsel for the petitioners and Mr. Anil Kumar, learned senior counsel appearing for the C.B.I.

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2. Both the petitioners apprehend their arrest in connection with R.C. Case No. 12 (S)/ 2012-R instituted for the offences punishable under sections 120B read with sections 420, 468 and 471 of the Indian Penal Code.

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3. The prosecution case in brief is that the petitioners had entered into a criminal conspiracy with unknown persons and cheated the Indian Railways to the tune of Rs.10,00,10,873.30 during the period 2008-09 to 2010-11 by way of transportation of iron ore at a cheaper freight under dishonest and fraudulent declaration of domestic usages of iron ore.

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4. It has been stated that the Ministry of Railways as empowered under section 30 of the Railways Act, 1989 issues directions regarding freight charges for transportation of goods for which it issues rate circulars from time to time and as per such rate circulars prevalent during the period under consideration, rail transport charges for iron ore meant for domestic consumption were fixed at a much cheaper rate than the same meant for other domestic usages. It has been stated that for availing the lower freight

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A.B.A. No. 10929 of 2023

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rates, the transporter is required to submit a written declaration in the form of affidavit and indemnity bond that the iron ore will be utilized for domestic consumption only.

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It has been alleged that M/s Vishal Sponge (P) Ltd. is engaged in the manufacturing of sponge iron from iron ore at its unit with an installed capacity of 7,500 MT/annum and as per the industrial norms it requires iron ore equivalent to 1.6 times of its installed capacity which comes to approximately 12,000 MT iron ore per annum.

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It has been alleged that between the period 2008-09 and 2010-11, M/s Vishal Sponge (P) Ltd. had transported iron ore much more than its normative requirement at cheaper freight through South Eastern Railway on a dishonest and fraudulent declaration that the iron ore transported by them would be utilized for domestic consumption and thus causing loss of revenue on freight.

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5. It has been submitted by Mr. Sumeet Gadodia, learned counsel appearing for the petitioners, that though the prayer for anticipatory bail of the petitioners has been rejected by this Court earlier, the petitioners have sought to renew their prayer for anticipatory bail in the changed circumstances, which has occurred post such rejection to the effect that the railways have instituted a civil suit for recovery of the alleged loss to the railways, in which the petitioners have appeared and have also filed a written statement in which the Calcutta High Court has passed an order of “sine die” on account of the pendency of the challenge made to the rate circulars before the Hon’ble Supreme Court. He has referred to the case of State of M.P. Vs. Kajad reported in 2001 (7) SCC 673 in support of such contention. Mr. Gadodia has also submitted that the petitioners were not arrested during investigation and he has placed reliance in the case of Satyendra Kumar Antil Vs. Central Bureau of Investigation and Anr. reported in 2022 (10) SCC 51, Siddharth Vs. The State of Uttar Pradesh and Ors. reported in 2022(1) SCC 676 and the order dated 21.3.2023 passed in Misc. Application No.2034/22 in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Anr.

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6. Mr. Anil Kumar, learned Senior Counsel for the C.B.I., has submitted that specific allegations of defrauding the railways have been made against the petitioners, which has caused a huge loss to the railways. It has been

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A.B.A. No. 10929 of 2023

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submitted that all the aspect of the allegations have been considered in A.B.A. No. 3025/15 and there are no fresh grounds available to the petitioners for renewing their prayer for anticipatory bail.

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7. The freight charges, which were alleged to have been taken advantage of by the petitioners was of transportation through rail of iron ore meant for domestic consumption instead of transportation of iron ore for the charges other than domestic consumption/domestic usages which includes export, trade etc. Such transportation charges are cheaper when the goods are meant for domestic consumption. These variance in the charges are what have been spelt out in the rate circular issued by the Railways. It appears that the company of the petitioners M/s Vishal Sponge (P) Ltd. had preferred a writ application before this Court in W.P.C. No. 3939/14 challenging the rate circulars in question and in view of the order of the Hon’ble Supreme Court dated 22.1.2016 this case along with all other analogous cases were transferred to the Hon’ble Supreme Court. The Railways have also instituted a suit for recovery of the loss before the Calcutta High Court being CS/22/2016 in which the petitioners have put in their appearance and have also filed written statement. The said suit however has been adjourned “sine die” vide order dated 11.4.2023 on account of the pendency of similar matters before the Hon’ble Supreme Court.

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8. In the case of State of M.P. Vs. Kajad (supra), it has been held as follows:-

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“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and various other judgments”.

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9. The developments in the case which have been noticed above and which goes to the core of the allegations definitely makes this anticipatory bail application maintainable.

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10. In Satender Kumar Antil Vs. Central Bureau of Investigation and Anr. (supra) it has been held as follows:-

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A.B.A. No. 10929 of 2023

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“ 86. Now we shall come to Category C. We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.

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Precedents

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89. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the Special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code”.

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11. Reference has also been made to the case of Satender Kumar Antil Vs. C.B.I. and another in Misc. Application No. 2034/22 and the following para has been highlighted by the learned counsel for the petitioners:-

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“ (v) Mr. Siddharth Aggarwal, learned senior Counsel seeks to bring to our notice an order passed yesterday by a Bench of this Court in Criminal Appeal No. 853/2023, Mahdoom Bava vs. Central Bureau of Investigation where the issue qua how the Court deals with anticipatory bail where a person has cooperated with investigation but never arrested and charge sheet has been filed has been dealt with. He referred to the observations in para 10 and 12 as under :

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10. More importantly, the appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order The correctness of such a practice has to be tested in an appropriate case. Suffice for the present to note that it is not the CBI which is seeking their custody, but the appellants

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A.B.A. No. 10929 of 2023

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apprehend that they may be remanded to custody by the Trial Court and this is why they seek protection. We must keep this in mind while deciding the fate of these appeals.

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12. In view of the aforesaid, we are of the considered view that the appellants are entitled to be released on bail, in the event of the Court choosing to remand them to custody, when they appear in response to the summoning order. Therefore, the appeals are allowed and the appellants are directed to be released on bail, in the event of their arrest, subject to such terms and conditions as may be imposed by the Special Court, including the condition for the surrender of the passport, if any.”

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Learned counsel submits that though there 12 is observation qua the correctness of the practice to be tested in an appropriate case, this case itself is the appropriate case as directions have already been passed and somehow they have been understood as if they will apply to cases for regular bail and not to anticipatory bail. We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail”.

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12. The charesheet has been submitted and there is no necessity of the Investigating Agency of custodial interrogation of the petitioners apart from the fact that the rate circulars which forms the backbone of the allegations levelled against the petitioners are under challenge before the Hon’ble Supreme Court. All these add up to a scenario where the petitioners deserve the privilege of anticipatory bail.

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13. The petitioners, named above, are therefore directed to surrender in the court below within a period of four weeks from today and on their surrender/arrest, they will be enlarged on bail, on furnishing bail bond of Rs.10,000/- (Ten thousand only) each with two sureties of the like amount each to the satisfaction of learned Special Judicial Magistrate, C.B.I., Ranchi in connection with R.C. Case No. 12 (S)/ 2012-R, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. 14. This application stands allowed.

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(Rongon Mukhopadhyay, J)

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Rakesh/-

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A.B.A. No. 10929 of 2023

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Mukesh Kumar Agarwal v. the State of Jharkhand

Case brief

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Mukesh Kumar Agarwal v. the State of Jharkhand

Case brief

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