Vijay Kumar Dogra v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 23.11.2023

Pronounced on: 05.12.2023 Vijay Kumar Dogra

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Bipan Ghai, Sr. Advocate with Mr. Nikhil Ghai, Advocate Mr. Sahdev, Advocate and Mr. Kunal Jindia, Advocate for the petitioner. Mr. Rajat Gautam, Addl. AG, Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 28.11.2022 State Vigilance Bureau, Gurugram 13(1)(C), 13(1)(d), 13(2) of PC Act and Sections 409, 418, 420, 467, 468 & 120-B IPC 1.

The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 CrPC seeking anticipatory bail, by filing the present petition on 14.11.2023.

2.

Vide order dated 16.11.2023, this Court had granted interim anticipatory bail to the petitioner subject to compliance of some conditions and the said order is continuing till date.

3.

In paragraph 11 of the bail petition, the accused declares that he has no criminal antecedents.

4.

Facts of the case are being extracted from reply dated 22.11.2023 filed by the Deputy Superintendent of Police, which reads as follows:- "2. "That, brief facts of the case are that, an Enquiry No. 07 dated 10.05.2019, Gurugram was registered after due permission of the State Govt. u/s 17A of PC Act vide letter No. 58/52/2018-1V(1) dated 03.05.2019 conveyed through Additional Chief Secretary, Haryana Government, Vigilance Department and office Endst. No. 7767/1-

2/SVB(H) dated 10.05.2019 of Director General, State Vigilance Bureau, Haryana, Panchkula against petitioner/accused Mukesh Kumar Solanki and Rishi Raj, Director M/s R.R. Foundation Engineering Private Limited.

3. That the petitioner is not entitled to anticipatory bail as he had acted with dishonest intension by way of preparing forged GPA in collation with co accused Amit Kumar and Ravi abrole which is the main document to cause huge loss to the government exchequer. The investigation of the present case is pending and is being conducted fairly, properly, impartially, transparently, meticulously and expeditiously. To unearth the criminal conspiracy, the custodial interrogation of the accused/petitioner Vijay Kumar Dogra is necessary. Therefore, anticipatory bail application of the accused/petitioner u/s 438 Cr.PC may kindly be dismissed in the interest of justice.

4. That the petitioner is not entitled to anticipatory bail as he had acted with dishonest intension by way of preparing forged GPA in collusion with co accused V.K. Goyal which is the main document to cause huge loss to the government exchequer. The investigation of the present case is pending and is being conducted fairly, property, impartially, transparently, meticulously and expeditiously. To unearth the criminal conspiracy, the custodial interrogation of the accused/petitioner u/s 438 CrPC may kindly be dismissed in the interest of justice.

5. That, this Hon'ble High Court has also dismissed the anticipatory bail applications of co-accused Sanjay Kumar on 28.03.2023 in CRM-M-61162 of 2022, co-accused Subhash, Assistant/DSO on 11.01.2023 in CRM-M1060 of 2023 and of co-accused Rishi Raj on 13.02.2023 in CRM-M-45112023.

6. That, during the course of enquiry, it was revealed that M/s CORR. Foundation Engineers Pvt. Ltd. had submitted applications to HUDA Department, Sector 14, Gurugram for participating in open auction of S.C.O. No. 08 and 30, Sector 23/23A, Gurugram. Thereafter, due to highest bid of R.R. Foundation Engineers Pvt. Ltd. S.C.O. No. 08 and 30, Sector 23,23A, Gurugram were allotted to firm on 18.12.1997 and further 10% cost of the total cost was deposited from the above mentioned firm at the spot. Thereafter, 15% amount was to be deposited within one month from the date of issuance of allotrnent letter of HUDA Department. In this regard, HUDA, Gurugrarn had sent registered letter No 284 dated 18.12.1997 to M/s R.R. Foundation Engineers Pvt. Ltd and letter No. 285 dated 18.12.1997 to R.R.

Constructions, but these letters were received back at HUDA office from the postal department with the remarks that "there is no such company existing with this name and style at this address". Whereas even at present, the offices of the above mentioned company is located at the same address. Both the above mentioned companies did not deposit 15% amount within stipulated period. Thereafter, Estate Officer -1, HUDA, Sector-14, Gurugram vide lorder dated 10.04.1998 cancelled the allotment orders of S.C.O. No. 08,13 & 30, Sector 23/23A, Gurugram on 10.04.2018 and forfeited 10% deposited amount. The above mentioned orders/notices were sent at the address of M/s R.R. Foundation Engineers Pvt. Ltd. and R.R. Constructions which they have received. Thereafter, on 15.04.2018 the owner of M/s R.R. Foundation GOV Engineering Pvt. Ltd. Company and R.

