The Lucknow Bench of the Allahabad High Court has rejected the anticipatory bail petition of an Adviser for the Gomti River Front Development Project.
The Single-Judge Bench of Justice Dinesh Kumar Singh passed this order while hearing a criminal miscellaneous anticipatory bail application filed by Badri Shrestha.
The application under Section 438 CrPC has been filed by the accused-applicant apprehending his arrest in FIR bearing Case dated 30.11.2017, under Sections 120-B read with 420, 467, 468 and 471 IPC and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences, Police Station CBI/ACB, District Lucknow.
The application has been filed after the trial court by a well-considered order has rejected the bail application of the accused applicant for anticipatory bail vide order dated 11.10.2022.
Initially, on 19.06.2017, an FIR was lodged under Sections 409, 420, 467, 468, 471 and 34 IPC and Sections 7 and 13 of Prevention of Corruption Act at Police Station Gomti Nagar, Lucknow, U.P regarding huge corruption, misappropriation of public funds and large scale irregularities committed by the Government officials in active connivance and criminal conspiracy in implementation of a project, Gomti River Front Development, which was conceived by the then Government involving thousands of crores of rupees of public funds.
The Government appointed a three-member inquiry committee headed by a retired High Court Judge vide order dated 4.4.2017 issued by His Excellency, the Governor of Uttar Pradesh.
The committee was headed by Justice Alok Kumar Singh, Former Judge of this Court, as Chairman and two eminent members, Prof. U.K. Chaudhary, retired from I.I.T, B.H.U, Varanasi, who is an expert in Riverine Engineering, and Professor, A.K Garg, from Faculty of Finance, I.I.M, Lucknow, who were the experts in the committee.
The committee submitted its detailed report dated 16.5.2017 pointing out several gross irregularities, misuse of powers and positions etc by the officers/officials in implementing the said project and causing huge loss to the State Exchequer and misappropriation of public funds by the Government officials in active connivance with private persons.
Initially, the project cost was estimated to be Rs 747.49 crore, which was approved by the Cabinet on 17.3.2015. The cost of the project was, thereafter, revised to Rs 1990.24 crore. However, the Cabinet approved the budget for the said project at Rs 1513.51 crore.
The Central Bureau of Investigation (CBI) registered the FIR as mentioned above and after concluding the investigation in respect of the work and construction of intercepting trunk drain of both banks of Gomti River, has submitted the charge sheet.
It has been alleged that both the firms did not fulfill the eligibility qualifications at the time of submitting the tender and investigation revealed that the name & style of M/s KK Spun Pipes Private Limited had been changed as M/s KK Spun India Limited.
The conditions were relaxed to make M/s KK Spun Pipes Private Limited as eligible and a note was put up on 21.08.2015 by the accused applicant to allow the manufacturers also to participate in the tendering process along with the registered contractors.
The said note was to change eligibility for the conditions of NIT which was already published. The said note was approved by the then Chief Engineer, S.N. Sharma even though he was not authorised to approve any relaxation pertaining to the registration of the contractors in terms of the relevant government orders. Any such relaxation could have been accorded only with the approval of the government. This relaxation in the tender conditions was not even published in any newspaper and only a notice was put up on the notice board of the office of the Irrigation Department.
The CBI further found that after relaxation of tender conditions, three parties, namely, (1) M/s K.K Spun Pipes Private Limited, (2) M/ s Brand Eagle Longjian JV; and (3) M/s Patel Engineering Limited were shown to have purchased the tender forms on 26.08.2015.
All these firms were not registered with the Irrigation Department but tenders were given to them and the tender conditions were relaxed by the aforesaid note in order to facilitate them to participate in the tendering process and award the contract to M/s K.K Spun Pipes Private Limited. It is stated that fake sale of tender documents was made to M/s Patel Engineering Limited on the same day.
The tenders were sold by Raj Kumar Yadav, co-accused, who made an entry “sold by me to M/s Patel Engineering Limited” in his own handwriting under his signatures.
