CRM-M No. 12077 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: May 23, 2011 1. CRM-M No. 12077 of 2011(O&M) **** Dr. Swaran Singh, I.A.S.(Retd.) vs. State of Punjab 2. CRM-M No. 12817 of 2011 Sanjay Gera and another vs. State of Punjab Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. APS Deol, Sr. Advocate with Mr. Daldeep Singh, Advocate for petitioner in CRM-M No. 12077 of 2011 Mr. Deepak Manchanda, Advocate for the petitioners in CRM-M No. 12817 of 2011. Dr.U.S.Dhaliwal, Addl. AG, Punjab. Mr. R.S. Bains, Advocate for the complainant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J.(Oral): The aforementioned two petitions for anticipatory bail have been filed in case bearing FIR No. 7 dated 26.03.2011, under Sections 420, 467, 468, 471, 120-B IPC and Section 13(1)(D) read with Section 13(2) of the Prevention of Corruption Act, 1988, registered at Police Station Vigilance Bureau Range, Jalandhar. Since they both arise out of the same FIR, they are being disposed of by this common order. CRM-M No. 12077 of 2011(O&M) 2 The allegations in the FIR are that under the guise of holding centenary celebrations of Shaheed Bhagat Singh, huge amounts of money were defalcated by the petitioner(s) in both the cases. The petitioner in CRM-M No. 12077 of 2011 was the Principal Secretary, Cultural Affairs at that time and in his capacity as such was the Chairman of the Committee formed by the Government to conduct the centenary celebrations, while the petitioner in CRM-M No. 12817 of 2011 was the firm M/s G.M. Entertainment which was engaged as an event manager. The main allegations were that the firm was pre-decided who got the money released but did not make payments to the artists as claimed. Learned Senior Counsel has argued that the allegation that the firm was handpicked is wrong and that once that is so, the selection of the firm cannot be doubted. Thereafter the firm made the claim of the payments as per Memorandum Of Understanding and that was released by the Committee of which the petitioner was only one member. He has further argued that the petitioner being in the position that he was, could not be held responsible for having personally verified each item as to whether the firm had made the necessary payments or not since as per clause (1) of the Memorandum Of Understanding, the position was that once the function was held the money would be paid at the responsibility of the event manager. Learned Senior Counsel has placed reliance upon Siddharam Satllingappa Mhetre v. State of Maharashtra and others reported as 2011(1) RCR(Criminal) 126. The relevant paras relied upon are being reproduced herein below:- “17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a CRM-M No. 12077 of 2011(O&M) 3 free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. 29. Mr. Bhushan submitted that the Constitution Bench in Sibbia's case (supra) also mentioned that "we see no valid reason for rewriting Section 438 with a view, not to expanding 17 the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal". 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in case of large magnitude affecting a very large number of people. CRM-M No. 12077 of 2011(O&M) 4 vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” Learned Senior Counsel has also placed reliance upon State of Madhya Pradesh v. Sheetla Sahai and others reported as 2009(3) RCR (Criminal) 835. Para 53 thereof is reproduced here as under:- “53 Mr. Tulsi would suggest that the very fact that the respondent No. 1 being a Minister kept the file with him for a period of six months so as to see that the then Secretary Mr. M.S. Billore retires so as to enable him to obtain opinion of another officer would prima facie establish that he intended to cause pecuniary gain to the respondent Nos. 8, 9 and 10. We have noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all CRM-M No. 12077 of 2011(O&M) 5 intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materials available. In Inspector Prem Chand v. Govt. of N.C.T. of Delhi & Ors. 2007(2) SCT 650: 2007(2) RAJ 565:[2007 AIR SCW 2532], this Court observed: "In State of Punjab and Ors. vs. Ram Singh Ex. Constable 1992(3) SCT 448: [1992 (4) SCC 54], it was stated: "Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus: 'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under: CRM-M No. 12077 of 2011(O&M) 6 "The term `misconduct' implies, a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word `misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct." The question before this Court is whether the present case falls within the parameters laid down by the Hon'ble Supreme Court in the two judgments. On 18.05.2011 the following order was passed:- “On the last date a question had been put regarding two allegations viz. identity of M/s Nest Entertainment and corroboration of the fact that whatever money was claimed as having been paid to the various artists, was actually paid. As regards the first allegation, learned Senior Counsel has argued that he has material to show that M/s Nest Entertainment is not a fictitious entity as is claimed by the prosecution. As regards the second allegation, learned Senior Counsel has argued that as per the Memorandum Of Understanding it was not his duty to verify whether the money claimed to have been paid to the artists was actually paid or not. Learned Addl. AG, on instructions from SI Kulwant Singh(Investigating Officer) has, however, asserted that out of total payment of at least ` 1, 10,00,000/-, as per investigation only about ` 12,50,000/- are shown as having been paid to the various artists and thus prima facie there is an embezzlement of almost One Crore Rupees. He has also placed reliance on an answer to question No. 18 of the questionnaire which was served upon the petitioner to argue that this misappropriation could not have been committed without his active connivance. Adjourned to 23.05.2011 for further hearing.” CRM-M No. 12077 of 2011(O&M) 7 Today I asked learned counsel appearing on behalf of M/s G.M. Entertainment whether the petitioner had any evidence to show that the amount obtained from the Government had actually been paid to the artists as claimed by them. Learned counsel has stated that he has no other material except the fact that this payment is reflected in the balance-sheet of the company. In my opinion this is too facile an answer. In case a sum of ` 1 Crore odd had been paid there would definitely have been some supporting material than a mere entry to that effect in the balance- sheet. In fact, such an entry could only have been made on the basis of the material to show the same. In view of this development the argument of learned Senior Counsel for the other petitioner that it was not part of his duty to verify the amount paid has to be taken with a pinch of salt. It is impossible for any officer to disclaim responsibility for distribution of public funds without satisfying himself that the money has been utilised. No doubt the petitioner was not supposed to work as an accountant and check the payments but it was definitely expected of him to have ensured that his subordinates authenticate the veracity of the claims and then to release the payment. The second argument that the petitioner is being victimised because he resigned from service in order to fight election from the camp of the opposite party also cannot be accepted at face value since the present is a case which had to be registered by the Government as a consequence of sustained effort and material placed before it by a private person who had obtained the necessary information unde the Right to Information Act which itself took a considerable period. CRM-M No. 12077 of 2011(O&M) 8 In the circumstances, in my considered opinion, in the present case the balance which has to be stuck between the two factors namely free, fair and full investigation vis-a-vis prevention of harassment, humiliation and unjustified detention would tilt in favour of the investigation. As regards the judgement in case of State of Madhya Pradesh V. Sheetla Sahai and others (supra) it is to be noticed that the allegation against the petitioner (s) is that of not merely 'misconduct' but 'criminal misconduct.' The third argument made by learned Senior Counsel is with regard to the delay in lodging of the present case. That can be explained by the fact that, as noticed above, the case was filed after a private citizen obtained information under the Right to Information Act and then supplied the same to the Vigilance Bureau, Punjab. The Vigilance Bureau, Punjab conducted detailed inquiry which associated the petitioner(s) also before the present case was lodged. In view of the salient fact that even today there is no account of almost ` 90 lacs which was paid to M/s G.M. Entertainment, the last argument that the petitioner had joined the inquiry, can also be of no avail. Consequently this Court is reluctantly constrained to dismiss the present petitions. A copy of this order be placed on the file of the connected case. ( AJAY TEWARI ) JUDGE May 23, 2011 sunita