Chattisgarh High Court
Anil Tuteja vs Central Bureau Of Investigation on 15 May, 2026
1
2026:CGHC:23372
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MCRCA No. 468 of 2026
Order reserved on 27/04/2026
Order delivered on 15/05/2026
1 - Anil Tuteja S/o Late H. L Tuteja Aged About 62 Years R/o House No. 35 /
1396, Beside Farishta Nursing Home, Katora Talab, Civil Lines, District :
Raipur, Chhattisgarh
... Applicant(s)
versus
1 - Central Bureau Of Investigation Through Superintendent Of Police, C B I,
A C - I, New Delhi
... Non-applicant(s)
For Applicant(s) : Mr. Arshdeep Singh Khurana, Advocate (through
VC) assisted by Mr. Shashank Kumar Mishra and
Mr. Ankush Borkar, Advocate.
For Non-applicant(s) : Mr. Vaibhav A. Goverdhan, Advocate.
Hon'ble Shri Justice Ravindra Kumar Agrawal, J.
C.A.V. Order
1. This is the First Anticipatory bail application of the applicant Anil Tuteja,
under Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023,
apprehending his arrest in the offence of Crime Number
RC2162025A0006 dated 16-04-2025, registered at Central Bureau of
Investigation, New Delhi, (hereinafter called as “CBI”) for the offence
punishable under sections 182, 211, 193, 195-A, 166-A, 120-B of the
Digitally signed by
ALOK SHARMA
Date: 2026.05.21
11:41:24 +0530
2
IPC, Section 7, 7A, 8 and 13(2) of the Prevention of Corruption Act,
1988 (as amended in the year 2018).
2. The instant anticipatory bail application is filed by the applicant directly
to this Court as per the direction given by the Hon’ble Supreme Court
by its order dated 09-03-2026, passed in Special Leave to Appeal (Crl.)
No. 19892 of 2025, whereby the Hon’ble Supreme Court granted
liberty to the applicant to approach this Court for grant of
regular/anticipatory bail. As the case may be.
3. Brief facts of the case are that on 12.02.2015, the Anti-Corruption
Bureau/ Economic Offence Wing, Raipur (in short “ACB/EOW”),
registered an FIR of Crime No. 09/2015, against certain government
officials of Nagarik Apurti Nigam, Chhattisgarh, Raipur (hereinafter
called as “NAN”) who were working in various districts at that time. The
offence was registered under Section 109, 120-B of the IPC, Section
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The
ACB/EOW filed charge sheet on 06-06-2015 in the NAN FIR, for the
offence under Section 109, 120-B and 420 of the IPC, Section 11,
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The
applicant was not named in the charge sheet submitted by the
ACB/EOW. On 05-12-2018, the ACB/EOW filed a supplementary
charge sheet in the said NAN FIR, naming the applicant, vide charge
sheet No. 26A/2015.
4. On 09-01-2019, the Enforcement Directorate (hereinafter called as
“ED”) registered the ECIR/RPSZO/01/2019 under the Prevention of
Money Laundering Act, 2002 (in short “PMLA 2002”), in which the
applicant was an accused. In the said ECIR registered by the ED, the
applicant was granted anticipatory bail by this Court vide order dated
3
29.04.2019, passed in MCrCA No. 1679/2018, on the ground that there
is no direct evidence against the applicant. Thereafter, between the
period of 27.02.2020 and 01.03.2020, the income tax department
searched and seized the electronic devices from the beauty salon of
the applicant’s wife and the residential premises of the applicant. Vide
order dated 18.03.2020, the applicant was granted interim protection
from arrest in NAN ECIR by this Court, in an application filed under
Section 438 of the Cr.P.C. The application of the applicant under
Section 438 of the Cr.P.C. was finally allowed on 14.08.2020, in MCrCA
No. 469/2020. Against the grant of anticipatory bail to the applicant, the
ED has filed the SLP (Crl.) No. 6323-24/2020 before the Hon’ble
Supreme Court. The said SLP was listed before the Hon’ble Supreme
Court on 09.07.2024, and time was extended to file an affidavit by the
ED as they have pleaded that the applicant misused the anticipatory
bail granted to him, and thereafter, the affidavit was filed on
25.09.2024. In the said affidavit, four scams, i.e. Custom Rice Milling
Scam, Coal Scam, Mahadev Scam and DMF Scam, were alleged. Out
of these four scams, the applicant was granted bail in two scams, i.e.
Custom Rice Milling and DMF Scam.
5. Thereafter, on the WhatsApp chats of the mobile phone of the applicant
during the search by the Income Tax department, the ED sought
cancellation of the anticipatory bail granted to him in NAN ECIR. The
ACB/EOW registered another FIR against the applicant Anil Tuteja and
other accused persons on 04.11.2024, vide Crime No. 49/2024, for the
offences under Sections 7, 7A, 8 and 13(2) of the Prevention of
Corruption Act, 1988, Sections 182, 211, 193, 195A, 166A and 120-B of
the IPC. This FIR was transferred to CBI by the State Government of
4
Chhattisgarh, in exercise of powers under Section 6 of the Delhi Police
Establishment Act, 1946. On 16.04.2025, the CBI registered the Crime
No. RC2162025A0006 under Sections 7, 7A, 8 and 13(2) of the
Prevention of Corruption Act, 1988, Sections 182, 211, 193, 195A,
6. Since various FIRs have been registered by the State Police, ED,
ACB/EOW, Raipur, the applicant approached the Hon’ble Supreme
Court by filing SLP (Crl.) No. 19892/2025 claiming protection against
any further arrest or coercive action in connection with various FIRs,
including the FIR of Crime No. RC2162025A0006 registered by the
CBI, under Sections 7, 7A, 8 and 13(2) of the Prevention of Corruption
Act, 1988, Sections 182, 211, 193, 195A, 166A and 120-B of the IPC.
In the SLP (Crl.) No. 19892/2025, the Hon’ble Supreme Court passed
an order on 09-03-2026 by which the SLP is disposed of with liberty to
the applicant to approach the High Court for the grant of
regular/anticipatory bail, as the case may be. Hence, this anticipatory
bail application was directly filed before this Court.
7. Learned counsel for the applicant would submit that the applicant is a
retired IAS officer and served 34 years as a Civil Servant in the State of
Chhattisgarh. He retired from the post of Joint Secretary, Department
of Commerce and Industries, Chhattisgarh, in May 2023. On the
behest of the ruling party, numerous FIRs have been registered against
the applicant by local police, ED, ACB/EOW and CBI. For the last 10
years, he has been facing litigation initiated by different investigation
agencies. He would further argue that the investigating agencies,
having failed to justify indefinite custody in any single case, have
resorted to successive and overlapping arrests by reviving stale
5
allegations pertaining to alleged scams dating back to the period 2019-
2023, including the Custom Rice Milling Scam, Coal Scam, Mahadev
Online Betting Scam and DMF Scam, solely with the object of
perpetuating the Applicant’s incarceration. It is contended that,
although these FIRs were registered as far back as January, 2024,
active steps for arrest were initiated only after a lapse of nearly 1.5 to 2
years and significantly at stages when the Applicant was on the verge
of securing bail in previously instituted cases, thereby demonstrating a
deliberate attempt to “evergreen” custody. He would further submit that
the present FIR came to the knowledge of the applicant only when the
State of Chhattisgarh filed its affidavit before the Hon’ble Supreme
Court on 06.11.2024 in SLP (Crl.) No. 6323/2020. In the said FIR of
Crime No. RC2162025A0006 registered by the CBI, the co-accused
S.C. Verma, has been granted anticipatory bail vide order dated 28-02-
2025, passed in SLP (Crl.) No. 2400/2025. He would also submit that
the investigation of the WhatsApp chats FIR (Crime No. 49/2024
registered by ACB/EOW) was transferred to the CBI in December
2024, whereas the CBI registered the offence on 16-04-2025. Just
before the day, the applicant was granted bail by the Hon’ble Supreme
Court in ECIR/RPZO/04/2024 (Liquor Scam Case).
