- (1.) The State of Rajasthan has filed these two applications under Section 439(2) Cr. P. C. for cancellation of order granting bail to the accused non-applicants by Mr. R. S. Rathore, RHJS, Special Judge, Sessions Court (Prevention of Corruption Act) Jaipur, (for short "Special Judge"), in FIR No. 109/2004 of Anti Corruption Bureau, Jaipur. The Special Judge has granted bail to accused-non- applicant R. S. Srivastava (hereinafter referred as "an accused") vide order dated 10th August, 2004 on an application under Section 167(2) Cr. P. C. whereas the another accused-non-applicant Ajay Data (hereinafter referred as "co-accused") has been allowed bail under Section 437 Cr. P. C. vide order dated 11-8-2004. Both the applications under Section 439(2) Cr. P. C. arise from FIR No. 109/2004 of Anti Corruption Bureau, Jaipur and both the orders have been passed in the same FIR by the same Judge, therefore, both these applications are disposed of by a common order.
(2.) The facts in brief are that on 9th June 2004, two first information reports bearing No. 109/2004 (for short "First FIR") and 110/2004 (for short "second FIR") were registered against accused R. S. Srivastava and others by Anti Corruption Bureau, Jaipur for offences under Sections 7, 8, 13 (l)(a) and 13(l)(d)(2) of the Prevention of Corruption Act, 1988 read with Section 120-B IPC. (i) In the first FIR, it was alleged that on 23-5-2004, an information was received that accused R. S. Srivastava, IAS, who was holding the post of Member, Revenue Board, Rajasthan, Ajmer, had decided a revenue case pending before him, namely, Smt. Kamla Devi v. State on 21-5-2004 against the plaintiff. Later on 9 persons came- from Dholpur and met the Member, Board of Revenue, Mr. R. S. Srivastava, who agreed to decide the case in favour of plaintiff on bribe of Rs.3 lacs. Mr. Suresh Bansal, Ramniwas Lawania, Mahesh and others remained in contact with accused to finalize the deal and other terms as to when and where and to whom the amount of illegal gratification is to be paid. Thereafter, accused suggested to file a review petition and assured that in case payment of Rs.5 lacs is made by 3rd or 4th June, then he will decide the case within 3- 4 days. He also assured that he will grant interim stay order In review petition. It was also agreed that Shri Suresh Bansal, Advocate, resident of Dholpur and Ram Niwas Lawania will make the payment of first installment of Rs.5 lacs. During verification of the facts and investigation thereof, it transpired to the Anti Corruption Bureau that nine persons stayed in one hotel at Jaipur. Thereafter payment of Rs.5 lacs was paid to co-accused Ajay Data at the instance of accused and ultimately the review petition was allowed by accused R. S. Srivastava, Member, Board of Revenue, Rajasthan, Ajmer, on 7-6-2004 itself without pronouncing judgment in open Court. (ii) The second FIR was registered in respect of some other revenue cases bearing Nos. 2001/04, 2002/04 and 2003/04 relating to N. B. C. Unit of Birla Group situated at Jaipur in respect of a land measuring 54 acres. It was alleged that after settling huge amount as bribe or some share in the land, the accused decided the said revenue cases in favour of the concerned party. (iii) The accused R. S. Srivastava was arrested on 10th June, 2004 in second FIR No. 110/04. He was not arrested in the first FIR No. 109/04. The first FIR was relating to land situated at Dholpur and was subject matter of revenue case titled as Smt. Kamla Devi v. State. The second FIR was in respect of another land which was subject matter of other cases and the land in dispute was situated at different places. The co-accused persons in both the FIRs are also different except Mr. Pande, P. A. of main accused.