R. Constructions had visited the office of HUDA Sector-14, Gurugram and submitted their applications against the cancellation of allotment.

Administrator, HUDA, Gurugram and thereafter, before Chief Administrator, HUDA, Haryana, Panchkula. The appeals/revisions were dismissed upto the level of Commissioner and Secretary, Town and Country Planning Department, Haryana. Revision Petition was also dismissed on 20.02.2000. Thereafter, M/s R.R. Foundation Engineering Pvt. Ltd. had filed a petition on 08.10.2004 before District Consumer Redressal Forum, Gurugram, but the same was also dismissed on 01.08.2008. The Appeal was also dismissed in the State Consumer Dispute Redressal Commission on 30.11.2011. Due to cancellation of the above SCOs Rishi Raj was no more the owner of the above mentioned SCOS.

7. That during the said enquiry it revealed that though Rishi Raj was no more the owner of the above mentioned SCOS then also he in collusion with V.K. Goyal and petitioner Vijay Kumar Dogra got registered G.P.A. of S.C.O. No. 08 and 30 on 21.04.2010 in Ateli, District Mahendergarh in favour of Sh. V.K. Goyal son of R.C. Goyal resident of C.B.H. 11, Narayana, New Delhi in which petitioner was witness. It is pertinent to mention here that the GPA was registered off line though rest of the registration in the office of Tehsildar were executed on line as per procedure. Threfore off line registration of this GOA clearly proves the involvement of the petitioner Due to cancellation of the above SCOs Rishi Raj was no more the owner of the above mentioned SCOS. In this way accused fraudulently prepared forged documents and executed G.P.A. of both the above mentioned S.C.O. in the favour of V.K. goyal.

8. That it is pertinent to mention here that it had also revealed in the enquiry that petitioner Vijay Kumar Dogra visited to Rishi Raj in the year 2000-2001 and introduce him self as a property dealer and discussed about the above SCOs and told him that he will get return the 10% amount of above SCOs which was which was deposited with HUDA at the time of allotment. Petitioner also handed over Rs. 2,50,000/- or 3,00,000/- in advance to the co accused Rishi Raj with condition that he will return the amount onreceiving of checks from HUDA and also taken the documents of above SCOs. He further stated that petitioner had taken signatures of Rishi Raj on some blank papers by stating that he had to move an application in the HUDA office. (The statement of Rishi Raj is annexed as Annexure R-1)

9. That thereafter, in regard to S.C.O. No. 08 and 30, Sector 23/23A, Gurugram, G.P.A. holder Sh. V.K. Goyal has filed C.W.P. No. 12629/2016 and C.W.P. No. 8565 of 2018 in the Hon'ble Punjab and Haryana High Court at Chandigarh for re-allotment of both the above mentioned S.C.O. In this Civil Writ Petitions, HUDA had filed written statement on merits. While the above mentioned matters were pending in the Hon'ble High Court, V.K. Goyal holder of G.P.A. on 07.03.2018 has filed representation before the a Government, which, in general procedure was sent to the office of Chief Administrator, HUDA, Haryana, Panchkula. The Chief Administrator, HUDA, Panchkula has down marked the same to Administrator, HUDA, Panchkula for further action. Thereafter, Sh.

Ram Swaroop Verma, the then Administrator, HUDA, Panchkula had instructed/ordered on the noting that, "If the said fact is correct, the Admn./EO- 1,HSVP, Gurugram may be requested to take necessary action regarding issuance of allotment letter accordingly under intimation to within 03 days positively". By complying the same, Sh.

authority he. Chief Administrator, HUDA, Haryana, Panchkula, had sent the same to Administrator, HUDA, Gurugram and Estate Officer-1, HUDA, Gurugram vide letter No. 122448-49 dated 15.06.2018, in which he instructed to take necessary action after verifying the facts within three days and sent the report to this office. On 20.07.2018 again an E-Mail was sent to Administrator, Huda, Gurugram and it was directed to send the report after verification in 2 days. Sh. Ram Swarup Verma, I.A.S., the then Administrator, HUDA without the permission of his senior officer 1.e. Chief Administrator, HUDA, Haryana, Panchkula, issued guidelines in the above mentioned Sh.

noting Bharat Bhushan Taneja, (Superintendent) in compliance to the instructions mentioned in the noting, without bringing into the notice of Chief Administrator, HUDA, has issued letter to Administrator HUDA, Estate Officer-1 at his own level. By doing so, he has violated the Rules of HUDA. Thereafter, co accused Mukesh Kumar Solanki the then Estate Officer-1, HUDA, Sector-14, Gurugram has issued re-allotment letters to M/s R.R. Foundation Pvt. Ltd. vide his office letter No. 739 dated 22.06.2018 with regard to S.C.O. No. 30 and vide letter No. 740 dated 22.06.2018 with regard to S.C.O. No. 08, Sector 23/23A, Gurugram. Whereas, as per rules, it was necessary that Sh. Mukesh Kumar Solanki, Estate Officer-1, HUDA, Gurugram prior to re-allotment of S.C.O. No.