8. Considering the various FIRs registered by the State Police, ED,
ACB/EOW, Raipur, the applicant approached the Hon’ble Supreme
Court by filing SLP (Crl.) No. 19892/2025 claiming protection against
any further arrest or coercive action in connection with various FIRs,
including the FIR of Crime No. RC2162025A0006 registered by the
CBI, under Sections 7, 7A, 8 and 13(2) of the Prevention of Corruption
Act, 1988, Sections 182, 211, 193, 195A, 166A and 120-B of the IPC.
6
In the SLP (Crl.) No. 19892/2025, the Hon’ble Supreme Court passed
an order on 09-03-2026 by which the SLP is disposed of with liberty to
the applicant to approach the High Court for the grant of
regular/anticipatory bail, as the case may be. Hence, this anticipatory
bail application was directly filed before this Court.
9. He would further submit that in the present case, false implication is
founded upon conjectures, assumptions and politically motivated
allegations, without there being any legally admissible material
connecting the Applicant with the alleged offences. Even a bare
reading of the FIR would demonstrate that no specific overt act has
been attributed to the Applicant, and the allegations are vague,
omnibus and speculative in nature. It has been submitted that the FIR
merely alleges that the Applicant and one Alok Shukla were “powerful
officers” who allegedly exercised influence over appointments and
transfers in the State of Chhattisgarh; however, no particulars
whatsoever have been furnished regarding any illegal act, unlawful
gain, abuse of official position or specific transaction attributable to the
Applicant. It has further been argued that the allegation regarding
conspiracy with the then Advocate General is wholly baseless and
inherently improbable since the Applicant had already been granted
anticipatory bail in the NAN case vide order dated 29.04.2019,
whereas the then Advocate General was appointed only on
01.06.2019, i.e., nearly one and a half months thereafter. Thus, the
very foundation of the allegation stands falsified from the admitted
dates and circumstances on record. It has also been argued that the
said anticipatory bail order was never challenged by the investigating
agency, and no judicial forum has ever recorded any adverse
7
observation regarding the grant of such bail. Learned counsel further
submitted that merely availing legal remedies available under law,
including seeking anticipatory bail in proceedings initiated by the
Directorate of Enforcement in ECIR No. RPZO/01/2019 cannot
constitute a criminal conspiracy or illegal act.
10. It has further been argued that the allegation regarding influencing
witnesses in Crime No. 9/2015 (NAN Case) is entirely unsupported by
any material. Learned counsel submitted that the charge-sheet in the
NAN case had already been filed in June 2015, and by the time the
applicant was arrayed as an accused through a supplementary charge-
sheet dated 05.12.2018, more than 50 prosecution witnesses had
already been examined before the learned Special Court, and several
witnesses had already turned hostile before the implication of the
applicant. It has been specifically contended that neither the FIR nor
the case diary discloses the name of any witness who was allegedly
influenced by the applicant, nor has any such witness stated before the
investigating agency that the applicant ever attempted to contact,
threaten or induce him directly or indirectly. It has also been submitted
that there is absolutely no material to show that the applicant either
accepted any bribe, paid any illegal gratification to a public servant or
induced any person to fabricate evidence or make false statements.
11. Learned counsel for the applicant further argued that the said chats
were allegedly extracted from mobile devices purportedly seized during
the Income Tax raids conducted in February 2020; however, the very
process of seizure, preservation and extraction of electronic data
suffers from glaring illegalities and serious procedural lapses. Learned
counsel submitted that the search warrant itself was not issued in the
8
name of the applicant and therefore the seizure of his personal digital
devices was without lawful authority. It was further argued that,
astonishingly, the alleged data extraction onto a hard disk was carried
out on 28.02.2020, whereas the devices themselves were shown to
have been formally seized only on 29.02.2020, thereby rendering the
entire process inherently suspicious and suggestive of possible
tampering and planting of fabricated material. Learned counsel further
contended that mandatory safeguards governing electronic evidence,
including compliance with Section 65B of the Indian Evidence Act and
recording of hash values, were not followed in respect of the Redmi
(MI) mobile phone allegedly belonging to the applicant, from which
crucial chats are now sought to be relied upon. It has been argued that
hash values constitute the digital fingerprint of an electronic device and
any alteration therein completely undermines the authenticity and
integrity of the electronic record. Non-recording or alteration of hash
values renders the alleged electronic material legally suspect and
inadmissible. Learned counsel further pointed out that the hash values
of the seized devices had materially changed over time, clearly
demonstrating that the devices were accessed or altered after seizure,
thereby completely breaking the chain of custody and destroying the
sanctity of the alleged electronic evidence. It was also submitted that
there are serious discrepancies regarding the identity of the devices
themselves, since the device allegedly seized under the Panchnama
and the device from which chats were allegedly extracted are
described as different models without any IMEI correlation.
12. Learned counsel for the applicant further argued that the entire case of
the prosecution rests substantially upon certain WhatsApp chats, which
9
by themselves do not constitute substantive evidence in the eyes of the
law unless duly authenticated and corroborated by independent
material. Reliance has been placed upon settled judicial principles laid
down by the Hon’ble Supreme Court and various High Courts to
contend that electronic communications, particularly WhatsApp chats,
are inherently susceptible to manipulation and subjective interpretation
and cannot be made the sole basis for depriving a person of liberty. It
has been submitted that no direct or circumstantial evidence has been
collected by the investigating agency to connect the Applicant with the
alleged offences apart from such chats. It has also been emphasized
that despite the allegations levelled against the Applicant, he has
admittedly not been interrogated by either the ACB/EOW or the CBI to
date, which itself clearly demonstrates that custodial interrogation is
neither necessary nor warranted. Learned counsel lastly submitted that
even in the reply filed by the CBI before the Hon’ble Supreme Court in
SLP (Crl.) No. 19892/2025, no categorical assertion has been made
that custodial interrogation of the Applicant is required. On the strength
of the aforesaid submissions and parity with respect to the grant of
anticipatory bail to the then Advocate General by the Hon’ble Supreme
Court, it has been prayed that the Applicant, being a permanent
resident, having deep roots in society, and there being no possibility of
absconding or tampering with evidence, deserves to be enlarged on
anticipatory bail.
13. Learned counsel appearing for the CBI opposed the bail application
and submitted that the allegations against the Applicant are grave and
disclose a deep-rooted criminal conspiracy involving abuse of official
position, interference with investigation and manipulation of judicial
10
proceedings. It is argued that the Government of Chhattisgarh, upon
finding the matter to be of serious public importance, had
recommended investigation by the Central Bureau of Investigation and
accordingly granted consent under Section 6 of the Delhi Special
Police Establishment Act vide Notifications dated 02.12.2024 and
06.02.2025, pursuant to which the Government of India, Department of
Personnel & Training, extended the jurisdiction of the DSPE to the
State of Chhattisgarh vide Notification dated 08.04.2025.
