Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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In this case ( titled Upendra Rai vs. Central Bureau of Investigation, available at http://lobis.nic.in/ddir/dhc/MUG/judgement/13-12-2018/MUG11122018BA23262018.pdf and reported at MANU/DE/4591/2018) the petitioner through a petition before the High Court of Delhi (Court) sought bail in FIR under sections 120-B/384 IPC and Section 8 of the Prevention of Corruption Act (PC Act).
The abovementioned FIR was registered on the complaint of Balvinder Malhotra, Director of M/s. White Lion Real Estate Developers Pvt. Ltd. (White Lion Pvt. Ltd.), Mumbai who alleged that the petitioner approached a relative of the promoter of White Lion along with an associate of his who portrayed himself to be a broker of the Income Tax Department. The petitioner pretended that he was a senior journalist and was connected to big media houses. The petitioner had claimed that he had sensitive information from the Income Tax department relating to the raids to be conducted on the companies related/associated with White Lion Pvt. Ltd. and that action could be initiated against them under the new Benami Act. The petitioner demanded huge money to settle the matter with the Income Tax department and to avoid adverse media reporting. Succumbing to his pressure, a consultancy agreement was entered into between the petitioner and White Pvt. Ltd. pursuant to which a sum of Rupees 15,19,50,000/- was paid to petitioner's account from the account of the company. Later, after making enquiries the complainant had realized that the petitioner was a habitual blackmailer, a tout in various government departments including the Income Tax department and hence, terminated the consultancy agreement with the petitioner.
In the Status Report filed by the CBI, besides reiterating these allegations, it was stated that FIR has been registered by the CBI against the petitioner under Sections 420 and 120-B of Indian Penal Code read with Section 13(2) and 13(1)(d) of the PC Act wherein charge-sheet had been filed and the order granting bail by the learned Additional Special Judge has been set aside by this Court observing that the allegations against the petitioner are serious in nature and there is a reasonable apprehension that the petitioner would influence the witnesses. Further, ECIR had also been recorded by the Enforcement Directorate under Sections 3 and 4 of the Prevention of Money Laundering Act (PMLA).
Counsel for the petitioner had submitted that since the petitioner was not a public servant and no public servant has been found to be involved, Section 8 of the PC Act was not attracted. Furthermore, it was submitted that the offence punishable under Section 384 IPC entailed a punishment of imprisonment for a period of maximum three years and the petitioner had been in custody for a period of 5 months and thus should be released on bail.
As per Section 8 of the PC Act
"Taking gratification, in order, by corrupt or illegal means, to influence public servant. Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
The Court held that Section 8 of the PC Act does not require that the solicitation or receipt of gratification for inducing the public servant to do an act or to do a favour or render some service has to be against a specifically named or identified public servant. The moment the petitioner accepts the gratification for the purpose as mentioned in the section irrespective that the same was in conspiracy with a public servant or was transmitted to a public servant, the person would be said to have committed offence under Section 8 of the PC Act. Thus, prima facie the plea of for the petitioner that no offence under Section 8 PC Act is made out and the only offence made out being Section 384 IPC on the allegations which is punishable up to three years imprisonment was rejected.
The Court decided to grant bail to the petitioner by relying on the incontrovertible facts that the petitioner had been custody for nearly 5 months and that no public servant has been identified to be involved with the petitioner. No material evidence was put forth show that the petitioner had influenced the witnesses in the present matter.
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