- (1.) HEARD the learned Counsel appearing on behalf of each of the applicants and the learned Chief Public Prosecutor for the State.
(2.) ALL these three applications can be disposed of by a common order since the facts in all the three cases are interlinked and secondly the arguments have been advanced by the learned Counsel for the applicants in these three applications one after another and the learned Chief Public Prosecutor has given reply to all the three applications which have been filed. Essentially, the relief which is claimed in all these three applications is that the applicants are seeking an order of anticipatory bail in the event of their arrest in connection with the FIR which is filed on 20/1/2006 in which it is inter alia alleged that the applicant Shri Dayanand Nayak has misused his position as a public servant and other two applicants viz. Smt. Komal Dayanand Nayak - the wife of the public servant and Shri Padte - the applicant in the third application, had abetted the public servant in amassing wealth which was disproportionate to the known sources of his income and, therefore, the public servant has committed an offence punishable under section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called "the said Act") and the other two applicants viz. the wife of the public servant and his alleged friend Shri Padte had abetted him in the commission of the said offence and were, therefore, liable to be prosecuted under the provisions of section 13(1)(e) of the said Act read with section 109 of the Indian Penal Code. Shri Gupte, the learned Counsel appearing on behalf of the public servant submitted that the perusal of the FIR discloses that sanction to investigate was granted long time ago and that the investigation was complete as is disclosed from the details which are mentioned in the FIR and, therefore, further custodial interrogation of the public servant was not at all necessary. He further submitted that the public servant had already been suspended and he had no access to the documents or files which are already seized by the Investigating Officer and, therefore, the question of tampering with these documents also did not arise. He invited my attention to the FIR and the details which were given in the FIR regarding various allegations which were made against the public servant and his wife and Shri Padte. He submitted that in cases where the allegations are made under the provisions of section 13(1)(e), custodial interrogation rarely takes place and the applicant is produced before the special court and he is released on bail as a matter of course since there is no question of there being recovery at the instance of the accused or for the purpose of interrogating him personally in respect of the documents which are already seized. He further submitted that apart from the fact that custodial interrogation was not necessary, in the present case, the various events which are mentioned in the application disclose that the action which was being initiated against him was nothing but a malafide action at the behest of certain Officials in the Department and as a result of an enmity which was created between the public servant and the underworld elements which were offended as a result of his meritorious service and, therefore, an attempt was made to remove him from the office. He further submitted that, initially, the allegations were made against him by one Ketan Tirodkar who is an accused in MCOC Case which is still pending before the Special Court, who had made allegations against the present applicant - public servant that he had links with the underworld and that he had donated an amount of Rs.1 crore to a School at his native place which was being run in the name of his mother. He submitted that after these allegations were made, inquiry was made at the highest level in the Department and he was exonerated in the said inquiry by the high ranking Officer and in the said inquiry it transpired that only an amount of Rs.10,000/- was donated by the public servant to the said School and none of the donors had claimed that this amount had been paid on account of any force or threat or under coercion from the public servant. He submitted that after the said journalist - Ketan Tirodkar failed in his attempt to implicate the present applicant in the said case, another allegation was made that the applicant - Shri Dayanand Nayak had links with the underworld and, therefore, the provisions of MCOC Act should be made applicable to him. He submitted that in the case of these allegations also an inquiry was made pursuant to the directions which were given by the High Level Committee and in the said inquiry also, the applicant Shri Dayanand Nayak was exonerated and it was established that he had no links with the underworld and, therefore, the provisions of MCOC Act were not made applicable to him. Shri Gupte, the learned Counsel, submitted that after having failed in the second attempt to implicate the present applicant the said Ketan Tirodkar and others did not want to leave any stone unturned to ensure that the applicant is removed from the service and, therefore, he submitted that the Writ Petition bearing No.64 of 2006 was filed by the said Ketan Tirodkar before the Division Bench of this Court in which the following prayers were made. A] Ordering the Bureau of Anti-corruption to deposit the records and proceedings of the investigations against PSI Nayak and his wife with this Hon'ble Court forthwith; B] Ordering the Director General Anti-corruption to file affidavit as to whether there is a prima-facie case against PSI Nayak and his wife and the figures and numbers given by me in this petition are true; C] Ordering immediate suspension and arrest of PSI Nayak; if my contentions are corroborated by the material submitted by the State in this regard. D] Ordering the Director General of Police State to offer a tightest possible security cover at my residence and for me and my parents till the private complaint proceedings are being conducted in the Court of MCOCA in Special Case 4 of 2003; E] Any other such relief as this Hon'ble Court may think proper in the interest of justice." He submitted that, thereafter, the Division Bench of this Court on 31/1/2006 passed the following order:- "P.C. "1. We have heard the Petitioner present in person and Mr. Borulkar learned P.P. as well as Mrs. Kantharia A.P.P. for the State. 