Manoj Kumar Soni S/o Late Sh. Narayan Prasad Soni Aged About 52 Years R/o v. State Of Chhattisgarh Through S.H.O, A.C.B./ E.O.W. Raipur, Chhattisgarh
Case Details
1 2025:CGHC:21801 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ORDER RESERVED ON 15.04.2025 ORDER DELIVERED ON 09.05.2025 MCRC No. 2078 of 2025 Manoj Kumar Soni S/o Late Sh. Narayan Prasad Soni Aged About 52 Years R/o 48, Khushi Watika, Amlidih, Raipur, Chhattisgarh.- 492006 ... Applicant(s) versus State Of Chhattisgarh Through S.H.O, A.C.B./ E.O.W. Raipur, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Akshat Gupta, Advocate through VC assisted by Ms. Sameeksha Gupta, Advocate For Respondent/State : Dr.Saurabh Kumar Pandey, Advocate (Hon’ble Shri Justice Arvind Kumar Verma) C A V Order The instant bail application is being preferred by the applicant under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023 on behalf of the applicant seeking regular bail in FIR No. 01/2024 dated 16.01.2024 registered at police station ACB/EOW, Raipur for the 2 offence punishable under Sections 409,120-B IPC read with Sections 11,13(1)9a) and 13(2) of the Prevention of Corruption Act, 1988. 2. Brief facts of the case are that the present applicant, Indian Telecom Service Officer, has ben posted on deputation in the State of Chhattisgarh since 16.06.2014 and when he was posted as Special Secretary in the Secretariat,, Food Civil Supplies and Consumer Protection Department, Govt of Chhattisgarh he was also assigned the additional Charge of Managing Director of the Chhattisgarh State Cooperative Marketing Federation Limited (MARKFED) on 04.06.2023. It is alleged that during the said period the applicant was involved in the
Facts
subject FIR bearing No.01/2024 dated 16.01.2024. 3. The applicant had preferred application dated 17.12.2024 before the learned Special Judge (PC Act), Raipur seeking for regular bail which was dismissed vide order dated 20.12.2024. The applicant was arrested on 4.11.2024 and is in judicial custody in respect of ECIR No. ECIR/RPZO/04/2023 dated 14.10.2023 and thereafter the applicant was remanded to police custody of the respondent ACB/EOW till 18.11.2024 and now he is incarcerated in Central Jail, Raipur. The investigation qua the applicant stands completed and the charge sheet has been filed on 01.02.2025. 4. It is alleged that after dismissal of the bail application by the learned trial court on 20.12.2024, vide order dated 29.01.2025, the Revision petition filed by the applicant in Cr.R. No. 1326/2024 was allowed by setting aside the cognizance order dated 5.10.2024 in the ED’s prosecution complaint. On 01.02.2025, the respondent filed charge sheet under Sections 409 and 120-B IPC read with Section 11, 13(1)(a) 3 and 13(2) of the PC Act, inter alia against the applicant. On the same day, the learned trial court took cognizance of the offences mentioned in the charge sheet wherein it has been specifically stated by the respondent that the application for sanction to prosecute the applicant has been made to the State Government which and has not been granted. The sanction is required and there is no sanction under Section 19 of the Prevention of Corruption Act or Section 197 of the Cr.P.C. authorizing the prosecution of the applicant. The applicant filed Criminal Revision Petition under Section 442 of the BNSS before this Court against the order of cognizance which is pending before this Court. Hence, the applicant has filed this bail application under Section 483 of the BNSS on behalf of the applicant seeking regular bail. 5. Contention of the learned counsel for the applicant is that the applicant has already suffered long incarceration of pretrial custody and the trial has not yet commenced. It has been time and again reiterated by the Apex Court that speedy trial is a facet of the fundamental right to life of an accused under Article 21 of the Constitution of India. He has relied upon the judgment of Manish Sisodia (1) Vs. CBI and ED (2023) SC Online SC 1393 in para 27 citing with approval of the judgments in Satendar Kumar Antil V. Central Bureau of Investigation (2022) 10 SCC 51; Surinder Singh Alias Shingra Singh Vs.State of Punjab (1977) 4 SCC 291; Manish Sisodia V. ED and CBI (3) , (2024) SCC OnLine SC 920 dated 28.08.2024 in SLP (Crl.) No. 5416 of 2024 (para 12). 6. It has been time and again reiterated by the Apex Court that in cases where fundamental right to Speedy Trial of the accused is violated, the State of any other prosecuting agency should not oppose 4 the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of crime. He has relied upon the judgment of Javed Gulam Nabi Shaikh Vs. State of Maharastra, 2024 SCC OnLine SC 1693 (para 19). 7. He further contended that Section 436-A of the Cr.P.C. should not be construed as a mandate that an accused should not be granted bail till he has suffered incarceration for the specific period of half the maximum period of imprisonment. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. He has referred to the judgment of Manish Sisodia 1 (2023) Cc OnLine SC 1393 at para 27 and 29. Under the BNSS, Section 479 has further reduced the period of pre-trial incarceration for eligibility of statutory bail to 1/3rd of the maximum period of imprisonment for first time offenders. Acknowledging this as a beneficial provision, the Apex Court in the matter of Inhuman Conditions in 1382 prisons, Order dated 23.08.2024 in W.P.© No. 406 of 2013, has held that Section 479 BNSS will have retrospective applicability. If the trial gets protracted and the case will not be decided within a foreseeable time, the accused person is entitled for bail. He submits that in several cases, the Apex Court has granted bail to the accused persons solely on the ground of delay in trial coupled with long pre-trial incarceration, despite the alleged gravity of offences and even under statutes which contain special onerous bail conditions for grant of bail. 8.
