Order 20

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CC No. 15/2024
State v Harmenn Sabherwal & Ors.
FIR No.56/2022
P.S. EOW
27.05.2025
ORDER
The applicant/accused Prafulla Kumar Nayak has filed an
application seeking grant of regular bail under Section 438 of Bhartiya
Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’) in
FIR No. 56 of 2022 dated 13.04.2022 registered under Sections
406/420/467/468/471/120B of Indian Penal Code, 1860 (hereinafter
referred to as ‘IPC’) and Section 7 of the Prevention of Corruption
Act, 1988 (hereinafter referred to as ‘PC Act’) at P.S. EOW, New
Delhi.
2. The factual matrix of the present matter is as follows:
3. The present case has been registered on the complaint of
one Sh. Sunil Kaushik who alleged that one Nitin Sharma who was
known to him since long introduced him to one Harish Goyal who
was working as a CA. It is alleged that the said Harish Goyal and
Nitin Sharma offered him the opportunity to secure a contract from
the Ministry of Health & Family Welfare for transportation of Covid
vaccines to different districts of State of Assam. It is further alleged
that on the assurance of the said persons, the complainant’s friend
namely Vikash Gupta agreed to pay Rs. 4 crores as expenses for
making arrangement for smooth execution of the tender/contract. On
15.07.2021, accused Harish Goyal and Nitin Sharma took the
complainant and his friend Vikash Gupta to Nirman Bhawan for the
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signing of the tender/contract papers with the Ministry of Health &
Family Welfare. Upon reaching near Nirman Bhawan, accused Harish
Goyal stated that only Vikash Gupta will be allowed to enter inside
the building. Thereafter, one person came from inside of the building
of Nirman Bhawan and took Vikash Gupta inside it. Complainant was
not allowed to go inside the said building. Harish Goyal and Nitin
Sharma also remained outside the building. It is alleged that Vikash
Gupta was taken to the second floor of the building where some
persons were present in the waiting room. Some documents were
executed regarding the tender and a work order was handed over to
him bearing signatures/seal of the officers of Ministry of Health.
Further, an amount of Rs.3 crores (in cash) was handed over to the
accused persons. Later, the complainant came to know that the said
contract was fake and that they had been cheated. It is also alleged
that Nitin Sharma and Harish Goyal further handed over the amount
to Mr. Govind Tulsian and one Harmenn Sabherwal who were
allegedly in contact with the officers of the Health Ministry.
4. It came in the investigation that with same modus
operandi to cheat people in the name of awarding contract for
distribution of Covid vaccines, another complainant namely Vishal
Jain was cheated for a sum of Rs.5.15 Crores; complainant Himansh
Chabra was cheated for Rs. 70 Lacs; and joint complainants Shree
Ram Verma, Sachin Vigmal and Ashok Kumar were also cheated for
an amount of Rs.9.6 crores.
5. During investigation, it was revealed that all the victims
came into contact with Govind Tulsian through different sources who
assured all the victims that his friend, Harmenn Sabherwal, had high
connections in the Ministry of Health & Family Welfare and could
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arrange the tenders. The amount was received by Govind Tulsian and
handed over to Harmenn Sabherwal.
6. It came in the investigation that the accused/applicant
Prafulla Kumar Nayak was involved in the conspiracy and made
arrangements for meetings in the Ministry of Health & Family
Welfare with fake officers. He allegedly managed Mrityunjay Roy
(reception officer of Nirman Bhawan) and two MTS/ Peon namely,
Trilok Singh and Diprana Tiwari. Trilok Singh arranged seating of
fake offiers in the conference room of the Health Minister (MoS) for
meetings with the victims. Diprana Tiwari used to faciliate the entry
of victims into Nirman Bhawan through passes prepared by
Mrityunjay Roy, even after his transfer from Nirman Bhawan,
Accused Umesh Batra impersonated an officer of the Ministry and
was involved in the entire conspiracy.
7. As per the account statements of accused Harmenn
Sabherwal, during the alleged period, he transferred amounts to the
account of Prafulla Kumar Nayak, who further transferred the amount
to Mrityunjay Roy, Pawan Kumar and Umesh Batra.
8. It is further alleged that accused Pawan Kumar Rai is the
president of the society Aarti Education and Healthcare Society where
the cheated money was diverted and accused Prafulla Kumar Nayak is
the Treasurer who used to represent himself as an offficer of the
Ministry of Health & Family Welfare.
9. During investigation, it was revealed that the applicant/
accused Prafulla Kumar Nayak arranged hand-made pass through
Mrityunjay Roy to enter the main building of Ministry of Health &
Family Welfare. One MTS, Dipana Tiwari, used to come outside
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Nirman Bhawan, collect the passes from Prafulla Kumar Nayak and
escort the parties to the conference room. Trilok Singh made seating
arrangements for the accused, including Prafulla Kumar Nayak,
Umesh Batra and Vinod Kumar who pretended to be officers of the
Ministry.