It is alleged that pursuant to criminal conspiracy, Himanshu Gupta, Director, M/s K.K Spun Pipes Private Limited vide his letter dated 26.08.2015 addressed to the Superintending Engineer, XII Circle illegally authorized his representative, Surjeet Srivastava, Company Secretary to purchase the tender documents even though the company was not registered with the Irrigation Department and was not eligible to participate in the tendering process. Similarly, vide his letter dated 25.08.2015, Badri Shreshtha, Senior Adviser of M/s Brand Eagles Longjian JV had illegally authorized his representative, Mr. Shahid to purchase the tender documents even though the company was not registered with the Irrigation Department and was not eligible to participate in the tender.
Allegation against the accused-applicant is that he was one of the main conspirators in securing the work to M/s K.K Spun Pipes Private Limited. The accused-applicant was working as Senior Advisor South Asia Region for M/s Longjian Road & Bridge Limited and also worked as Senior Advisor of M/s Brand Eagles-Longjian JV.
A power of attorney was executed by M/s Longjian Road & Bridge Limited on 5.9.2015 in favour of the accused-applicant authorizing him to be its authorized signatory of the tender documents. Vide a letter dated 25.8.2015, the accused-applicant has authorized one of his representatives, Shahid to purchase the tender documents even though the company was not registered with the Irrigation Department and was not eligible to participate in the tender process.
The Court noted that,
It is also interesting to note that the power of attorney was executed only on 5.9.2015 in favour of the accused-applicant, but he had issued a letter dated 26.8.2015 authorizing Shahid to purchase tender documents for joint venture and, this itself would show that the accused-applicant was actively involved in the criminal conspiracy.
It is also important to note that M/s Brand Eagles-Longjian JV was not registered with the Irrigation Department and had applied for registration in Irrigation Department on 4.9.2015 before the power of attorney was executed in favour of the accused-applicant and the said registration was approved on 7.9.2015 i.e on the date of opening of the tender.
Purnendu Chakravarty, counsel for the accused applicant submits that there is no evidence available against the accused-applicant to have drawn any financial gain or his involvement in the alleged corruption or irregularities allegedly committed by the other accused. He is a freelancer advisor and his working was to advise M/s Brand Eagles-Longjian JV in the tendering process.
He also submitted that the charge sheet has already been filed. The accused applicant was not arrested during the course of investigation and he has answered the summons. Accused-applicant will participate in the trial proceedings and no purpose would be served to take him into custody inasmuch as the investigation is already complete.
He further submitted that there is hardly any chance for the accused-applicant to tamper with the evidence or influence any witness.
On the other hand, Anurag Kumar Singh, counsel for the CBI has submitted that the accused-applicant was actively involved in the criminal conspiracy with accused persons and illegally securing the work by pooling the tender on the basis of forged documents and deprived the Government to get competitive rates and caused huge loss to the Government exchequer to benefit the Government officials and private persons. The very strange thing is that the bank guarantee was prepared by M/s K.K Spun Pipes Private Limited for submitting the tender documents by M/s Brand EaglesLongjian JV and despite not being qualified, the tender was allotted to M/s K.K Spun Pipes Private Limited and, no objection was raised by M/s Brand Eagles-Longjian JV, which itself would show that the cartel was formed.
“Considering the charge sheet and the evidence available against the accused-applicant, I do not find any substance in the submission of the counsel for the accused-applicant that there is no evidence available against the accused-applicant for his involvement in commission of offence.
Looking at the magnitude of the corruption involved in misappropriating the public funds of thousands of crores of rupees, I am of the view that the economic offences of such scale and width could not have been committed without craftily planning and its execution. It is well settled that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. While granting bail, the Court has to keep in mind the nature of accusations, magnitude and gravity of offence and nature of evidence in support of accusations. Economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and are considered to be as grave offences as they affect the economy of the country as a whole.
Considering the allegation against the accused-applicant, evidence available against him, I am of the view that this is not a fit case where the accused-applicant can be enlarged on anticipatory bail. The Court needs to balance the interest of an individual vis-a-vis interest of the society at large. When there are allegations of corruption and misappropriation of funds in active connivance with the politicians in power and the Government officials with private persons and there is evidence and involvement of the accused-applicant in commission of such an offence, he is not entitled to be enlarged on anticipatory bail”, the Court observed while rejecting the anticipatory bail application.