Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. MUKESH KUMAR : SPL.
JUDGE (PC ACT) (CBI)-05, RADC, NEW DELHI.
CBI Vs. Avnish Kumar & Ors.
RC No. 2182025A0010
CBI, AC-III, New Delhi.
Bail Matter No. 94/2025
(Bail application moved by
accused Jyotimon Dethan)
under Section 61 (2) of BNSS
r/w Section 7, 7A and 12 of PC Act
(as amended in 2018)
08.05.2025.
ORDER
Present: Sh. Pankaj Kumar Gupta, Ld. PP for CBI.
IO Insp. Prakhar Moond, CBI, AC-III, New Delhi.
Sh. Rahul Bhagat, Sh. K.P. Singh and Sh. Deepak
Garg, Ld. Counsels for accused Jyotimon Dethan.
1) By this order, I shall dispose of the bail application moved
on behalf of applicant/accused Jyotimon Dethan under Section
480, 483 of BNSS, 2023. In his application, it is averred by the
applicant that as per the allegations in the FIR. Accused no. 1
Avnish Kumar approached the complainant for settlement of his
cases by introducing himself as CBI officer and accused no. 1
further introduced the complainant to Anil Tanwar, a Law
Officer fo CBI and Ramesh Kumar another CBI Officer, who
offered to help him in CBI cases and demanded Rs. 50 lacs and
Rs. 10 lacs respectively from him. It is further submitted that
accused no. 1 again met the complainant on 07.04.2025 and
asked him to meet him on 08.04.2025 for having a meeting with
the concerned officer and deciding the bribe amount to be paid.
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It is further submitted that the discreet verification was conducted
and the verification memo so prepared confirmed the allegations
against the accused no. 1, accused no. 2 and accused no. 3. It is
further submitted that the verification memo also revealed that
the applicant/accused also demanded illegal gratification of Rs.
50,000/- from the complainant for influencing ED officers in his
ED case. It is further submitted that the applicant was arrested
by CBI from his office at Office of Joint Secretary, HUDCO
Vaishala Building, CBIC, Bhikaji Cama Place, New Delhi on
09.04.2025 and was produced before the Court on 10.04.2025
along with other accused persons with the request to grant police
custody to all the accused persons. However, the application of
CBI for grant of police custody was kept on hold by the Ld.
Special Judge for want of incriminating evidence to be recovered
from the accused persons and all the accused persons were
remanded to judicial custody till 15.04.2025. It is further
submitted that on 15.04.2025, the present case was transferred to
this Court and the applicant/accused along with other accused
persons were produced before the Court and CBI again moved an
application seeking police custody and the same was declined by
this Court and all the accused persons were remanded to judicial
custody till 29.04.2025. It is further submitted that the CBI
challenged the order dated 15.04.2025 of this Court and the
Hon’ble High Court granted two days police custody of the all
the accused persons to CBI w.e.f 26.04.2025 with the direction to
produce them before this Court on 28.04.2025. It is further
submitted that on 28.04.2025 all the accused persons were sent to
judicial custody. It is further submitted that accused no. 2 Anil
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Tanwar and accused no. 1 Avnish Kumar were already granted
bail by this Court.
2) It is further submitted that the applicant/accused has been
arraigned wrongly in this case and applicant/accused is nowhere
connected with the alleged conspiracy and his name was not even
mentioned in the initial complaint. It is further submitted that
applicant/accused was not caught red handed and the allegation
that he has received Rs. 50,000/- in his account through UPI
transfer which itself indicates the innocence of the
applicant/accused. It is further submitted that had it been the
bribe money, it would not have been received in the account
especially through a UPI transfer. It is further submitted that
applicant/accused is in judicial custody and despite repeated
applications for police custody by the investigating agency, the
CBI has failed to justify the necessity of the applicant’s
continued detention. It is further submitted that
applicant/accused is belonging to very respectable family and
posted as Assistant Commissioner at Ministry of Finance and
having clean antecedents and deep roots in the society. It is
further submitted that applicant/accused is no more required for
the purpose of investigation and the there is no likelihood of
applicant for absconding from the process of law. Ld. Counsel
for applicant/accused prayed for grant of bail.