2. The Petitioner has expressed his serious apprehensions regarding the ongoing investigations by the Anti Corruption Bureau into the disproportionate assets allegedly held/possessed by Mr. Daya Nayak, Police Sub-Inspector under the Mumbai Commissionarate and his family members and therefore, he has prayed for directions in that regard. We have been informed that on the basis of the preliminary report submitted, FIR has been lodged against Mr. Nayak and Mr. Bhonge, Asstt. Commissioner of Police ACB Mumbai has been appointed as the Investigating Officer. We are prima facie satisfied that the issues raised by the Petitioner require considerations. Hence rule. 3. So far as the issue of police protection to the Petitioner is concerned the learned P.P. on instructions states that the Order passed by this Court on 4th November 2003 in that regard in Criminal Writ Petition No.1573 of 2003 will be followed and implemented by the Police Commissioner, Thane. We order accordingly and at the cost of the State. The Director General of Anti CorruptionBureau will place before us the progress report into the ongoing investigations every 2 weeks and we are sure that the Investigating Officer and/or the Director General, Anti Corruption Bureau would take appropriate steps, for seizure/attachment of all the properties concerned. In case the Petitioner approaches the I.O., his statement shall be recorded as part of the ongoing investigation. Liberty to apply for the earlier disposal of the Petition, on completion of the investigation. " He further submitted that after the aforesaid Writ Petition was filed, the present complaint had been filed on 20/1/2006. He submitted that, therefore, there was sufficient material which smacked of malafide intention on the part of the said journalist Shri Ketan Tirodkar who himself was an accused in MCOC Case and had, on his own admission, links with the underworld gangster Chhota Shakil. The learned Counsel also invited my attention to the judgment of the Supreme Court in the case of Gurbaksh Singh Sibbia etc. vs The State of Punjab reported in AIR 1980 SC 1632. He submitted that the Supreme Court while considering the guide lines which were laid down by the Full Bench of the Punjab and Haryana High Court had, in terms, set aside the guide lines which were laid down by the Full Bench of Punjab and Haryana High Court in respect of the cases pertaining to the Prevention of Corruption act and held that such a premise or guide line could not be laid down and what was essential in a case where an application under section 438 is filed was to see whether there was sufficient material on record to indicate that the malafide action was being initiated. He also invited my attention to the other observations of the Supreme Court in the said judgment and the guide lines which were laid down by the Supreme Court while considering the said case. He, therefore, submitted that this is a fit case where investigation was already going on for a period of more than one year and, therefore, the question of custodial interrogation did not arise. He further pointed out that the applicant Dayanand Nayak was made a target by various other Officials who had links with the underworld and, therefore, if the applicant is taken into custody, there is every possibility of there being danger to his life and to the life of his wife and, therefore, he submitted that the investigation could be carried out without the applicant and his wife being taken into custody.
(3.) SHRI Mundargi, learned Counsel appearing on behalf of Smt. Komal Dayanand Nayak - wife of Shri Dayanand Nayak, submitted that so far as the said applicant is concerned, she was employed since 1989 and had worked initially at Chennai with one P. Rajaratnam and, thereafter, she was transferred to Mumbai and was working with the Company known as Ojus Housing Finance Pvt. Ltd. He submitted that the FIR discloses that the income of the said applicant prior to 2000-2001had not been taken into consideration though she had worked since 1989. He further submitted that all the entries in the accounts of the said Company "Ojus Housing Finance Pvt. Ltd. were the entries where monies were deposited by cheques. He submitted that though Ojus Housing Finance Pvt. Ltd. was purchased by the wife of the applicant" Dayanand Nayak in the year 2002, subsequently, she had resigned from the said Company and an intimation to that effect had been given to the Registrar of Companies. He pointed out from the various allegations which were made in the FIR against his client that the said transactions were in no way concerned with the public servant and that they were transactions where the other persons viz. P. Rajaratnam, Manivelan and Naidu were involved who had made representations to various persons in Punjab and other places and who had deposited the said amount in the accounts of the said Company. Some cheques were dishonoured. Some cheques were honoured and theamounts were withdrawn by her in cash and payments had been made. He submitted that in respect of the amounts which were received from the persons from Punjab are concerned, a complaint had been registered against various persons and the investigation had been carried out separately in respect of the assurances which were given by Shri Naidu, Manivelan and others and the applicant Mrs. Komal Dayanand Nayak had not met the complainant in the said complaint and she neither had any concern with the said transaction nor had her husband any connection with the said transaction as his name also had not figured anywhere in the complaint which was filed by the people in Punjab. He submitted that it was not a case of Benami transactions as the persons who had deposited the amount from Punjab were not fictitious persons but their existence was beyond doubt and they had prosecuted the persons who were responsible for perpetrating the fraud. He immediately invited my attention to the other entries which were made in the FIR and strenuously submitted that all those entries indicated, at the highest, that certain cheques were deposited in the Bank Accounts of the Company which cheques, though the amounts involved were huge, had been dishonoured. He submitted that all these transactions did not in any way establish any link with the public servant - Dayanand Nayak and, therefore, it could not be said that Smt. Komal Nayak- the applicant had abetted her husband in acquiring and amassing the wealth. He invited my attention to the judgment of the Supreme Court in the case of D.S. Chennai Vs. K. Inbasagaran reported in 2006 All M.R. (Cri) 304 (S.C.) wherein the Supreme Court had held that if the wife of the public servant had taken responsibility towards the unaccounted money which was found in the house which was raided by the party of the Income-tax Department, that was sufficient explanation, though the wife, in her statement, had admitted that she had committed a breach of the provisions of the Income-tax Act or had committed breach of other provisions of law by selling machinery of the Company. He invited my attention to the observations made by the Supreme Court in the said case. He further submitted that so far as the three flats which were said to have been acquired by the wife of the applicant, he submitted that the documentary evidence indicated that one was taken on lease, the other flat was purchased for a consideration of Rs.10 lakhs which was, in fact, the value which was arrived at on the basis of 300 times rent of the said flat and lastly the third flat had been purchased by her by obtaining a loan from the Bank and part of the amount was paid in cash and the said amount of loan had not been repaid. He submitted that, therefore, so far as these three properties are concerned, there is sufficient material to indicate that the allegations made by the Investigating Officer in the FIR was prima facie not correct and that a fishing and roving inquiry was being made in respect of the affairs of the Company where the applicant-Smt. Komal Nayak had interest along with some other persons who were unconnected with the public servant Shri Dayanand Nayak. He submitted that the custodial interrogation of the applicant who is the wife of the public servant was not essential and, therefore, she was entitled to be released on bail in the event of her arrest in connection with the said case.;