08 and 30 in favour of the firm, should verify complete facts and get permission/approval from his senior officers. But the aforesaid officer by abusing his official position and violating the rules, had allotted both the above mentioned S.C.O., after 21 years on the rate and cost of the year 1997 to gave the undue advantage to the firm by causing loss to the government exchequer.

10. That, whereas, the then Administrator, HUDA, Gurugram had resumed the above SCO's, hence, the Estate Officer while preparing his report, had to give his comments after giving reference to these facts, but the above mentioned officers have not done so. Thereafter, V. K Goyal withdraw the above mentioned CWP's on the ground that above said SCO's have been re-allotted. When the copy of orders passed by the Hon'ble High Court was received in the office of the Chief Administrator, HUDA, Haryana, Panchkula, the said office sought comments from the office of the Administrator, HUDA, Gurugram and came to know about the allotment letters of S.C.O. No.

08, 30 and 13, Sector 23/23A, Gurugram issued by co accused Mukesh Kumar Solanki the then Estate Officer by ignoring the rules of allotment and thus misused his post and power in connivance with other accused i.e. the petitioner. Co accused Mukesh Kumar Solanki did not attend his office for two days, hence, the additional charge of Estate Officer-1, HUDA, Gurugram was handed over to Sh. Bharat BhushanGogia Estate Officer-2, HUDA, Gurugram, who vide letter No. 349 dated 30.08.2018 has cancelled the re- allotment order of SCO No. 30 Sector 23/23A, Gurugram and vide letter No. 350 dated 30.08.2018 has cancelled the order of re-allotment of SCO No. 08, Sector 23/23A, Gurugram.

Co accused Mukesh Kumar Solanki, Estate Officer-1, HUDA, Gurugram, co accused Sajjan Singh, the then Section Officer, Co accused Subhash Chand, Deputy Superintendent, Sh. Sanjay Kumar, Clerk/Record Keeper in connivance with the owner of above mentioned firm/G.P.A Holder V.K. Goyal in connection with the above mentioned S.C.O., despite dismissal of appeals/revisions, without Intimating true and complete facts to the senior officers, re- allotted the said SCO's on the rate of 1997 and thus caused undue loss to the Government exchequer and undue advantage to the said firm.

the accused persons, it was recommended to register a case under Section 409, 418, 420, 467, 468, 120-B 1.P.C. and 7(C) P.C. Act against Sh. Mukesh Kumar Solanki, Estate Officer-1, HUDA, Gurugram, Sh. Sajjan Singh, then Section Officer, Sh. Subhash Chand, Deputy Superintendent (Office), Sh. Sanjay Kumar, Clerk/Record Keeper, Rishi Raj owner of above mentioned firm, V.K. Goyal G.P.A. Holder and others and thereafter, Government approved the same and this Case FIR 43 dated 28.11.2023 was registered under section 409,418,420,467,468,120-B IPC and 13(1), 13(1)(d) r/w 13(2) P.C. Act at Police Station, State Vigilance Bureau now Anti Corruption Bureau, Gurugram.

5.

Mr. Bipan Ghai, Sr. Advocate, argued that the petitioner is only a witness to the general power of attorney and as such he was not at all beneficiary, however no loss has been caused because allotment was cancelled. In addition to that he seeks bail on parity with co-accused Sajjan Singh Yadav and Mukesh Kumar. Petitioner's counsel also referred to the grounds of the bail petition and seeks bail on such grounds, in addition to the arguments captioned above.

6.

On the other hand, State counsel argued that the petitioner is not entitled to bail on parity for the reason that Co-ordinate Bench of this Court had granted bail to Sajjan Singh Yadav, who was Section Officer and was given additional charge of Accountant and in that capacity, he had signed revenue documents regarding allotment and he did not play any role in the entire process of the allotment prior to 07.06.2018. 7.