3) Detailed reply to the bail application has been filed by the
CBI and CBI has strongly opposed the bail application on the
ground that instant case was registered under Section 61 (2) BNS
r/w Section 7, 7A and 12 of PC Act. It is further submitted that
the complainant is an accused in one case being investigated by
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CBI, EO-III and is a complainant in another case being
investigated by the same branch. It is further submitted that
applicant/accused approached the complainant for settlement of
his case and applicant/accused Avnish Kumar also introduced the
complainant to one Ramesh Kumar another CBI officer for
helping in his cases and the said Ramesh Kumar also demanded
Rs. 10 lacs from the complainant namely Himanshu Nanawati.
A-1 Avnish Kumar again met the complainant on 07.04.2025 and
asked him to meet on 08.04.2025 having meeting with the
concerned officers and deciding the bribe amount to the paid.
4) The complainant further alleged that he did not want to
pay the bribe amount to any persons and requested CBI to take
appropriate legal action in the matter. It is further submitted that
the complaint was verified in the presence of independent
witnesses and the verification prima facie revealed commission
of cognizable offences punishable under Section 61 (2) BNS r/w
Section 7, 7A and 12 of PC Act and accordingly, the present FIR
was registered. It is further submitted that during investigation a
trap was laid wherein accused Avnish Kumar was apprehended
for accepting illegal gratification of Rs. 3.5 lacs from the
complainant on behalf of accused Anil Tanwar. It is further
submitted that thereafter applicant/accused was directed to make
a call to Anil Tanwar and during such conversation over
whatsapp call applicant/accused informed accused Anil Tanwar
about the amount paid as token which was acknowledged by
accused Anil Tanwar, hence, it was surfaced that Avnish Kumar
was in active connivance with accused Anil Tanwar and
demanded/accepted the undue advantage on his behalf.
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5) It is further alleged that during verification proceedings
accused Jyotiman Dethan, officer posted in the Department of
Revenue, Ministry of Finance, Government of India had initially
met the complainant on 08.04.2025 in his office and
subsequently accompanied accused Avnish Kumar to meet the
complainant in night in Hotel Hyatt and during the meeting in his
office, applicant/accused demanded an amount of Rs. 50,000/-
from the complainant for favorable consideration of the ED case
which was registered on the basis of the CBI. It is further
submitted that the said transaction was directed to be made
through G-pay and accordingly the complainant was directed to
make the transaction and after sending Rs. 50,000/- through G-
pay, the complainant called applicant/accused Jyotimon Dethan
who confirmed the receipt of the money from the complainant.
6) In the reply investigating agency has also mentioned the
fact that they have been granted police custody by the Hon’ble
High Court vide order dated 25.04.2025, wherein the Hon’ble
High Court has been pleased to grant the police custody for two
days i.e till 28.04.2025 and they have been directed to produce
the accused persons on 28.04.2025 at 02:00 PM. Except the
reference of the order of Hon’ble High Court no new facts has
been brought on record. In the reply, it is also submitted that the
investigation of the present case is at nascent stage. It is
submitted that accused persons are influential person and present
accused is a private person who is having good connections with
the high ups in the different departments of the government.
Hence there is every likelihood that if they are released, they may
influence the witnesses of this case who are proposed to be
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examined. Ld. Counsel for the CBI prayed for dismissal of this
bail application and prayed that they be kept in judicial custody
till the charge sheet is filed.
7) I have heard arguments of Ld. Counsel for
applicant/accused and the Ld. PP for CBI.
8) In his arguments Ld. PP for CBI has submitted that for the
trap proceedings, no such prior permission is required and in
case, if, the prosecuting agency is directed to take prior
permission in such circumstances the whole process of
conducting a trap proceedings will be a futile exercise. It is
submitted by Ld. PP for CBI that the digital data has been
collected by the IO which is required to be confronted with the
accused persons. It is further submitted that investigation of the
present case is at nascent stage and accused persons are to be
confronted with the collected data as well as the statement of
witnesses are yet to be recorded.
9) In support of his arguments Ld. PP for CBI has relied upon
the following judgments :
i) State of Gujrat Vs. Mohan Lal Jitamal Ji Podwal (1982)
2 SCC 364.
ii) State of Maharahtra Anti Corruption Branch Mumbai
Vs. Balakrishna Dattatrya Kumbhar (2012) SCC 384.
iii) Nimmagadda Parsad Vs. CBI (2013) 7 SCC 466.
iv) Devender Kumar Bansal Vs. State of Punjab 2025
LivLaw (SC) 291.
v) Y.S. Jagan Mohan Reddy Vs. CBI, MANU/SC
0487/2013.
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vi) Central Bureau of Investigation Vs. Santosh Karnani
(Crl. Appeal No. 1148 of 2023.
vii) State of Jharkhand Vs. Dhanjay Prakash Gupta (SLP
(Crl.) 10810/2023 date of judgment 07.11.2023.