Consequently, FIR No.49/2024 registered at Police Station State
Economic Offences Investigation Bureau, Chhattisgarh was re-
registered by the CBI as RC2162025A0006 dated 16.04.2025 for
offences punishable under Sections 120-B, 166A, 182, 193, 195A and
211 of the IPC along with Sections 7, 7A, 8 and 13(2) of the Prevention
of Corruption Act, 1988 against the present Applicant Anil Tuteja, Alok
Shukla and Satish Chandra Verma, the then Advocate General of the
State. The FIR reveals that the accused persons, while holding high
public offices, abused their official positions to influence proceedings
arising out of FIR No.09/2015 (NAN Case) and attempted to obstruct
and frustrate proceedings initiated by the Directorate of Enforcement in
ECIR/RPSZO/01/2019. It is further submitted that digital evidence
seized by the Income Tax Department during search proceedings
under Section 132(1) of the Income Tax Act prima facie discloses
continuous interaction of the accused persons with constitutional
authorities and senior bureaucrats with the object of influencing
pending proceedings and securing undue advantage in criminal cases
pending against them.
11
14. Learned counsel for the CBI further submitted that the investigation has
revealed that during the years 2019 and 2020, the Applicant and co-
accused Alok Shukla, while serving as public servants in the
Government of Chhattisgarh, entered into a criminal conspiracy and
extended undue and inappropriate benefits to Satish Chandra Verma,
the then Advocate General, with the intention of influencing the
discharge of his public duties in an improper manner. It has been
alleged that departmental and procedural records relating to senior
officers posted in the Economic Offences Wing were manipulated, and
official responses proposed to be filed before the Hon’ble High Court in
connection with FIR No.09/2015 were altered to favour the accused
persons and facilitate the grant of anticipatory bail in the Enforcement
Directorate proceedings. The prosecution further alleged that attempts
were also made to influence witnesses connected with the NAN case
to change their statements. Learned counsel submitted that prior
approval under Section 17-A of the Prevention of Corruption Act had
already been obtained by the EOW/ACB before registration of the FIR,
and therefore, the investigation is fully in accordance with law. It was
further contended that the investigation is presently at a crucial stage;
searches have already been conducted at the residential premises of
the Applicant and co-accused after obtaining lawful search warrants,
incriminating documents have been seized, and several material
witnesses are yet to be examined.
15. It is further submitted that the present case has been registered strictly
in accordance with law after due approval and based on material
received from the ED under Section 66 of the PMLA 2002. It was
contended that upon analysis of the documents and digital material
12
received from the ED, the ACB/EOW found prima facie commission of
cognizable offences against the Applicant, Alok Shukla and Satish
Chandra Verma, was registered and thereafter re-registered by the CBI
as RC2162025A0006 dated 16.04.2025 after obtaining the requisite
consent under Sections 5 and 6 of the DSPE Act. Learned counsel
submitted that all statutory procedures and legal formalities, including
prior approval under Section 17-A of the Prevention of Corruption Act,
were duly complied with, and there is neither any mala fide intention
nor abuse of process as alleged by the Applicant. It was further argued
that the challenge raised by the applicant regarding admissibility or
reliability of evidence pertains to the probative value of material
collected during investigation, which can only be examined during trial
and not at the stage of anticipatory bail. The respondent further denied
allegations of harassment, arbitrariness and “evergreening of arrest”,
contending that each criminal case against the applicant is based on
separate and independent material requiring independent investigation.
It was also submitted that the liberty granted by the Hon’ble Supreme
Court in SLP (Crl.) No.19892/2025 merely permitted the Applicant to
approach this Court and did not confer any protection from arrest or
entitlement to anticipatory bail. Learned counsel emphasized that the
investigation is still in progress, searches have been lawfully conducted
after obtaining warrants from the competent Court, and if custodial
interrogation becomes necessary, the CBI shall proceed strictly in
accordance with law. Reliance was also placed upon the decision of
the Hon’ble Supreme Court in Devinder Kumar Bansal v. State of
Punjab (SLP Crl. No. 3247/2025, decided on 03.03.2025) to contend
that anticipatory bail in corruption cases should be granted only in
13
exceptional circumstances and that the grant of protection at this stage
may seriously prejudice and frustrate the ongoing investigation.
According to the CBI, considering the nature and gravity of allegations,
the influential position previously held by the applicant and the
possibility of influencing witnesses or tampering with evidence, no case
for the grant of bail is made out at this stage.
16. I have heard learned counsel for the parties, and have gone through
the material annexed with the bail application.
17. Having heard learned counsel for the parties at length and upon
perusal of the material available in the case diary, this Court finds that
the allegations levelled against the applicant pertain to a serious and
grave nature of offences involving alleged abuse of official position,
interference in investigation and judicial proceedings, manipulation of
official records and influencing of witnesses connected with FIR
No.09/2015 (NAN Case) and proceedings initiated by the Directorate of
Enforcement under the PMLA, 2002. Prima facie material collected
during the investigation indicates that the applicant, while serving as a
senior public servant in the State of Chhattisgarh, was allegedly in
continuous contact with co-accused persons and other officials with the
object of securing undue advantage in pending criminal proceedings.
The record further reflects that the FIR initially registered by the
ACB/EOW as Crime No.49/2024 was transferred to the CBI after due
consent of the State Government under Section 6 of the DSPE Act and
subsequent notification issued by the Central Government under
Section 5 of the DSPE Act. At this stage, the contention of the applicant
regarding mala fide intention, political vendetta and abuse of process
cannot be conclusively examined, particularly when the investigation is
14
still in progress and the investigating agency claims to have collected
incriminating material against the applicant.
18. So far as the contention raised by the applicant regarding the legality,
admissibility and alleged tampering of WhatsApp chats and electronic
evidence is concerned, this Court is of the considered view that such
issues relate to the evidentiary value, authenticity and appreciation of
material collected during investigation, which are matters to be
adjudicated upon during the course of trial after evidence is led by the
respective parties. At the stage of consideration of anticipatory bail, this
Court is not expected to conduct a detailed examination of the
probative value of the electronic evidence or record conclusive findings
regarding compliance with Section 65-B of the Indian Evidence Act,
preservation of hash values or alleged discrepancies in the chain of
custody. These are disputed questions of fact requiring a detailed
appreciation of evidence and expert examination, which cannot be
conclusively determined in proceedings under Section 482 of the
BNSS. Similarly, the plea of parity raised by the applicant based on
anticipatory bail granted to co-accused Satish Chandra Verma also
does not advance the case of the applicant since the role attributed to
the present applicant stands on a different footing, considering his
position as a senior administrative officer and the allegations
specifically attributed to him in the FIR and case diary material.
19. The record further reflects that the investigation is presently at a crucial
stage. Searches have already been conducted pursuant to lawful
warrants, and incriminating documents are stated to have been seized
by the investigating agency. The prosecution has specifically
contended that several material witnesses are yet to be examined and
15
consequential investigative steps are still required to be undertaken.
Considering the influential position previously held by the applicant in
the State administration, the apprehension expressed by the
prosecution regarding possible interference with the investigation or
influence over witnesses cannot be said to be wholly unfounded at this
stage. The Hon’ble Supreme Court in Devinder Kumar Bansal (supra)
has observed that anticipatory bail in corruption-related offences
involving abuse of public office is to be granted only in exceptional
circumstances.