Legal Reasoning
He further contended that it is well settled that the objection of bail is neither punitive nor preventive. He has referred to the judgment of Manish Sisodia (1) (2023) SCC OnLine SC 1393 at para 29 and Javed Gulam Nabi Shaikh Vs. State of Maharashtra, 2024 SCC 5 OnLine SC 1693 at para 9. The primary purpose of bail in a criminal case is to ensure that the accused will submit to the jurisdiction of the court and be in attendance whenever his presence is required. Deprivation of liberty must be considered punishment, unless it can be required to ensure that an accused person will stand trial when called upon. 9. He submits that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. The consideration has to be made on a case to case basis on the facts. The primary object is to ensure the presence of the accused to stand trial. He has referred to the matter of P.Chidambaram Vs. ED (2020) 13 SCC 791. He submits that the applicant will be prejudiced and prejudged if he is continuously remanded to custody. It is submitted that it is imperative for proper and effective defence of the applicant and as a step to ensure the fair trial of the applicant that he may be granted bail unless there are overwhelming considerations otherwise. He has referred to the judgment of Gurbaksh Singh Sibbia Vs. State of Punjab (1980) 2 SCC 565 at para 27. Similarly, in Manish Sisodia 3, the Apex Court has observed as under: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. 6 It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”. 10. It is submitted by the counsel for the applicant that the applicant has already undergone custody of about 114 days in the subject FIR and both the investigations are being conducted in relation to the same alleged transaction and the allegations, material, witnesses and documents relied upon by the ED in the prosecution complaints filed by it and the prosecution agency in the charge sheet are common. Therefore, the total detention suffered by the applicant for investigation of the same alleged transaction and occurrence exceeds over 9 months. In the instant case, the trial is not likely to commence and the investigation is still going on against other persons, 144 cited witnesses and hundreds of documents have been relied upon running into thousands of page and thus, there is no likelihood of the trial commencing soon. 11. Next contention of the learned counsel for the applicant is that the investigation against the applicant is complete and the charge sheet has been filed therefore there is no necessity for continued incarceration of the applicant. It is submitted that in the subject FIR, the charge sheet has been filed on 01.02.2025 and therefore the applicant is entitled for bail in terms of settled law. He has referred to the order dated 02.09.2024 passed by the Apex Court in SLP (Crl) No. 9817 of 2024 Bibhav Kumar Vs. State of NCT of Delhi at para 4, where bail was granted inter alia on the ground of custody for a period of 100 days. In the judgment dated 27.08.2024 of the Apex Court in SLP) (Crl.) No. 10778 of 2024, Kalvakunta Kavitha Vs. ED in para 10-13 has been 7 granted bail on the ground that the applicant was in custody since 5 months. In yet another decision of Krishnan Subramanian Vs. State NCT of Delhi, 2022 SCC OnLine Del 1384 at para 24, he has been granted bail on the ground that the charge sheet, first supplementary charge sheet and second supplementary charge sheet as well as the fact that other co-accused persons having been enlarged on bail and stand confirmed by the Apex Court. 12. Another contention of the learned counsel for the applicant is that there is no sanction to prosecute the applicant and the detention of the applicant cannot be authorized under Section 167 (2) Cr.P.C. since the charge sheet stands filed. The detention of the applicant cannot be authorized under Section 309(2) Cr.P.C. as there is no sanction under Section 19 of the PC Act or under Section 197 Cr.P.C. He has placed his reliance upon the matter of the Apex Court in Arun Pati Tripathi Vs. Directorate of Enforcement dated 12.02.2025 in Cr.A, No. 725/2025. 13. It is contended that extensive search has been carried out at the premises of the applicant by the IT department and the ED but nothing incriminating has been recovered from the applicant. Despite allegations of serious financial crimes and possession of huge amounts in the form of cash kickbacks from rice millers, no cash amount or any undisclosed assets were recovered during search and seizure proceedings conducted at the residence of the applicant. He submits that the applicant fulfills the triple test for grant of bail. It has been held in catena of judgments including the matter of P. Chidambaram Vs. CBI 2020 13 SCC 337, it has been dealt that three factors or the triple test must be seen/satisfied viz. (i) flight risk (ii) likelihood of tapering with the evidence; and (iii) likelihood of influencing witnesses. The applicant 8 does not have the propensity to evade the process of law. He submits that the applicant has not committed any act directly or indirectly to tamper with any evidence or influencing any witnesses. It is well settled law that mere apprehension of influencing witnesses or tampering with evidence can never be a ground to decline bail to any accused unless there is cogent material. He has referred to the P. Chidambaram Vs. CBI 2020 13 SCC 337 at para 32-33. He submits that the prima facie, the applicant is not guilty of the offences as alleged in the FIR and charge sheet. 