10) On the other hand Ld. Counsel for applicant/accused has
relied on following judgments :
i) Sanjay Cahndra Vs. CBI reported in (2012) I SCC 40.
ii) Manish Sisodia Vs. Directorate of Enforcement Crl.
Appl. No. 2024 arising out of SLP (Crl.) No. 8772/2024.
11) In his arguments it is submitted by Ld. Spl. PP for CBI that
applicant/accused is actively involved in the crime and he along
with the co-accused Anil Tanwar and Jyothimon Dethan.
Accused Avnish Kumar introduced himself as CBI officer and
also introduce the complainant of the present case with the co-
accused Anil Tanwar. It is submitted that the applicant/accused
was caught red handed while receiving the bribe amount from the
complainant and the applicant/accused has been arrested at the
spot. It is submitted that the accused was directed to made a
controlled call to accused Anil Tanwar and their call were
recorded wherein in the transcript he agreed about the bribed
amount. It is further submitted that case is at the initial stage and
statement of other witness is required by the IO. It is also
submitted by Ld. PP for CBI that the accused is having
connections with the high ups and if the accused is enlarged on
bail there is every apprehension that he may temper with the
evidence and influence the witnesses. Ld. Counsel for CBI
prayed for dismissal of the present bail application.
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12) On the other hand, it is submitted by Ld. Counsel for
applicant/accused that accused has been falsely implicated in this
case and at the initial stage no police custody was granted by the
Court and the accused persons were remanded to judicial
custody. It is further submitted that recovery, if, any has already
been effected from the accused is only in connivance with the
officials of CBI and he has been falsely implicated in this case.
It is further submitted that his presence is no more required for
the purpose of investigation. It is further submitted that in the
present case there is allegation that the accused received bribe
money in his account through G-pay/UPI and it is worth to
mention here that a government official on the higher position
can not be believed to be receiving the bribe money in his
account. In his arguments, it is also submitted by Ld. Counsel
for applicant/accused that the police custody has been granted by
Hon’ble High Court even then nothing incriminating has been
brought on record by the investigating agency and no recovery
has been effected on his instance.
13) I have gone through the record carefully.
14) In the order dated 10.04.2025, it is observed by the Court
that no such data was collected by the investigating agency at
that stage and no concrete reason has been mentioned at that
stage for grant of police custody of accused persons.
15) The investigating agency in their second limb of
arguments has submitted that the judicial custody of the accused
persons is also required to collect the voice samples of the
accused persons as there is a recorded audio conversation which
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is transcripted and same is not filed. Though, the same has been
produced before the Court for perusal.
16) Ld. counsel for accused has relied upon the judgment titled
as Sanjay Chandra (Supra) wherein the Hon’ble Apex Court had
reiterated the principles upheld by it, in case titled Prahlad Singh
Bhatti vs. NCT of Delhi (2001) 4 SCC 280 observed as follows :
“The jurisdiction to grant bail has to be exercised on the
basis of well settled principles having regard to the
circumstances of each case and not in an arbitrary
manner. While granting the 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, behaviour, means
and standing 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 or State and similar other
considerations. It has also to be kept in mind that for the
purposes of granting the 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 it as to whether there is a genuine
case against the accused and that the prosecution will be
able to produce prima facie evidence in support of the
charge. It is not excepted , at this stage, to have the
evidence establishing the guilt of the accused beyond
reasonable doubt”
17) The Hon’ble Apex Court in the judgment titled as
Siddharam Satlingappa Mhetre vs State Of Maharashtra and Ors
cited as AIR 2011 SUPREME COURT 312, wherein the Hon’ble
Apex Court has been pleased to discuss the relevant and
importance of the personal liberty and has been pleased to held as
under :
41. All human beings are born with some unalienable
rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the fact
that these are fundamental for their proper existence and
no other right can be enjoyed without the presence of
right to life and liberty.
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42. Life bereft of liberty would be without honour and
dignity and it would lose all significance and meaning
and the life itself would not be worth living. That is why
"liberty" is called the very quintessence of a civilized
existence.
59. The Fundamental Rights represent the basic values
enriched by the people of this country. The aim behind
having elementary right of the individual such as the
Right to Life and Liberty is not fulfilled as desired by the
framers of the Constitution. It is to preserve and protect
certain basic human rights against interference by the
state. The inclusion of a Chapter in Constitution is in
accordance with the trends of modern democratic
thought. The object is to ensure the inviolability of
certain essential rights against political vicissitudes.