20. The Hon’ble Supreme Court in the case of Y.S. Jagan Mohan Reddy
Vs. CBI, reported in (2013) 7 SCC 439 has held in para 34 and 35 of
its judgment that
“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,
16
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public/State and other similar
considerations.
21. Hon’ble Supreme Court in the case of “Vijay Madanlal Choudhary v.
Union of India”, 2023 (12) SCC 1, has held that:
“300. Thus, it is well settled by the various
decisions of this Court and policy of the State
as also the view of international community
that the offence of money-laundering is
committed by an individual with a deliberate
design with the motive to enhance his gains,
disregarding the interests of nation and
society as a whole and which by no stretch of
imagination can be termed as offence of
trivial nature. Thus, it is in the interest of the
State that law enforcement agencies should
be provided with a proportionate effective
mechanism so as to deal with these types of
offences as the wealth of the nation is to be
safeguarded from these dreaded criminals.
As discussed above, the conspiracy of
money-laundering, which is a three-staged
process, is hatched in secrecy and executed
in darkness, thus, it becomes imperative for
the State to frame such a stringent law, which
not only punishes the offender
17proportionately, but also helps in preventing
the offence and creating a deterrent effect.”
22. The record further reflects that the present FIR initially came to be
registered as Crime No.49/2024 at Police Station ACB/EOW, Raipur on
the basis of information shared by the Enforcement Directorate under
Section 66(2) of the PMLA pursuant to ECIR No. ECIR/RPZO/01/2019.
Thereafter, the investigation was transferred to the CBI by notifications
issued under Sections 5 and 6 of the Delhi Special Police
Establishment Act, 1946, and the same was re-registered as
RC2162025A0006 dated 16.04.2025 for offences punishable under
Sections 120-B, 166A, 182, 193, 195A and 211 of the IPC along with
Sections 7, 7A, 8 and 13(2) of the Prevention of Corruption Act, 1988.
The investigation is still in progress, and the prosecution has
specifically contended that crucial aspects relating to digital evidence,
financial trails, conspiracy linkages and the role of several persons,
including public servants, are yet to be fully unearthed. The Court
cannot lose sight of the fact that offences involving economic fraud,
corruption and organized criminal conspiracy are generally committed
in secrecy and require thorough investigation involving scrutiny of
electronic devices, banking transactions and interlinked financial
structures. At this stage, when the investigation is admittedly
continuing, and the prosecution asserts that custodial interrogation
may become necessary depending upon the evidence collected, this
Court is of the considered opinion that the grant of anticipatory bail
may adversely affect the course of investigation.
23. In the case of “Gurubaksh Singh Sibbia v. State of Punjab” 1980 (2)
SCC 565, the Hon’ble Supreme Court has held that:-
18
“31. In regard to anticipatory bail, if the
proposed accusation appears to stem not
from motives of furthering the ends of justice
but from some ulterior motive, the object
being to injure and humiliate the applicant by
having him arrested, a direction for the
release of the applicant on bail in the event of
his arrest would generally be made. On the
other hand, if it appears likely, considering
the antecedents of the applicant, that taking
advantage of the order of anticipatory bail he
will flee from justice, such an order would not
be made. But the converse of these
propositions is not necessarily true. That is to
say, it cannot be laid down as an inexorable
rule that anticipatory bail cannot be granted
unless the proposed accusation appears to
be actuated by mala fides; and, equally, that
anticipatory bail must be granted if there is
no fear that the applicant will abscond. There
are several other considerations, too
numerous to enumerate, the combined effect
of which must weigh with the court while
granting or rejecting antici-patory bail. The
nature and seriousness of the proposed
charges, the context of the events likely to
lead to the making of the charges, a
reasonable possibility of the applicant’s
presence not being secured at the trial, a
reason-able apprehension that witnesses will
be tampered with and “the larger interests of
the public or the State” are some of the
considerations which the court has to keep in
mind while deciding an application for
anticipatory bail. The relevance of these
considerations was pointed out in The State
19v. Captain Jagjit Singh, AIR 1962 SC 253
which, though, was a case under the old
Section 498 which corresponds to the present
Section 439 of the Code. It is of paramount
consideration to remember that the freedom
of the individual is as necessary for the
survival of the society as it is for the egoistic
purposes of the indi-vidual. A person seeking
anticipatory bail is still a free man entitled to
the presumption of innocence. He is willing to
submit to restraints on his freedom, by the
acceptance of conditions which the court
may think fit to impose, in consideration of
the assurance that if arrested, he shall be
enlarged on bail.
32. A word of caution may perhaps be
necessary in the the consideration whether
the applicant is likely to abscond. evaluation
of There can be no presumption that the
wealthy and the mighty will submit
themselves to trial and that the humble and
the poor will run away from the course of
justice, any more than there can be a
presumption that the former are not likely to
commit a crime and the latter are more likely
to commit it. In his charge to the grand jury at
Salisbury Assizes, 1899 (to which Krishna
Iyer, J. has referred in Gudikanti¹), Lord
Russel of Killowen said: (SCC p. 243, para 5)……..it was the duty of magistrates to
admit accused persons to bail,
wherever practicable, unless there were
strong grounds for supposing that such
persons would not appear to take their
trial. It was not the poorer classes who
20did not appear, for their circumstances
were such the to tie them to the place
where they carried on their work. They
had the golden wings with which to fly
from justice.
This, incidentally, will serve to show how no
hard and fast rules can be laid down in
discretionary matters like the grant or refusal
of bail, whether anticipatory or otherwise. No
such rules can be laid down for the simple
reason that a circumstance which, in a given
case, turns out to be conclusive, may have no
more than ordinary signification another
case.
33. We would, therefore, prefer to leave the
High Court and the Court of Session to
exercise their jurisdiction under Section 438
by a wise and careful use of their discretion
which, by their long training and experience,
they are ideally suited to do. The ends of
justice will be better served by trusting these
courts to act objectively and in consonance
with principles governing the grant of bail
which are recognised over the years, than by
divesting them of their discretion which the
legislature has conferred upon them, by
laying down inflexible rules of general
application. It is customary, almost chronic,
to take a statute as one finds it on the ground
that, after all, “the legislature in its wisdom”
has thought it fit to use a particular
expression. A convention may usefully grow
whereby the High Court and the Court of
Session may be trusted to exercise their
discretionary powers in their wisdom,
21especially when the discretion is entrusted to
their care by the legislature in its wisdom. If
they err, they are liable to be corrected.
34. This should be the end of the matter, but it
is necessary to clarify a few points which
have given rise to certain misgivings.
35. Section 438(1) of the Code lays down a
condition which has to be satisfied before
anticipatory bail can be granted. The
applicant must show that he has “reason to
believe” that he may be arrested for a non-
bailable offence. The use of the expression
“reason to believe” shows that the belief that
the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is
not ‘belief’, for which reason it is not enough
for the applicant to show that he has some
sort of a vague apprehension that some one
is going to make an accusation against him,
in pursuance of which he may be arrested.
The grounds on which the belief of the
applicant is based that he may be arrested for
a non-bailable offence, must be capable of
being examined by the court objectively,
because it is then alone that the court can
determine whether the applicant has reason
to believe that he may be so arrested. Section
438(1), therefore, cannot be invoked on the
basis of vague and general allegations, as if
to arm oneself in perpetuity against a
possible arrest. Otherwise, the number of
applications for anticipatory bail will be as
large as, at any rate, the adult populace.
Anticipatory bail is a device to secure the
individual’s liberty; it is neither a passport to
22the commission of crimes nor a shield
against any and all kinds of accusations,
likely or unlikely.