10. It has also been alleged that Rs. 1.41 Crore (approx.) and
Rs. 1.28 Crore (approx.) were transeferred to Aarti Education and
Healthcare Society from Mukesh Kumar Jha and Harmenn Sabherwal,
respectively. Accused Prafulla Kumar Nayak was the Treasurer of the
said society and its authorised signatory. It is alleged that applicant/
accused Prafulla Kumar Nayak received Rs. 5.39 Lacs from Mukesh
Kumar Jha and Rs. 14.28 Lacs from Harmenn Sabherwal in his
account.
11. Further, it is also alleged that Harmenn Sabherwal had
disclosed that he, in connivance with applicant/ accused Prafulla
Kumar Nayak had planned to arrange entry into Nirman Bhawan. It is
also alleged that as per the statement of Shreeram Verma, applicant/
accused Prafulla Kumar Nayak held a meeting on 09.09.2021 in
Room no. 329C of Nirman Bhawan, impersonating an officer named
Dr. Pradeep of the Ministry and assured him that pending payments
would be released shortly.
12. I have heard Mr. Pankaj Kumar, Ld. Counsel for the
applicant/ accused Prafulla Kumar Nayak and Mr. Vikash Kumar Ld.
PP for the State and carefully perused the record.
13. The present bail application has been filed on the
following main grounds:
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(i) That the applicant/accused has cooperated during the entire
course of investigation.
(ii) That the applicant/accused has joined the investigation as and
when he was called by the IO.
(iii) That the mobile phone of the applicant/accused has already
been taken by the IO and the account in which the alleged money
was deposited has been frozen by the IO. Now, nothing remains to be
recovered from the applicant/accused.
(iv) That the applicant has no role in the act of cheating and forgery
alleged to be committed by the applicant/ accused.
(v) That the applicant/accused was simply working as a Treasurer
at Aarti Education and Healthcare Society at the instructions of the
President who was whole and sole incharge of the Society.
(vi) That all the co-accused persons have already been released on
bail.
(vii) That the first bail application of the applicant/ accused was
dismissed on the ground that investigation was under process but
now investigation has been completed.
14. Ld. Counsel for the applicant/ accused Prafulla Kumar
Nayak prayed that considering the above, the applicant/ accused be
released on regular bail.
15. Ld. PP for the State has opposed the above bail
application of the accused on the following grounds:
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(i) Prafulla Kumar Nayak received Rs. 5.39 Lacs from Mukesh
Kumar Jha and Rs. 14.28 Lacs from Harmen Sabherwal.
(ii) CDR analysis shows that he was in contact with Harmenn
Sabherwal, Mrityunjoy Roy, Diprana Tiwari, Umesh Batra and Trilok
Singh. He also made two phone calls to victim Shreeram pretending
as an officer of Ministry.
(iii) Whatsapp chat shows that he also made arrangement to send
email from a government id/email address to the complainant of the
scam.
(iv) Statement of the victims Shree Ram, who identified him that he
was acting as an officer of the Ministry.
(v) Entry pass provided by the Ministry shows that he alongwith
Umesh Batra visited the Ministry on 24.06.2021.
(vi) Prafulla Kumar Nayak is also an authorised signatory in bank
account of Aarti Education Society. Accused Prafulla Kumar Nayak
joined the investigation on 26.08.2022 and admitted that he was
working at the instance of Harmenn Sabherwal. He also admitted that
he took 6-8% commission in connection with the account transactions
done. He also admitted that he arranged entries in Nirman Bhawan.
(vii) Victim Shreeram Verma stated that Prafulla Kumar Nayak held
a meeting on 09.09.2021 in Room no. 329C and on 10.08.2021 on
second floor of Nirman Bhawan and impersonated himself as an
officer namely Dr. Pradeep of MoH&FW.
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(viii) As per CDR of Shreeram Verma, Prafulla Kumar Nayak called
him on 13.07.2021 & 15.07.2021. Thus, he actively participated in the
conspiracy of alleged cheating and forgery from the very beginning.
(ix) As per whatsapp chat record found in his mobile phone, he was
in contact with Harmenn Sabherwal and he was acting in connivance
with him.
(x) The anticipatory bail applications of the applicant/ accused
Prafulla Kumar Nayak were dismissed twice vide orders dated
09.09.2022 and 07.03.2023. Despite raids, he was evading arrest.
Notice under Section 82 Cr.P.C. was initated against him which was
dropped by Ld. CMM, New Delhi.
16. From the record, it appears that the applicant/accused
Prafulla Kumar Nayak was arrested on 21.01.2025 and further, that
his first bail application was dismissed vide order dated 11.03.2025.
17. Chargesheet (supplementary) has already been filed
against the applicant/ accused Prafulla Kumar Nayak on 17.04.2025.