14. It is submitted by learned counsel for the applicant that the entire case of prosecution is based on the allegations of extortion and illegal collection of money by the applicant from the rice millers in the State of Chhattisgarh and the learned CJM, while taking cognizance of the offences in the IT complaint declined to take cognizance of the offence of extortion. Even at the time of registration of the subject FIR, on the basis of the ED’s letter under Section 66 o the PMLA, the ACB did not include extortion as an offence and the same was added belatedly at the time of filing of charge sheet. 15. It is the case of the respondent that the applicant had assisted co- accused Roshan Chandrakar in running an alleged extortion racket. The offence of extortion under Sections 383/384 IPC has not been found to be made out prima facie by the competent court and even in the subject FIR no offence was registered. He submits that the applicant was not having the knowledge of the alleged scam and he had neither demanded nor received any unlawful amount from any rice miller. The applicant was not involved in any illegal activity or collection of any bribe amount from the rice millers or any other persons relating to the alleged 9 proceeds of crime. He submits that the alleged material being relied upon by the Prosecuting Agency against the applicant is in the form of Section 161 Cr.P.C. statements which are not admissible in law or under Section 164 Cr.P.C and 50 of the PMLA which cannot be considered at the stage of bail in as much as no opportunity to cross examine is given to the applicant. It is well settled law that the statement of co-accused persons is an extremely weak type of evidence and cannot be treated as substantive evidence against other co-accused persons. Therefore the statements relied upon by the ED to substantiate its allegations against the applicant are inadmissible and does not form the basis for denial of bail to the applicant. He has placed his reliance in the matter of Prem Prakash Vs. ED in SLP (Crl.) No. 5416 of 2024 at para 37; Haricharan Kurmi Vs. State of Bihar, AIR 1964 C 1184 at para 13 and 16 and Parasmal Lodha Vs. Directorate of Enforcement (2017) SCC OnLine Del 8676. 16. He submits that the applicant is suffering from diabetes and hypertension for which he is undergoing treatment at AIIMS Raipur since 2019. He had also undergone a pyloplasty surgery in the year 2002 and is suffering from reduced kidney function congenitally and also suffering from cervical spondylitis. Lastly,he submits that post arrest, the detention of an accused can be authorized only under Section 167(2) Cr.P.C. or Section 309(2) Cr.P.C. and in the present case, the charge sheet has been filed. Section 309(2) Cr.P.C. is not applicable as there is no sanction and the order taking cognizance is bad in law and liable to be set aside. The trial court do not have the power to remand the applicant to judicial custody and continued 10 detention of the applicant is illegal and therefore he is entitled to the sought relief for the reasons submitted above. 17. In reply, learned counsel for the respondent/State submits that the application filed on behalf of the applicant is without merits and deserves to be dismissed. From perusal of the case diary, it has been revealed that sufficient grounds are being shown by the prosecution that the accused/applicant has committed the aforesaid offence and the necessary approval of the State government under Section 17-A of the Act,1988 has been obtained, therefore granting bail to the applicant does not appear to be justified. He submits that while rejecting the bail application, learned trial court has specifically observed that from the prerusal of case diary and remand form, the applicant who was being posted as Managing Director, MARKFED along with other accused, entered into a criminal conspiracy to create a claim on the rice millers by neglecting his official duties and by ignoring the “First in First Out” by keeping the bills of the millers pending and pressurizing them, extorted illegal amount of Rs. 20/- per quintal therefore there are serious allegations of organized economic crime against the applicant and the material available in the case diary shows prima facie involvement of the accused/applicant in the alleged crime and the case is at the stage of investigation therefore the possibility of the accused/applicant influencing the investigation cannot be ruled out if the applicant is granted bail. 18. It is further submitted that at present the challan has been filed before the concerned Special Court on 01.02.2025 under Section 173 (8) of the Code of Criminal Procedure 1973 and further that the investigation is going on in the matter, the possibility of the 11 accused/applicant influencing the investigation and relevant prosecution witnesses cannot be ruled out. 19. Heard learned counsel for the respective parties, perused the record and the documents annexed with utmost circumspection. 