36. Secondly, if an application for anticipatory
bail is made to the High Court or the Court of
Session it must apply its own mind to the
question and decide whether a case has been
made out for granting such relief. It cannot
leave the question for the decision of the
Magistrate concerned under Section 437 of
the Code, as and when an occasion arises.
Such a course will defeat the very object of
Section 438.
37. Thirdly, the filing of a first information
report is not a condition precedent to the
exercise of the power under Section 438. The
imminence of a likely arrest founded on a
reasonable belief can be shown to exist even
if an FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted
even after an FIR is filed, so long as the
applicant has not been arrested.
39. Fifthly, the provisions of Section 438
cannot be invoked after the arrest of the
accused. The grant of “anticipatory bail” to an
accused who is under arrest involves a
contradiction in terms, insofar as the offence
or offences for which he is arrested, are
concerned. After arrest, the accused must
seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on
bail in respect of the offence or offences for
which he is arrested.
23
40. We have said that there is one proposition
formulated by the High Court with which we
are inclined to agree. That is proposition (2).
We agree that a ‘blanket order of anticipatory
bail should not generally be passed. This
flows from the very language of the section
which, as discussed above, requires the
applicant to show that he has “reason to
believe” that he may be arrested. A belief can
be said to be founded on reasonable grounds
only if there is something tangible to go by on
the basis of which it can be said that the
applicant’s apprehension that he may be
arrested is genuine. That is why, normally, a
direction should not issue under Section
438(1) to the effect that the applicant shall be
released on bail “whenever arrested for
whichever offence whatsoever”. That is what
is meant by a ‘blanket order’ of anticipatory
bail, an order which serves as a blanket to
cover or protect any and every kind of
allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which,
no concrete information can possibly be had.
The rationale of a direction under Section
438(1) is the belief of the applicant founded
on reasonable grounds that he may be
arrested for a non-bailable offence. It is
unrealistic to expect the applicant to draw up
his application with the meticulousness of a
pleading in a civil case and such is not
requirement of the section. But specific
events and facts must be dis-closed by the
applicant in order to enable the court to judge
of the reasonableness of his belief, the
24existence of which is the sine qua non of the
exercise of power conferred by the section.
41. Apart from the fact that the very language
of the statute compels this construction,
there is an important principle involved in the
insistence that facts, on the basis of which a
direction under Section 438(1) is sought,
must be clear and specific, not vague and
general. It is only by the observance of that
principle that a possible conflict between the
right of an individual to his liberty and the
right of the police to investigate into crimes
reported to them can be avoided A blanket
order of anticipatory bail is bound to cause
serious interference with both the right and
the duty of the police in the matter of
investigation because, regardless of what
kind of offence is alleged to have been
committed by the applicant and when, an
order of tail which comprehends allegedly
unlawful activity of any description
whatsoever, will prevent the police from
arresting the applicant even if he commits,
say, a murder in the presence of the public.
Such an order can then become a charter of
lawlessness and a weapon to stifle prompt
investigation into offences which could not
possibly be predicated when the order was
passed. Therefore, the court which grants
anticipatory bail must take care to specify the
offence or offences in respect the order will
be exercised in a vacuum.”
25
24. In the case of “Sushila Aggarwal v. State (NCT of Delhi)”, 2020 (5)
SCC 1, the Constitutional Bench of Hon’ble Supreme Court has held
that:-
“35. Mr. Hiren Raval, learned amicus curiae,
highlighted that while there are passages in
Sibbia (supra), which support the arguments
of the petitioners, that orders under Section
438 can be unconditional and not limited by
time, the court equally struck a note of
caution, and wished courts to be
circumspect while making orders of
anticipatory bail. In this regard, learned
senior counsel highlighted paragraphs 42
and 43 of the decisions in Sibbia.
36. Elaborating on his submissions, the
amicus submitted that whether to impose
any conditions or limit the order of
anticipatory bail in point of time undoubtedly
falls within the discretion of the court seized
of the application. He however submitted
that this discretion should be exercised with
caution and circumspection. Counsel
submitted that there could be three
situations when anticipatory bail
applications are to be considered: one, when
the application is filed in anticipation of
arrest, before filing FIR; two, after filing FIR,
but before the filing of the charge sheet; and
three, after filing charge sheet. It was
submitted that as a matter of prudence and
for good reasons, articulated in Salauddin,
K.L. Verma, Adri Dharan Das and decisions
adopting their reasoning, it would be
salutary and in public interest for courts to
26impose time limits for the life of orders of
anticipatory bail. Counsel submitted that if
anticipatory bail is sought before filing of an
FIR the courts should grant relief, limited till
the point in time, when the FIR is filed. In the
second situation, i.e. after the FIR is filed, the
court may limit the grant of anticipatory bail
till the point of time when a charge sheet is
filed; in the third situation, if the application
is made after filing the charge sheet, it is up
to the court, to grant or refuse it altogether,
looking at the nature of the charge. Likewise,
if arrest is apprehended, the court should
consider the matter in an entirely
discretionary manner, and impose such
conditions as may be deemed appropriate.
37. Mr. Raval submitted that in every
contingency, the court is not powerless after
the grant of an order of anticipatory bail; it
retains the discretion to revisit the matter if
new material relevant to the issue, is
discovered and placed on record before it.
He highlighted Section 439(2) and argued
that that provision exemplified the power of
the court to modify its previous approach
and even revoke altogether an earlier order
granting anticipatory bail. It was submitted
that the bar under Section 362 of the Code
(against review of an order by a criminal
court) is inapplicable to matters of
anticipatory bail, given the nature and
content of the power under Section 439(2).
38. Mr. Raval also submitted that power
under Section 438 cannot be exercised to
undermine any criminal investigation. He
27highlighted the concern that an
unconditional order of anticipatory bail,
would be capable of misuse to claim
immunity in a blanket manner, which was
never the intent of Parliament. Counsel
submitted that besides, the discretion of
courts empowered to grant anticipatory bail
should be understood as balancing the right
to liberty and the public interest in a fair and
objective investigation. Therefore, such
orders should be so fashioned as to ensure
that accused individuals co-operate during
investigations and assist in the process of
recovery of suspect or incriminating
material, which they may lead the police to
discover or recover and which is admissible,
during the trial, per Section 27 of the
Evidence Act. He submitted that if these
concerns are taken into account, the
declaration of law in Mhetre – particularly in
Paras 122 and 123 that no condition can be
imposed by court, in regard to applications
for anticipatory bail, is erroneous; it is
contrary to Para 42 and 43 of the declaration
of law in Sibbia‘s case (supra). It was
emphasized that ever since the decision in
Salauddin and other subsequent judgments
which followed it, the practise of courts
generally was to impose conditions while
granting anticipatory bail: especially
conditions which required the applicant/
accused to apply for bail after 90 days, or
surrender once the charge sheet was filed,
and apply for regular bail. Counsel relied on
Section 437(3) to say that the conditions
spelt out in that provision are to be
28considered, while granting anticipatory bail,
by virtue of Section 438(2).