Hon’ble Supreme Court of India has held in the case of Babu Singh &
Ors. V State of U. P. (1978) 1 SCC 579, that
“An order refusing an
application for bail does not necessarily preclude another, on a later
occasion, giving more materials, further developments and
different considerations. While it is a circumstance which the Courts
surely must set store, Courts are not barred from second
consideration at a later stage.”
18. Clearly, the first bail application was dismissed before the
filing of the chargesheet. Now, since the Chargesheet has already been
filed against Prafulla Kumar Nayak, the investigation is complete and
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continuing incarceration of the applicant/acuused will not aid the
investigation in any manner. There is a presumption of innocence of
the accused and the applicant/ acused cannot be detained as a punitive
measure. In the case of Siddharam Saltingappa Mhetre Vs. State of
Maharashtra (2011) 1 SCC 694, the Hon'ble Supreme Court observed
as under:
“3. The society has a vital interest in grant or
refusal of bail because every criminal offence is the
offence against the State. The order granting or
refusing bail must reflect perfect balance between
the conflicting interests, namely, sanctity of
individual liberty and the interest of the society. The
law of bails dovetails two conflicting interests
namely, on the one hand, the requirements of
shielding the society from the hazards of those
committing crimes and potentiality of repeating the
same crime while on bail and on the other hand
absolute adherence of the fundamental principle of
criminal jurisprudence regarding presumption of
innocence of an accused until he is found guilty and
the sanctity of individual liberty.
...
127. Personal liberty is a very precious fundamental
right and it should be curtailed only when it
becomes imperative according to the peculiar facts
and circumstances of the case."
19. Further, in the case of Moti Ram Vs. State of M.P. (1978)
4 SCC 47, the Hon'ble Supreme Court held:
“The consequences of pre-trial detention are grave.
Defendants presumed innocent are subjected to the
psychological and physical deprivations of jail life,
usually under more onerous conditions than are
imposed on convicted defendants. The jailed
defendant loses his job if he has one and is
prevented from contributing to the preparation of
his defence. Equally important, the burden of his
detention frequently falls heavily on the innocent
members of his family.”
20. In the case of Sanjay Chandra vs CBI Crl. Appeal
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State vs. Harmenn Sabherwal & Ors.
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No.2178 of 2011 decided on 23 November, 2011, it was held by
Hon'ble Supreme Court that:
“In bail applications, generally, it has been laid
down from the earliest times that the object of bail
is to secure the appearance of the accused person at
his trial by reasonable amount of bail. The object of
bail is neither punitive nor preventative.
Deprivation of liberty must be considered a
punishment, unless it can be required to ensure that
an accused person will stand his trial when called
upon.
The courts owe more than verbal respect to the
principle that punishment begins after conviction,
and that every man is deemed to be innocent until
duly tried and duly found guilty.”
21. From the above judgments passed by Hon’ble Supreme
Court, it is clear that the baisc rule is bail and jail is an exception
except where circumstances suggest that the accused may flee from
justice or thwart the course of justice or repeat offences or intimidate
witnesses. In the present case, the applicant/ accused has been in
custody since 21.01.2025. The other co-accused except Harmenn
Sabherwal have already been released on bail. Ld. PP for the State had
argued that the role of the applicant/ accused is grave as he had
impersonated as an official from the Ministry of Health and Family
Welfare. He had also argued that the money was deposited into the
account of the applicant/ accused and that he had signed the cheques
for further transmission of the money. However, keeping such
allegations on the face of it, it is admitted proposition of law that the
bail is a rule and denial is an exception. Accused is in judicial custody
since 21.01.2025 and admittedly not required in investigation. There
is no allegation that there is likelihood of accused fleeing away from
the judicial process. The other co-accused who were also allegedly
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actively involved in the commission of the crime are already on bail.
In such circumstances, I am of the view that bail cannot be denied to
the accused as a punishment when accused would be facing the trial in
accordance with law. Therefore, the application for bail is allowed.
Applicant/accused Prafulla Kumar Nayak is directed to be released on
bail, on furnishing personal bond in the sum of Rs. 50,000/- with one
surety in the like sum and subject to the following conditions:
a. The applicant shall not leave the country without prior
permission of this Court.
b. The applicant shall not misuse the benefit of bail by
indulging in commission of similar offences in future.
c. The applicant shall not contact any of the witnesses of the
case or extend, directly or indirectly, any inducement or threat
to the witnesses.
d. The applicant shall appear before this Court on each and
every date of hearing.
e. The applicant shall intimate this Court in case of change of
his address.
If the applicant/accused is found to be violating any of
the above conditions, the State shall be at liberty to move an
application for cancellation of bail.
The application is accordingly disposed off.
Copy of this order be given dasti to Ld. Counsel for
applicant/accused, as prayed.
(Dr. Ruchi Aggarwal Asrani)
Special Judge (PC Act)(ACB)-02
Rouse Avenue District Courts
New Delhi/27.05.2025
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