Perusal of the common order dated 28.03.2023 passed in CRM-M-61162-2022 and connected case CRM-M-7872-2023, reveals that Coordinate Bench of this Court had granted bail to Sajjan Singh Yadav on the reason of his role but had dismissed the bail of Sanjay Kumar, who was posted as Clerk. Since Sajjan Yadav was granted bail for the reason that his role is not at all similar to that of Sajjan Kumar Yadav and the present petitioner is not entitled to bail on parity with Sajjan Singh Yadav as petitioner's role is different.

8.

Regarding bail on parity with co-accused Mukesh to whom Coordinate Bench of this Court had granted bail vide order dated 07.06.2023 passed in CRM-M-29871-2023. The said order was interim order and this Court cannot rely upon an interim order to decide a case finally.

9.

Analysis of the investigation conducted till date and the fact that anticipatory bail filed by one of the co-accused-Sanjay Kumar, State counsel submits that Coordinate Bench of this Court had dismissed the bail of Sanjay Kumar who was a clerk and he had challenged the dismissal order in the Supreme Court of India and vide order dated 28.04.2023 passed in SLP-5236-2023, Supreme Court had dismissed the said anticipatory bail. He further submits that the petitioner's role is much more graver than

that of Sanjay Kumar and this Court must dismiss the bail of the petitioner. Analysis of the evidence collected upto date, the nature of allegations and role of the petitioner would lead to the following inference.

10.

It has come in the evidence that after cancellation of SCO's for non-deposit of 15% amount by one Rishi Raj who was owner of RR Foundation Private Limited. Even the said Rishi Raj received refund from HUDA which he deposited initially. The said Rishi Raj had executed the General Power of Attorney. In the said power of attorney the petitioner purposely showed himself as a witness. Furthermore in the said power of attorney, it was intentionally mentioned that Rishi Raj was owner of SCO and had taken possession but reality is that the allotment of R.R. Foundation has already stood cancelled. The investigation further revealed that Rishi Raj had received a sum of RS.7,80,000/- and co-accused Mukesh Solanki had received bribe of Rs. 2,00,000/-, Sanjay Kumar-Clerk had received bribe of Rs.75,000/-.

The investigation further points out that in fact Rishi Raj had never gone to Mahendergarh for executing his general power of attorney and in fact the petitioner identified a impersonated as Rishi Raj and he himself became witness on forged general power of attorney in Mahendergarh. The investigation further reveals that modus operandi opted by the petitioner was that the petitioner would take half of the amount from Rishi Raj and subsequently handed over Rs.5.5 lacs to Rishi Raj and convinced him to handover documents of SCO Nos.8-30. The investigation further point out that the petitioner got some signatures of Rishi Raj on blank papers. Perusal of the aforesaid investigation points out that iota of re-allocation by taking bribe is planned by the petitioner and he is one of the main accused.

Custodial investigation is required to find out that in fact which person had impersonated as Rishi Raj. Considering the fact that bail petition filed by Sajay Kumar, who had main role and was a clerk, was dismissed by the trial Court as well as by this Court and the SLP filed by him was also dismissed by the Supreme Court, as such, how this Court can over-reach the orders passed by the Hon'ble Supreme Court which were passed against the coaccused, who was at a lesser footing. 11.

Be that as it may and evidence collected so far, custodial interrogation is required. An analysis of the allegations and evidence collected does not warrant the grant of bail to the petitioner.

12.

In State of Gujarat v. Mohanlal Jitamalji Porwal (1987) 2 SCC 364, Supreme Court holds, [5]. ....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal

profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....."

13.

In State rep. by CBI v. Anil Sharma, (1997) 7 SCC 187, Supreme Court holds, [6]. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favourable order under Section 438 of the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual.

The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders. 14.

In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305].

15.

In Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, Supreme Court holds, [34]. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

[35]. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses

being tampered with, the larger interests of the public/State and other similar considerations.

16.

In P. Chidambaram v. Directorate of Enforcement, 2019 9 SCC 24, Supreme Court holds, [70]. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C., 1973 is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.

17.

In Central Bureau of Investigation v. Santosh Karnani, Cr.A 1148 of 2023, dated 17-04- 2023, Supreme Court, in an FIR registered under sections under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988, holds, [24]. The time−tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences.

Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature.

[31]. The nature and gravity of the alleged offence should have been kept in mind by the High Court. Corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious.

18. In the background of the allegations and the light of the judicial precedents mentioned above in the facts and circumstances peculiar to this case, the petitioner fails to make a case for anticipatory bail.

19. Any observation made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to these comments.

Petition dismissed. Interim orders stand vacated. All pending applications, if any, also stand disposed.

(ANOOP CHITKARA) JUDGE 05.12.2023 anju rani Whether speaking/reasoned:

Yes Whether reportable:

No.