39. Mr. Tushar Mehta, learned Solicitor
General and Mr. Vikramjit Banerjee, learned
Additional Solicitor General, submitted that
the decision in Mhetre (supra) is erroneous
and should be overruled. It was submitted
that though Section 438 does not per se pre-
suppose imposition of conditions for grant
of anticipatory bail, nevertheless, given
Section 438(2) and Section 437(3), various
factors must be taken into account. Whilst
exercising power to grant (or refuse) a
direction in the nature of anticipatory bail,
the court is bound to strike a balance
between the individual’s right to personal
freedom and the right of investigation of the
police. For this purpose, in granting relief
under Section 438(1), appropriate conditions
can be imposed under Section 438(2) to
ensure an unimpeded investigation. The
object of imposing conditions is to avoid the
possibility of the person or accused
hampering investigation. Thus, any
condition, which has no reference to the
fairness or propriety of the investigation or
trial, cannot be countenanced as permissible
under the law. Consequently, courts should
exercise their discretion in imposing
conditions with care and restraint.
40. The law presumes an accused to be
innocent till his guilt is proved. As a
presumably innocent person, he is entitled to
all the fundamental rights including the right
to liberty guaranteed under Article 21 of the
29
Constitution. Counsel stated that at the same
time, while granting anticipatory bail, the
courts are expected to consider and keep in
mind the nature and gravity of accusation,
antecedents of the applicant, namely, about
his previous involvement in such offence
and the possibility of the applicant to flee
from justice. It is also the duty of the Court to
ascertain whether accusation has been made
with the object of injuring or humiliating him
by having him so arrested. It is needless to
mention that the Courts are duty bound to
impose appropriate conditions as provided
under Section 438(2) of the Code.
41. The counsel argued that there is no
substantial difference between Sections 438
and 439 of the Code as regards appreciation
of the case while granting or refusing bail.
Neither anticipatory bail nor regular bail,
however, can be granted as a matter of rule.
Being an extraordinary privilege, should be
granted only in exceptional cases. The
judicial discretion conferred upon the court
must be properly exercised after proper
application of mind to decide whether it is a
fit case for grant of anticipatory bail. In this
regard, counsel relied on Jai Prakash Singh
v State of Bihar26. Counsel relied on 2012 (4)
SCC 325 State of M.P. & Anr. v Ram Kishna
Balothia & Anr. 27 where this court
considered the nature of the right of
anticipatory bail and observed that:
“7……We find it difficult to accept the
contention that Section 438 of the
Code of Criminal Procedure is an
30integral part of Article 21. In the first
place, there was no provision similar to
Section 438 in the old Code of Criminal
Procedure……Also anticipatory hail
cannot he granted as a matter of right.
It is essentially a statutory right
conferred long after the coming into
force of the Constitution. It cannot he
considered as an essential ingredient
of Article 21 of the Constitution. and its
non- application to a certain special
category of offences cannot he
considered as violative of Article 21.”
42. The decisions in Savitri Agarwal v. State
of Maharashtra & Anr 28, and Sibbia were
referred to, to argue that before granting an
order of anticipatory bail, the court should be
satisfied that the applicant seeking it has
reason to believe that he is likely to be
arrested for a non-bailable offence and that
belief must be founded on reasonable
grounds. Mere “fear” is not belief; it is
insufficient for an applicant to show that he
has some sort of vague apprehension that
someone is going to accuse him, for
committing an offence pursuant to which he
may be arrested. An applicant’s grounds on
which he believes he may be arrested for a
non-bailable offence, must be capable of
examination by the Court objectively.
Specific events and facts should be
disclosed to enable the Court to judge of the
reasonableness of his belief, the existence of
which is the sine qua non of the exercise of
power conferred by the Section. It was
31
pointed out that the provisions of Section
438 cannot be invoked after the arrest of the
accused. After arrest, the accused must seek
his remedy under Section 437 or Section 439
of the Code, if he wants to be released on
bail in respect of the offence or offences for
which he is arrested. The following passages
in Savitri Agarwal (supra) were relied upon:
“24. While cautioning against
imposition of unnecessary restrictions
on the scope of the section, because,
in its opinion, overgenerous infusion of
constraints and conditions, which were
not to be found in Section 438 of the
Code, could make the provision
constitutionally vulnerable, since the
right of personal freedom, as
enshrined in Article 21 of the
Constitution, cannot be made to
depend on compliance with
unreasonable restrictions, the
Constitution Bench laid down the
following guidelines, which the courts
are required to keep in mind while
dealing with an application for grant of
anticipatory bail:
***
(iv) No blanket order of bail should be
passed and the court which grants
anticipatory bail must take care to
specify the offence or the offences in
respect of which alone the order will be
effective. While granting relief under
Section 438(1) of the Code, appropriate
32conditions can be imposed under
Section 438(2) so as to ensure an
uninterrupted investigation. One such
condition can even be that in the event
of the police making out a case of a
likely discovery under Section 27 of the
Evidence Act, the person released on
bail shall be liable to be taken in police
custody for facilitating the recovery.
Otherwise, such an order can become
a charter of lawlessness and a weapon
to stifle prompt investigation into
offences which could not possible be
predicated when the order was passed.
***
(ix) Though it is not necessary that the
operation of an order passed under
Section 438(1) of the Code be limited in
point of time but the court may, if there
are reasons for doing so, limit the
operation of the order to a short period
until after the filing of FIR in respect of
the matter covered by the order. The
applicant may, in such cases, be
directed to obtain an order of bail
under Section 437 or 439 of the Code
within a reasonable short period after
the filing of the FIR.”
43. It was also argued on behalf of the Govt
of NCT and the Union, that this court had
expressed a serious concern, time and
again, that if accused or applicants who seek
anticipatory bail are equipped with an
unconditional order before they are
33
interrogated by the police it would greatly
harm the investigation and would impede the
prospects of unearthing all the ramifications
involved in a conspiracy. Public interest also
would suffer as consequence. Reference was
invited to State of A.P. v. Bimal Krishna
Kundu29 in this context. Likewise, attention
of the court was invited to Muraleedharan v.
State of Kerala30 which held that
“7……Custodial interrogation of such
an accused is indispensably necessary
for the investigating agency to unearth
all the links involved in the criminal
conspiracies committed by the person
which ultimately led to the capital
tragedy.”
It was highlighted that statements
made during custodial interrogation
are qualitatively more relevant to those
made otherwise. Granting an
unconditional order of anticipatory bail
would therefore thwart a complete and
objective investigation.
44. Mr. Aman Lekhi, learned Additional
Solicitor General, urged that the general drift
of reasoning in Sibbia was not in favour of a
generalized imposition of conditions- either
as to the period (in terms of time, or in terms
of a specific event, such as filing of charge
sheet) limiting the grant of anticipatory bail.
It was submitted that the text of Section
439(2) applied per se to all forms of orders-
including an order or direction to release an
applicant on bail (i.e. grant of anticipatory
34
bail), upon the court’s satisfaction that it is
necessary to do so. Such order (of
cancellation, under Section 439(2) or
direction to arrest) may made be where the
conditions made applicable at the time of
grant of relief, are violated or not complied
with, or where the larger interests of a fair
investigation necessitate it.
Analysis and Conclusions
Re Question No 1: Whether the protection
granted to a person under Section 438, CrPC
should be limited to a fixed period so as to
enable the person to surrender before the
Trial Court and seek regular bail.
45. The concept of bail, i.e. preserving the
liberty of citizen – even accused of
committing offences, but subject to
conditions, dates back to antiquity. Justinian
I in the collections of laws and
interpretations which prevailed in his times,
Codex Justinianus (or ‘Code Jus’) in Book 9
titled Title 3(2) stipulated that “no accused
person shall under any circumstances, be
confined in prison before he is convicted”.