20. It is admitted position that the premises where raid was conducted in the residential premises nothing incriminating documents or material was found and seized and a nominal amount of Rs. 1,05,000/-, three gold coins of 10 grams each valued at Rs. 1,81,500/- was seized. 21. In the present case, the applicant is a public servant employed under the Central Government and therefore under Section 197 Cr.P.C. it requires prior prosecution sanction before a court can take cognizance of an offense committed by such individuals, particularly when the offense is alleged to have been committed while they were acting in their official capacity. A Criminal Revision has been filed by the applicant before this Court under Section 438 read with Section 422 of the BNSS, 2023 against the order dated 01.02.2025 passed by the learned Special Judge (PC Act), Raipur by the which cognizance has been taken against the applicant for the offences punishable under Sections 384, 409, 120-B IPC and Sections 11, 13(1)(a) of the Prevention of Corruption Act without the order of prosecution sanction and had subsequently obtained the sanction from the law and legislative department, CG. However, since the petitioner is a Central Government employee, the sanction ought to have been obtained from the parent department for the offence relation to PC Act ie. from the Director, Staff, Government of India, Ministry of Communication, Department of 12 Telecommunication, New Delhi, regarding prosecution sanction against the applicant. 22. The court can not take cognizance of an offence alleged to be committed by the individual while acting in their official duties without the prior sanction of the appropriate government ie. from the parent department from where he has been sent on deputation. There is no prosecution sanction under Section 19 of the Prevention of Corruption Act. 23. It has been held by the Apex Court in the case of Arun Pati Tripathi Vs. State of Chhattisgarh (Criminal Appeal No. 1264 of 2025, (SLP (Crl.) No. 14646 of 2024), Criminal Appeal No. 1265 of 2025 (SLP (Crl.) No. 17645 of 2024) and Criminal Appeal No.1266 of 2025 (SLP (Crl.) NO. 298 of 2025), it has been observed as under: “The appellant is being prosecuted for the various offences punishable under Sections 420,467,468,471 and 120-B of the IPC,1860 and Sections 7 & 12 of the Prevention of Corruption Act, 1988. The appellant is in custody for approximately 8 months. However, to ensure that the investigation is not affected in any manner, we direct that the appellant shall be enlarged on bail on 10th April 2025 subject to appropriate terms and conditions fixed by the concerned Sessions Court.” 24. It is pertinent to mention here that the learned trial court has firstly taken cognizance by the order dated 01.02.2025 in the FIR No. 01/2024 against the applicant which has been challenged before this Court by way of Cr. Rev. No. 325/2025 and this Court has observed that without 13 prosecution sanction order, the concerned trial court has taken cognizance therefore this Court has set aside the order taking cognizance by the trial court. The EOW/ACB has obtained prosecution sanction order on 5th February 2025 from the Law and Legislative Department, Chhattisgarh therefore ACB has filed the prosecution sanction before the learned trial court and the learned trial court has taken further cognizance on 01.02.2025. However, since the petitioner is a Central Government employee, therefore the respondent has already sent a letter to the Director, Staff, Government of India, Ministry of Communication, Department of Telecommunication, New Delhi regarding prosecution sanction against the present petitioner, but has not yet received the prosecution sanction. Therefore, the Apex Court in the matter of Arun Pati Tripathi Vs. Directorate of Enforcement in Cr.A. No. 725 of 2025 (SLP (Crl.) No. 16219 of 2024) dated 12th February 2025, has observed that the custody of the appellant cannot be continued. Similarly, the Apex Court in the matter of Anil Tuteja Vs. Directorate of Enforcement Cr.A. No. 1961 of 2025 (SLP Crl.) No. 3148 of 2025, has observed that the custody of the appellant cannot be continued. 25. After considering the entire facts and circumstances of the case, particularly the long incarceration of the applicant in custody, charge sheet has already been filed and specifically the prosecution sanction has not been obtained by the respondent from the Central Government, therefore, custody of the applicant cannot be continued and this court is of the view that the applicant deserves to be granted regular bail. The 14 concerned trial court shall enlarge the applicant on bail pending the FIR NO. 01/2024 subject to stringent terms and conditions as may be fixed after hearing the ECOW/ACB/respondent. The condition shall include (a) surrender of passport if any (b) furnishing an undertaking on oath to the concerned court that he will regularly and punctually attend the trial court and shall cooperate with the trial court for early disposal of the case and (c) in the event it is found that the applicant is not cooperating with the concerned court for early disposal of the case or commits a breach of any of the conditions of bail, it will be open for the respondent to apply for cancellation of bail before the concerned court. 26. Accordingly, the bail application is allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.09 19:32:40 +0530