Monday, January 30, 2023

Lucknow Bench of Allahabad HC rejects bail application of Gomti River Front Scam accused

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The Lucknow Bench of the Allahabad High Court rejected the bail application to the accused of Gomti River Front Scam in Lucknow.

A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Rajkumar Yadav.

By means of the application, the applicant seeks bail in Criminal Misc Case under Sections 120-B r/w 420, 467, 468, 471 of IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, registered with CBI, Anti Corruption Branch, Lucknow and pending before the learned Special Judge, Anti Corruption CBI, West, Lucknow.

In the case, the FIR was registered by the CBI on the basis of order dated 17.7.2017 of the Government of U.P pertaining to the financial irregularities committed with criminal intent in the work of “Gomti River Channelization Project” and “Gomti River Front Development” by the Irrigation Department.

The State Government asked for further investigation by the CBI in Case Crime under Sections 409, 420, 467, 468, 471, 34 IPC and Sections 7 & 13 of Prevention of Corruption Act, 1988 (PC Act) against the accused persons.

It has also been alleged that on the written complaint of one Ambuj Dwivedi, an FIR was registered by the local police and later on a Judicial Commission headed by Justice Alok Kumar Singh (Retd.) was ordered to conduct an enquiry under the Commission of Inquiry Act. A comprehensive enquiry report has been submitted to the State Government on 16.5.2017 leading to the present FIR.

After investigation, charge-sheet was filed by the CBI on 16.02.2021, u/s 120-B read with 420, 467, 468, 471 IPC and Section 13(2) read with 13(1)(d) of PC Act against the applicant and other co accused persons and further investigation is still pending pertaining to other development works in the aforesaid project.

Nandit Srivastava, Senior Counsel appearing on behalf of the applicant has submitted that the applicant is the junior most employee in the chain and had simply followed the orders of higher authorities. He was only the Junior Assistant/Clerk in the Irrigation Department. He was arrested on 19.11.2020 and the charge sheet was filed on 16.2.2021. Till date cognizance has not been taken in the matter.

Senior Counsel further submitted that the charge-sheet was filed without obtaining sanction for prosecution of the applicant as he is a government servant. Compliance of mandatory provisions of Section 17A of the PC Act has not been carried out by the CBI before initiating the criminal prosecution against the applicant in the case. Sanction for prosecution has been filed in the Court on 15.7.2021 which is after a delay of about five months from the filing of the charge-sheet. There is no allegation of tampering with the evidence against the applicant. The alleged charge-sheet has been filed only to deprive the applicant statutory rights of default bail provided u/s 167 Cr.P.C. There is no prima-facie offence made out against him of being a party in the criminal conspiracy with the main accused, Roop Singh Yadav. The applicant is not named in the FIR.

Senior Counsel has relied upon the judgement of Apex Court in the case of Yashwant Sinha & Others v Central Bureau of Investigation1 , wherein it has been held that no Police Officer is permitted to conduct any enquiry or investigation into any offence committed by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed.

Senior Counsel for the applicant has also submitted that the applicant was not in a position to do any favour or any disfavour to any of the Contractor as he was only the Junior Assistant having no authority to do anything worthwhile.

Senior Counsel for the applicant has also submitted that the eligibility and non-eligibility of the firms/companies in the tender process was to be decided at a later stage by the concerned authorities and the applicant had no role in it. He has then placed much reliance upon the judgement of Apex Court in Dataram Singh Vs State of U.P and another.

Senior Counsel has further stated that there is no likelihood of the applicant tampering with the evidence or influencing any witnesses who are all public servants.

Anurag Kumar Singh, Counsel for the CBI has vehemently opposed the bail prayer of the applicant by contending that the work of “Intercepting Trunk Drain” was awarded to M/s K K Spun Pipe Pvt Ltd, New Delhi despite not meeting out the technical qualification criteria of annual turnover and also did not submit the mandatory certificates on financial fitness to be issued by the District Collector. The bank guarantee used by the L-2 firm M/s Brand Eagles Longian JV was made from the account of L-1 firm M/s K K Spun Pipe Pvt Ltd.

The third party M/s Patel Engineering has categorically denied having taken part in the tender process. The L-2 firm has entered into agreement with M/s K K Spun Pipe Pvt Ltd for participating in tender procedure as such bank guarantee was prepared from the account of M/s K K Spun Pipe Pvt Ltd but later on when the manufacturers unauthorizedly allowed taking part in the tender procedure had submitted its separate bid without informing M/s Brand Eagles Longian JV.

As such there was a cartel between M/s K K Spun Pipe Pvt Ltd and M/s Brand Eagle Longian JV in pursuance of which the bank guarantee of Rs 4.6 crores of the L-2 firm M/s Brand Eagle Longian JV was made from the bank account of L-1 firm M/s K K Spun Pipe Pvt Ltd. The using of bank guarantees of one firm by another proves that the entire Tender process was a sham.

Counsel for the CBI further stated that after investigation, charge-sheet has been filed against the main accused Roop Singh Yadav, Executive Engineer, Raj Kumar Yadav, Junior Assistant (present applicant), Himanshu Gupta, Director of M/s K K Spun Pipe Pvt Ltd, Kavish Gupta, Director of M/s K K Spun Pipe Pvt Ltd and Badri Shrestha, Senior Advisor of M/s Brand Eagles Longjian JV. Further investigation is also going on in respect to other allegations in the instant matter coupled with 11 remaining works.

Singh has also submitted that the applicant had been involved in the said corruption and he had exclusive knowledge of the offence. His name has come up during the course of investigation as he was involved in criminal conspiracy with other co-accused persons.

The applicant himself has written under his signature that tender documents have been sold by him to M/s Patel Engineering Limited. However, M/s Patel Engineering Limited denied having purchased the said tender documents. M/s Patel Engineering Limited had not deposited any earnest money which further confirmed the fact that the company had not submitted the tender documents and its forged documents were used by the applicant in the criminal conspiracy with co-accused Roop Singh Yadav with an intention to pool the tender in favour of the co-accused private persons.

The applicant has wrongly shown the sale of tender documents to M/s Patel Engineering Limited and had arranged the photocopy of the documents of M/s Patel Engineering Limited which was submitted for the work of Diaphragm Wall.

He has further stated that in the case, a tender of Rs 258.69 crore has been given to ineligible company/person which was later on extended to Rs 333 crores.

“The matter pertains to a large scam of Rs1500/- crores. During the relevant period, the applicant was the Junior Assistant/Clerk of the department and prima-facie, it is found that he was also the part and parcel of the chain of corruption having been committed causing a heavy loss to the State Exchequer.

Considering the facts and circumstances of the case, the nature of offence, embezzlement of huge amount, complicity of accused as well as the rival submissions advanced by the counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicant on bail”, the Court observed while rejecting the bail application.

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