The second example of a norm of the distant
past is the Magna Carta which by clause 44
enacted that “people who live outside the
forest need not in future appear before the
Royal Justices of the forest in answer to the
general summons unless they are actually
involved in proceedings or are sureties for
someone who has been seized for a forest
offence.” Clear Parliamentary recognition of
bail took shape in later enactments in the UK
35
through the Habeas Corpus Act 1677 and the
English Bill of Rights, 1689 which prescribed
that “excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and
unusual punishments inflicted”.
46. Bail ipso facto has not been defined
under the Code. It is now widely recognized
as a norm which includes the governing
principles enabling the setting of accused
person on liberty subject to safeguards,
required to make sure that he is present
whenever needed. The justification for bail
(to one accused of commission or
committing a crime is that it preserves a
person who is under cloud of having
transgressed law but not convicted for it,
from the rigors of a detention.”
25. The principal contention advanced on behalf of the applicant is that he
has not been named in the earlier FIRs, prosecution complaints or
charge-sheets filed by the Enforcement Directorate and ACB/EOW and
that his implication at this stage is mala fide and intended only to
perpetuate his incarceration through successive arrests. However,
merely because the applicant has not yet been arraigned as an
accused in earlier proceedings does not ipso facto establish his
innocence or disentitle the investigating agency from conducting further
investigation if material subsequently surfaces regarding his
involvement. The prosecution has categorically stated that during the
course of investigation, the role of the present applicant has emerged
as a suspect and that further investigation is being carried out
regarding financial transactions, illegal protection money and
conspiracy linkages. The allegations raised by the applicant regarding
36
political vendetta, fabricated implication and “evergreening of arrest”
are matters requiring evidence and cannot be conclusively adjudicated
at the stage of consideration of anticipatory bail. The material placed
before this Court does not presently justify recording any finding that
the investigation is wholly mala fide or that the proceedings are entirely
without jurisdiction. Rather, the record demonstrates that multiple
agencies, including the Enforcement Directorate, ACB/EOW and the
CBI, have undertaken investigations into different aspects of the
alleged scam over a considerable period of time. Therefore, at this
preliminary stage, the Court is not inclined to accept the contention that
the present proceedings are solely intended to harass the applicant.
26. This Court is also unable to accept the submission that the applicant is
entitled to anticipatory bail on the ground of parity. The law is well
settled that parity cannot be claimed in a mechanical manner,
particularly in cases involving criminal conspiracy and economic
offences, where the role attributed to each accused may stand on a
different footing. The prosecution has specifically asserted that the role
of the applicant is under active investigation and cannot be equated
with that of other accused persons who may have been granted regular
or anticipatory bail in separate proceedings. Similarly, the fact that
searches conducted at the premises of the applicant have not yet
resulted in the filing of a charge-sheet against him cannot, by itself, be
treated as conclusive proof that no incriminating material exists against
him. Investigation into economic offences often involves extensive
examination of digital data, financial transactions and interlinked
evidence spread across various jurisdictions and entities. At this stage,
the Court cannot enter into a meticulous examination of the evidentiary
37
value of the material collected or record findings regarding the
sufficiency thereof. The Court is only required to assess whether the
allegations disclose a serious cognizable offence and whether
custodial interrogation or unrestricted investigation may be necessary
in the facts of the case.
27. It is equally significant to note that the offences alleged against the
applicant are grave economic offences involving deep-rooted
conspiracy, corruption and misuse of official position. The Hon’ble
Supreme Court has consistently held that economic offences constitute
a class apart and are required to be viewed seriously as they affect the
economy and public confidence in the system. The prosecution has
specifically contended that the applicant is an influential person having
served in a high administrative capacity, and there exists a possibility of
influencing witnesses, tampering with evidence and obstructing the
investigation. The evidence in the present case is stated to be largely
digital and financial in nature, susceptible to manipulation and
concealment. In such circumstances, this Court is of the view that the
grant of anticipatory bail at this juncture may impede a fair and effective
investigation. The discretionary relief under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, cannot be granted as a
matter of routine, particularly when serious allegations are under
investigation.
28. In the case of “Devinder Kumar Bansal” (supra), the Hon’ble Supreme
Court has considered that:-
“21. The parameters for grant of anticipatory
bail in a serious offence like corruption are
required to be satisfied. Anticipatory bail can
38be granted only in exceptional circumstances
where the court is prima facie of the view that
the applicant has been falsely enroped in the
crime or the allegations are politically
motivated or are frivolous. So far as the case
at hand is concerned, it cannot be said that
any exceptional circumstances have been
made out by the petitioner-accused for grant
of anticipatory bail and there is no frivolity in
the prosecution.
22. In the aforesaid context, we may refer to a
pronouncement in CBI v. V Vijay Sai Reddy,
wherein this Court expressed thus: (SCC p.
465, para 34)“34. While granting bail, the court has to
keep in mind the nature of accusation,
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. It has also
to be kept in mind that for the purpose
of granting bail, the legislature has
used the words “reasonable grounds
for believing” instead of “the evidence”
which means the court dealing with the
grant of bail can only satisfy itself as to
whether there is a genuine case against
the accused and that the prosecution
39
will be able to produce prima facie
evidence in support of the charge. It is
not expected, at this stage, to have the
evidence establishing the guilt of the
accused beyond reasonable doubt.”
(emphasis in original and supplied)
23. The presumption of innocence, by itself,
cannot be the sole consideration for grant of
anticipatory bail. The presumption of
innocence is one of the considerations, which
the court should keep in mind while
considering the plea for anticipatory bail. The
salutary rule is to balance the gcause of the
accused and the cause of public justice. Over
solicitous homage to the accused’s liberty
can, sometimes, defeat the cause of public
justice.
24. If liberty is to be denied to an accused to
ensure corruption free society, then the
courts should not hesitate in denying such
liberty. Where overwhelming considerations
in the nature aforesaid require denial of
anticipatory bail, it has to be denied. It is
altogether a different thing to say that to
grant regular bail to a public servant accused
of indulging in corruption.
25. Avarice is a common frailty of mankind
and Robert Walpole’s famous France fell
because there was corruption without
indignation. Corruption has, b liberty cannot
last long.” In more recent years, Romain
Rolland lamented that centuries ago, it was
Burke who cautioned: “Among a people
generally corrupt, in it, very dangerous
40
potentialities. Corruption, a word of wide
connotation has, the limited meaning of
allowing decisions and actions to be
influenced not by in respect of almost all the
spheres of our day-to-day life, all the world
over, the rights or wrongs of a case but by the
prospects of monetary gains or other selfish
considerations.
26. If even a fraction of what was the vox
populi about the magnitude of c corruption to
be true, then it would not be far removed from
the truth, that it is the rampant corruption
indulged in with impunity by highly placed
persons that has led to economic unrest in
this country. If one is asked to name one sole
factor that effectively arrested the progress of
our society to prosperity, undeniably it is
corruption. If the society in a developing
country faces a menace greater than even the
one from the hired assassins to its law and
order, then that is from the corrupt elements
at the higher echelons of the Government and
of the political parties.
27. In Manoj Narula v. Union of India, this
Court held that corruption erodes the
fundamental tenets of the rule of law and
quoted with approval its judgment in Niranjan
Hemchandra Sashittal v. State of Maharashtra
10 and held as under: (Manoj Narula case,
SCC pp. 25-26, para 16)
“16. 26. It can be stated without any fear
of contradiction that corruption is not to
be judged by degree, for corruption
mothers disorder, destroys societal will
41
to progress, accelerates undeserved
ambitions, kills the conscience,
jettisons the glory of the institutions,
paralyses the economic health of a
country, corrodes the sense of civility
and mars the marrows of governance.
