J.C. GILHOTRA Vs. UNION TERRITORY, CHANDIGARH

JUDGEMENT

(1.) THIS order of mine shall dispose of bail application filed by Shri J.C. Gilhotra in case F.I.R. No. 1 dated 3.2.1998 registered under Sections 13(1)(a) to (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 read with Sections 406/409/420 and 120-B of the Indian Penal Code registered at Police Station Vigilance Cell Chandigarh. The petitioner earlier made an application under Section 438 Cr.P.C. in the court of learned Special Judge, Chandigarh who vide order dated 24.6.1998 dismissed the bail application for the reasons contained in para 8 of the impugned order after considering the submissions raised by the learned counsel for the parties before him as contained in paras No. 6 and 7 of the said order. In order to appreciate contentions and operative order of the learned Special Judge, I consider my duty to incorporate paras No. 6, 7 and 8 of the impugned order in detail as under :-

(2.) THE brief allegations of this case are that an Income Tax raid was conducted on 20/21.11.1997 on the premises of M/s Sharma Brothers, Sunil Kalia and Shri K.K. Jerath, the Chief Engineer, U.T. Chandigarh (still absconder) inspite of the fact that bail application of Shri Jerath was dismissed by the trial Court, High Court and even by the Supreme Court. A large amount of cash and jewellery was recovered from the residence of K.K. Jerath and others. During the course of raids, two diaries - one from the premises of M/s Sharma Brothers and other from the premises of Sunil Sharma were recovered. A perusal of the above diaries showed that a large amount has been paid to K.K. Jerath and other officers of the Engineering Department as kickbacks. When the diaries were decodified it transpired that a sum of Rs. 52,700/- had been paid to Shri J.C. Gilhotra who at one time was with the Engineering Department, U.T. Chandigarh. Subsequently he was promoted and posted as Chief Engineer, Punjab State Electricity Board, Patiala. Now he has retired from service with effect from 31.3.1998.

(3.) WHILE dealing with the case of anticipatory bail, judicial discretion, of course, has to be exercised by the courts dealing with such sensitive matters because liberty of a person is involved while granting or declining the request of bail. The Hon'ble Supreme Court had laid the stress that in what manner a judicial discretion has to be exercised. It should be left to the judicial experience of the particular court whether it is trial court or it is High Court. That is why invoking of Section 438 Cr.P.C. has always been considered as discretion any matter which, of course, would be exercised according to judicial canons. State represented by the C.B.I. v. Anil Sharma, 1997 Supreme Court Cases (Criminal) 1039 is a case where the Hon'ble Supreme Court has bee pleased to lay down certain guidelines when the provisions of Section 438 Cr.P.C. could be exercised for the benefit of the applicants. The Hon'ble Supreme Court took into consideration various factors such as that it should be seen by the courts that granting of bail to a person may not impede investigation because a particular applicant may be wielding considerable influence. The Court further held that the advantage of custodial interrogation is to elicit truth and more useful information and material. Of course, the Hon'ble Supreme Court further stated that the court has to presume that police officers would conduct the custodial interrogation in a responsible manner without using third degree methods. Ultimately the Hon'ble Supreme Court in para 6 of the judgment held as follows :