IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY
BAIL APPLICATION NO.692 OF 2017
IN
CBI REMAND APPLICATION NO.861 OF 2017
Jaipal Swami, aged 38 yrs.
R/o. Flat No.74, Bldg.No.5, CGS Colony,
Antop Hill, Mumbai.
V/s.
The State (Through CBI/ACB, Mumbai.)
No. RC BA/ 1/2017/A0027­ Mumbai,
dated 20/09/2017
)
)
)..Applicant/Accused No.1
)
)
)..Respondent/CBI, ACB
Appearance :
Ld.Adv. Mr. Sujay Kantawala with Yogesh M.
applicant/accused.
SPP Mr. Fareed for the respondent/CBI, ACB, Mumbai.

Rohira
for
CORAM : H.H. THE SPECIAL JUDGE (CBI)
SHRI VIVEK V. KATHARE
DATE : 28/11/2017 (C.R.NO.53)
ORAL ORDER
1.

The applicant/accused Jaipal Swami, who is IRS Officer
and serves as Deputy Commissioner of Income Tax at Mumbai Division,
has been arrested on alleged demand of illegal gratification other than
legal remuneration in a crime bearing No.RC BA/1/2017/A0027­
Mumbai, registered by CBI, ACB, Mumbai, u/s.7, 12, 13(2) r/w
Sec.13(1)(d) of the Prevention of Corruption Act, 1988 on 20/09/2017.
2.

On the basis of written complaint dated 19/09/2017, made
by Mr. A. Mutthu, the Director of M/s. SAF Yeast Company Pvt. ltd.,
Mumbai, the trap was led and the accused Nos.2 & 3 found accepting
the illegal gratification of Rs. Three Crores on behalf of the present
applicant/accused for passing the Assessment Order in favour of the
complainant.
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3.

As per the prosecution case, during the trap proceeding, on
22/09/2017, the accused Kamlesh Shah made a telephonic call to the
present applicant/accused regarding the receipt of cheques and out of
which, the cheque of Rs.Two Crores & Rs.Nine Lakhs would be
deposited “today” and remaining cheques would be deposited on “4 th ”.
The applicant/accused showed the acceptance of demanded bribe
amount in the form of cheques. In consequence of such demand &
acceptance of bribe amount, the present applicant/accused with two
other accused, who acted as conduit were arrested on 22/09/2017 and
when produced before the Court on 23/09/2017, they were remanded
to PCR till 28/09/2017 and thereafter, taken into Judicial Custody.
4.

It is further contended that this Court had earlier rejected
the bail application filed by the present applicant/accused on
04/10/2017.

However, allowed the bail applications of co­accused
subsequently.
5.

It is contended that now the charge sheet has been filed by
the prosecution and all the necessary searches have been conducted
resulting into seizure of various documents, storage devices etc.
Therefore, presently the custodial interrogation of the present
applicant/accused is not at all warranted.
6.

It is further contended that the applicant/accused is
permanently based in Mumbai, having family and being the sole bread
earning member of the family, he would not abscond if, released on
bail.
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7.

It is further contended that on account of suspension of the
present applicant/accused and his transfer to Kochi, Kerla, now, he will
not be able to attend the office. Hence, the likelihood of him tampering
with the prosecution evidence or influencing the witnesses, is not
possible. Hence, prayed for release on bail.
8.

The respondent/CBI contested the petition by filing detail
Reply by denying all adverse allegations. At the outset, it is contended
that there is prima facie evidence available on record to show the
involvement of the applicant/accused in the serious offence. In the
event of his release on bail, he would tamper with the evidence or
influence the witnesses.

Hence, prayed for rejection of the bail
application.
9.

Heard Ld. Counsels for both the parties at length. The Ld.