(Niranjan Hemchandra Sashittal case
10, SCC pp. 654-55, para 26)”
(emphasis supplied)
28. In Subramanian Swamy v. Manmohan
Singh¹¹, this Court held as under: (SCC p.
100, para 68)“68. Today, corruption in our country
not only poses a grave danger to the
concept of constitutional governance, it
also threatens the very foundation of
Indian democracy and the Rule of Law.
The magnitude of corruption in our
public life is incompatible with the
concept of a socialist, secular
democratic republic. It cannot be
disputed that wherecorruption begins
all rights end. Corruption devalues
human rights, chokes that any anti-
corruption law has to be interpreted and
worked out in such a the core values in
our preambular vision. Therefore, the
duty of the court is fashion as to
strengthen the fight against
corruption.” (emphasis supplied)
29. In K.C. Sareen v. CB112, this Court
observed thus: (SCC p. 589. para 12)
42“12. Corruption by public servants has
now reached a monstrous dimension in
India. Its tentacles have started
grappling even the institutions created
for the protection of the republic.
Unless those tentacles are intercepted
and impeded from gripping the normal
and orderly functioning of the public
offices, through strong legislative,
executive as well as judicial exercises
the corrupt public servants could even
paralyse the functioning of such
institutions and thereby hinder the
democratic polity.”
(emphasis supplied)
30. While approving the judgment of
Subramanian Swamy v. CB113. rendered by
another Constitution Bench in Manoj Narula
case, a Constitution Bench of this Court,
dealing with rampant corruption, observed as
under: (SCC pp. 26-27, paras 17-18)
“17. Recently, in Subramanian Swamy v.
CB113, the Constitution Bench,
speaking through R.M. Lodha, C.J.,
while declaring Section 6-A of the Delhi
Special Police Establishment Act, 1946,
which was inserted by Act 45 of 2003,
as unconstitutional, has opined that:
(SCC pp. 725-26, para 59)
59. It seems to us that classification
which is made in Section 6-A on the
basis of status in the government
service is not permissible under Article
14 as it defeats the purpose of finding
43prima facie truth into the allegations of
graft, which amount to an offence under
the PC Act, 1988. Can there be sound
differentiation between corrupt public
servants based on their status? Surely
not, because irrespective of their status
or position, corrupt public servants are
corrupters of public power. The corrupt
public servants, whether high or low,
are birds of the same feather and must
be confronted with the process of
investigation and inquiry equally. Based
on the position or status in service, no
distinction can be made between public
servants against whom there are
allegations amounting to an offence
under the PC Act, 1988.’And thereafter, the larger Bench further
said: (SCC p. 726, para 60)’60. Corruption is an enemy of the
nation and tracking down corrupt public
servants and punishing such persons is
a necessary mandate of the PC Act,
1988. It is difficult to justify the
classificationwhich has been made in
Section 6-A because the goal of law in
the PC Act. 1988 is to meet corruption
cases with a very strong hand and all
public servants are warned through
such a legislative measure that corrupt
public servants have to face very
serious consequences.”
And again: (SCC pp. 730-31, paras 71-
72)
44
71. Office of public power cannot be the
workshop of personal gain. The probity
in public life is of great importance.
How can two public servants against
whom there are allegations of
corruption of graft or bribe-taking or
criminal misconduct under the PC Act,
1988 b can be made to be treated
differently because one happens to be a
junior officer and the other, a senior
decision maker.
72. Corruption is an enemy of nation
and tracking down corrupt public
servant, howsoever high he may be,
and punishing such person is a
necessary mandate under the PC Act,
1988. The status or position of public
servant does not qualify such public
servant from exemption from equal
treatment. The decision-making power
does not segregate corrupt officers into
two classes as they are common
crimedoers and have to be tracked
down by the same process of inquiry
and investigation.’
18. From the aforesaid authorities, it is
clear as noonday that corruption d has
the potentiality to destroy many a
progressive aspect and it has acted as
the formidable enemy of the nation.”
(emphasis supplied)
31. In Neera Yadav v. CBI14, this Court
observed thus: (SCC pp. 784-85. paras 59-61)
45
“59. Every country feels a constant
longing for good governance, e is no
longer a moral issue as it is linked with
the search of wholesome righteous use
of power and transparency in
administration. Corruption fairly, free
from corruption and nepotism.
Corruption has spread its governance
and the society’s need for reassurance
that the system functions to the growth
of investment and development of the
country. If the conduct f tentacles
almost on all the key areas of the State
and it is an impediment of
administrative authorities is righteous
and duties are performed in good faith
with the vigilance and awareness that
they are public trustees of people’s
rights, the issue of lack of
accountability would themselves fade
into insignificance.
60. To state the ubiquity of corruption,
we may refer to the oft quoted words of
Kautilya, which reads as under:
‘Just as it is impossible not to taste the
honey or the poison that finds itself at
the tip of the tongue, so it is impossible
for a government servant not to eat up,
at least, a bit of the king’s revenue. Just
as fish moving under water cannot
possibly be found out either as drinking
or not drinking water, so government
servants employed inthe government
work cannot be found out (while) taking
money (for themselves).
46
It is possible to mark the movements of
birds flying high up in the sky; but not
so is it possible to ascertain the
movement of government servants of
hidden purpose.’[Ref: Kautilya’s Arthasastra by R.
Shamasastry, 2nd Edn., p. 77]As pointed out by Paul H. Douglas in
his book on “Ethics of Government”.
‘corruption was rife in British public life
till a hundred years ago and in USA till
the beginning of this century. Nor can it
be claimed that it has been altogether
eliminated anywhere.”
(Ref: Santhanam Committee Report,
1962: Para 2.3)
61. Tackling corruption is going to be a
priority task for the Government. The
Government has been making constant
efforts to deal with the problem of
corruption. However, the constant
legislative reforms and strict judicial
actions have still not been able to
completely uproot the deeply rooted
evil of corruption. This is the area
where the Government needs to be
seen taking unrelenting, stern and
uncompromising steps. Leaders should
think of introducing good and effective
leadership at the helm of affairs; only
then benefits of liberalisation and
various programmes, welfare schemes
and programmes would reach the
masses. Lack of awareness and supine
47
attitude of the public has all along been
found to be to the advantage of the
corrupt. Due to the uncontrolled spread
of consumerism and fall in moral
values, corruption has taken deep roots
in the society. What is needed is a
reawakening and recommitment to the
basic values of tradition rooted in
ancient and external wisdom. Unless
people rise against bribery and
corruption, society can never be rid of
this disease. The people can
collectively put off this evil by resisting
corruption by any person, howsoever
high he or she may be.”
29. Accordingly, having regard to the nature and gravity of the allegations,
the magnitude of the alleged offence, the stage of investigation, the
requirement of further probe into digital and financial evidence, and the
possibility of interference with the investigation, this Court is not
inclined to exercise its discretionary jurisdiction in favour of the
applicant. This Court is of the considered opinion that the applicant has
failed to make out a case warranting the grant of anticipatory bail.
30. Consequently, the present anticipatory bail application of the applicant
Anil Tuteja, deserves to be and is accordingly dismissed. ***
Sd/-
(Ravindra Kumar Agrawal)
Judge
Alok