62. This court defined the term "personal liberty"
immediately after the Constitution came in force in India
in the case of A.K. Gopalan Vs. The State of Madras,
AIR 1950 SC 27. The expression `personal liberty' has
wider as well narrow meaning. In the wider sense it
includes not only immunity from arrest and detention but
also freedom of speech, association etc. In the narrow
sense, it means immunity from arrest and detention. The
juristic conception of `personal liberty', when used the
latter sense, is that it consists freedom of movement and
locomotion.
18) In the judgment so relied upon by the Ld. Counsel for
applicant/accused in Manish Sisodia Vs. Directorate of
Enforcement (Supra), the Hon’ble Apex Court has been pleased
to observed in para no. 53 as under :
53. The Court further observed that, over a period of time,
the trial courts and the High Courts have forgotten a very
well-settled principle of law that bail is not to be withheld as
a punishment. From our experience, we can say that it
appears that the trial courts and the High Courts attempt to
play safe in matters of grant of bail. The principle that bail is
a rule and refusal is an exception is, at times, followed in
breach. On account of non-grant of bail even in straight
forward open and shut cases, this Court is flooded with huge
number of bail petitions thereby adding to the huge
pendency. It is high time that the trial courts and the High
Courts should recognize the principle that “bail is rule and
jail is exception”.
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19) In the present case, though, as per the story of prosecution,
the accused has been apprehended while he accepted the bribe
amount of Rs. 50,000/- in his account through G-pay/UPI and he
was produced before the Court after investigation and the
accused persons were remanded to judicial custody instead of
granting any police custody for interrogation. However, as the
investigating agency has challenged the order dated 15.04.2025
passed by this Court declining the prayer for police custody. The
Hon’ble High Court has been pleased to grant two days police
custody to the investigating agency for interrogation and after the
police custody they have been produced by the IO before the
Court. It is also pertinent to mention here that the co-accused
Anil Tanwar and Avnish Kumar has already been enlarged on
bail. The major part of the investigation is completed as the
recovery has been effected from the present accused and they
have been interrogated by the investigating agency in police
custody. In my considered opinion and in view of the judgments
discussed above as relied upon by the Ld. Counsel for
applicant/accused, the applicant/accused is entitled for grant of
bail as he is in judicial custody for the last more than 28 days.
20) The judgments so relied upon by the CBI are of no help for
their case in the facts and circumstances of the present case.
21) In view of the above discussion and taking into
consideration the fact and circumstances and that the accused is
in Judicial custody for the last around more than 28 days and
recovery, if, any has already been effected from the accused.
Despite the fact that the accused has been interrogated in the
police custody nothing new material has been brought on record
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by the IO which indicates that the presence of the accused is no
more required for the purpose of investigation. Though, as the
applicant/accused is a public servant and the investigation being
carried out by the CBI only, his presence can be secured at any
stage during the investigation and during the trial. Accordingly,
keeping in view the facts and circumstances of the present case, I
am of the considered opinion that the applicant/accused is
entitled for grant of bail. Accordingly applicant/accused
Jyotimon Dethan is admitted on bail on furnishing a personal
bond of Rs. 1,00,000/- with one surety of like amount. The
applicant/accused shall abide by the following conditions :
i) The applicant/accused shall surrender his passport before
the Court and shall not leave the country without prior
permission of the Court.
ii) The applicant/accused shall ordinarily reside at in his
place of residence and keep his phone operational at all
times. He shall immediately inform in case of change in
the address by way of an affidavit, to the investigation
officer.
iii) The applicant/accused shall appear before the
investigation officer as and when directed by investigation
officer.
iv) The applicant/accused shall appear and attend before
the Court as and when the matter is taken up for hearing.
v) The applicant/accused shall not directly or indirectly
communicate or visit co-accused persons or acquitted
persons or the witnesses or offer any inducement, threat or
intimidate or influence any of the prosecution witnesses or
tamper with the evidence of the case.
vi) The applicant/accused shall not indulge in any criminal
activity during the bail period.
22) The present bail application is accordingly stands
disposed of. However, it is made clear that no observation made
in this order shall be taken as an opinion on the merits of the
case. Copy of the order be given Dasti. Copy of this order be
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also sent to the Jail Supdt. concerned for information and
compliance.
(MUKESH KUMAR)
Spl. Judge CBI-05 (PC Act)
RADC, New Delhi
08.05.2025.
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