Counsel for the applicant/accused submitted that the investigation in
the case is completed in as much as the Investigating Officer has
submitted the charge­sheet in the Court on 18/11/2017. It is further
submitted that the Investigating Officer has conducted all the necessary
searches and seized various documents including files, storage devices
etc. as per Search List dated 22/09/2017. As the case appears to be
based on documents, which are admittedly in possession of
Investigating Agency, therefore, no fruitful purpose would be served by
further detaining the applicant/accused behind the bars. He has further
submitted that the applicant/accused is a permanent resident of
Mumbai and having family to look after. He is the only bread earner in
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the family and in such circumstances, there is no propensity to abscond
nor he would tamper with the evidence.
10.

As against this, it is submitted by the Ld. Counsel for the
CBI that considering the nature of accusations leveled against the
applicant/accused and the severity of punishment provided therefore
and the nature of evidence brought on record by the Investigating
Officer in support of the accusations, the applicant/accused does not
deserve to be released on bail. He has further submitted that there is
reasonable apprehension of the witnesses being tampered with in the
event of his release on bail.
11.

While rejecting the earlier bail application, this Court has
turned down the factual preposition made by the defence that the
applicant/ accused had merely facilitated the business transaction
between the first informant & accused. No.2. Therefore, there is no
propriety in taking a different view at the stage of considering the
subsequent bail application.
12.

Similarly, one of the ground raised in the bail application
that the Income Tax Department has initiated an appropriate
proceeding for default committed by the company of the first informant
and thereafter, the first informant has filed the present complaint within
a week from the date of attachment of the properties by Income Tax
Officers, hence, the FIR is nothing but a personal vendetta against the
applicant/accused.

This preposition was equally turned down while
rejecting the earlier bail application by observing that there is clinching
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proof in respect of the demand & acceptance of bribe amount at the
instance of applicant/accused.
13.

However, while considering the present bail application,
the change in circumstances i.e. filing of the charge­sheet on account of
completion of investigation, needs to be taken into consideration.
Equally, it is also required to consider if, any fruitful purpose is going to
be served by way of detaining the applicant/accused in jail by way of
curtailing his personal liberty.
14.

Hon’ble Apex Court in a case of, “Sanjay Chandra V/s.

Central Bureau of Investigation, (2012) Supreme Court Cases 830”,
has laid down the guiding principles for releasing the accused on bail.
It is held 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”.
15.

Therefore, in determining whether to grant bail, both the
seriousness of the charge and the severity of the punishment vis­a­vis
his availability during the trial & tampering with prosecution evidence
should be taken into consideration. The contention of the Ld. SPP that
considering the gravity of the offence and the punishment provided for
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it and the complicity of the applicant/accused in the commission of
offence, his release on bail would send a wrong signal to the society.
However, as held by the Hon’ble Apex Court in a case of, “Sanjay
Chandra” (supra), “Right to bail is not to be denied merely because of the
sentiments of the community against the accused. The primary purposes
of bail in a criminal case is to relieve the accused of imprisonment, to
relieve the State of the burden of keeping him, pending the trial, and at
the same time, to keep the accused constructively in the custody of the
Court”.
16.

The apprehension of the prosecution that in the event of
release of applicant/accused on bail, he would abscond and tamper
with the prosecution witnesses. In this regard, it is seen from the copy
of office order dated 03/11/2017, submitted by the Ld. Counsel for the
applicant/accused that the applicant/accused has been suspended
consequent to his detention for a period exceeding 48 hours. Further,
the said Officer Order reveals that the applicant/accused has been
transferred to Kochi, Kerala. Thus, certainly the place of work of the
applicant/accused has been changed and the fact that all the relevant
documents have been seized by the Investigating Agency and the same
are sent to CFSL for Expert’s opinion. In the circumstances of the case,
it is not possible for the applicant/accused either to tamper with the
articles so seized or to influence the witnesses as alleged by the
prosecution as statement of witnesses have been recorded. Therefore,
detention in custody pending completion of the trial would cause great
hardship to the applicant/accused. Even considering the facts regarding
the seriousness of the offence and the punishment prescribed for the
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same at the same time the other parameters like the permanent
employment of the applicant/accused, his fix place of abode, the family
to look after and his availability during trial etc. are the factors
weighing for the release of applicant/accused on bail. On account of
completion of investigation in the case and the charge sheet has been
filed in the Court certainly no fruitful purpose will going to serve by
detaining the applicant/accused behind the bars.
17.