(3.) Facts relating to accused R. S. Srivastava (i) The accused, while in custody in second FIR, moved an application for anticipatory bail under Section 438 Cr. P. C. before the Special Judge in first FIR on 22nd June, 2004, a copy of which has been placed on record as Annex. 1, wherein the main accused, in para 2, specifically mentioned that he has been arrested in second FIR, but has not been arrested in the first FIR. The Investigating Officer filed written reply for rejection of above application wherein it was mentioned that another co-accused Ajay Data is being searched and will be arrested very soon, thereafter, sufficient evidence will be available in the police diary and prosecution will make an application for taking police custody of accused in first FIR No. 109/04. The aforesaid application was rejected by the Special Judge, vide its order dated 25-6-2004, which is reproduced-as under :- "APP present. Counsel for the accused present, ACB submitted an application, stating that some interrogation was done in the case while the accused was in police custody in the other case 110/04, as per the note incorporated in the case diary of 109/ 04. While some important evidence has been collected, yet much investigation needs to be done to bring about cogent evidence to make the arrest of the accused in this case and move a remand application for transferring the custody of the accused from J. C. to P. C. In view of the above averments, I am not inclined to accept the application of the accused under Section 438 Cr. P. C. Hence it is rejected. Sd/-R. S. Rathore Special Judge (PA), Jaipur" (ii) Thereafter, the accused moved another application on 5-7-2004 under Section 167 Cr.P. C. to the effect that on 10-6-2004, he was arrested in second FIR and during custody in second FIR, he was interrogated in first FIR also but no formal arrest memo was prepared in first FIR. He contended that the said interrogation was custodial interrogation and his custody in second FIR No. 110/04 was also deemed custody in first FIR No. 109/04. He further submitted that a remand for police custody was given only in second FIR for five days on 11-6-2004 and again further remand was given in second FIR, therefore, his continued detention beyond 24 hours, without proper remand, in first FIR (in which he was not arrested) be treated as illegal and he should be set free on suitable bail bonds. The prosecution opposed the said application of the accused under Section 167 Cr. P. C. The Special Judge, after hearing the arguments, vide order dated 7-7-2004, rejected the application of accused moved under Section 167 Cr.P. C. in first FIR. The operative portion of the order is reproduced as under:- "After hearing the above arguments and the inferences drawn from them, as enumerated above, I am in agreement with the correct position of law laid down by the learned counsel for the accused. However the Court cannot become immune to the gravity of the offence and the fact that the lapses/inadvertence of the Investigating Agency should not, in any manner, thwart the fair and proper investigation of the case of corruption of such magnitude. This again would be sabotaging the investigation in its infantile stage and would certainly not serve the larger public interest which, in my humble view, the Court should perceive and be sensitive about it. Therefore, the application of the accused is not accepted." It is relevant to mention that the above order was not challenged by accused. (iii) Subsequently, the accused moved another application under Section 167 Cr. P. C. on 10th August, 04. at 4 p.m. in the first FIR to the effect that he was arrested on 10th June 2004 in second FIR and his custody was a deemed custody in the first FIR also and a period of sixty days has passed from 10th June 2004 and no charge- sheet has been filed in first FIR, therefore, he should be granted bail in terms of Section 167 Cr. P. C. The Special P. P. filed reply to the above application and made a request in writing that the accused has not been taken into custody in first FIR. The accused remained most of the time sick and hospitalized during the custody and investigation in second FIR, therefore, he could not be arrested in first FIR. It was also mentioned that application has been filed at 4.30 p.m. and it was not possible to call Investigating Officer as well as the case diary, therefore, in the interest of justice, a reasonable time should be granted to call the I. O., case diary and for arguments. A copy of this reply was delivered to the learned counsel for the accused after taking his receipt on 10-8-2004 at 5.15 p.m. certified copy of which has been placed on record as Annex. 8. The Special Judge did not grant time to prosecution-to call I. O., police diary or for arguments and allowed application under Section 167(2) Cr. P. C. filed on behalf of accused in first FIR No. 109/04 on the same day and released the main accused on bail in first FIR deeming his custody in this FIR also. (iv) The aforesaid order dated 10th August, 2004 has been impugned by the State of Rajasthan in S. B. Criminal Misc. Cancellation of Bail Application No. 3980/2004.;