The Ld. SPP has relied upon the Judgment of Hon’ble Apex
Court, in a case of, “Y. S. Jaganmohan Reddi V/s. CBI, in Cri. Appeal
No.730/2013”, wherein the Hon’ble Apex Court held even consequent
to the filing of the charge­sheet the Court has rejected the bail
application of the accused. However, it is seen that the CBI in said case,
had filed successive charge­sheets as the investigation was going on and
pending such investigation the Hon’ble Apex Court was pleased to reject
the bail application of the applicant/accused. However, the facts of the
case in hand are different. The Investigating Officer has completed the
investigation and submitted the charge­sheet in the case and therefore,
the ratio cited in the forgoing Judgment is not helpful to the
prosecution.
18.

It is also made clear that in the event it is noticed by the
Investigating Officer that
whilst on bail the applicant/accused has
made any attempt to bring pressure on any of the witnesses of the
prosecution or tamper with the prosecution evidence in any way, then
the Investigating Agency are certainly at liberty to move the Court for
the cancellation of the bail of the applicant/accused but, merely
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detaining the applicant/accused on such apprehension is not fruitful
attempt.
19.

The
apprehension
of
the
prosecution
that
the
applicant/accused being high ranking officer will influence the
prosecution evidence or witnesses and on that count itself the bail
should not be granted to him. However, the status & position of the
applicant/accused can also be a valid consideration to show that the
applicant/accused has roots in a society and is therefore, not flee from
the process of law. Such & other apprehension can be taken care of by
imposing adequate & reasonable conditions while granting him bail.
20.

In view of above, the bail application deserves to be
allowed, in terms of order below :­
ORDER
1. Bail
Application
No.692/2017
in
CBI
Remand
Application
No.861/2017, is hereby allowed.
2. The applicant/accused Jaipal Swami, arrested in Case No. RC
BA1/2017/A00027­Mumbai, dated 20/09/2017, at the instance of
CBI, ACB, Mumbai, be released on bail on his executing P. R. Bond
of Rupees One Lakh only with one or two solvent sureties in the like
amount, on the following conditions :
a. The applicant/accused shall mark his attendance with the
Investigating Officer as & when required under written
intimation by the Investigating Officer, till further orders.
b. The applicant/accused shall furnish his permanent residential
address alongwith documentary proof of his address & cell
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number of himself and his two close relatives and change in
address, if any.
c.

The applicant/accused shall not leave the territory of India
without
prior permission of this Court and surrender his
Passport, if any, to the Registrar Sessions, as condition
precedent for his release on bail.
d. The applicant/accused shall not directly or indirectly make any
inducement, threat or any promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing
such fact to the Court or to any Police Officer or tamper with
the evidence.
e. The applicant/accused shall not indulge into any criminal
activities during the bail.
3. In the event of breach of any of the conditions as above, the
prosecution is at liberty to move the Court for cancellation of bail.
4. Application is hereby disposed off accordingly.
(Pronounced in open Court)
Mumbai:
Date: 28/11/2017
(VIVEK V. KATHARE)
Special Judge (CBI)
Court Room No.53, Gr. Bombay.

Dictated on
: 28/11/2017.
Transcribed on : 30/11/2017.
Signed on
:
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“Certified to be true and correct copy of the original signed order”.
02/12/2017
at about 04.40 p.m.

(Mrs. Vidya Abhijit Mande)
Stenographer (H.G.)
Court Room No.53
Name of the Hon’ble Judge
: Shri. Vivek V. Kathare
(Court Room No.53)
Date of pronouncement of Judgment/Order
: 28/11/2017
Judgment/Order signed by Hon’ble Judge on : 30/11/2017
Judgment/Order uploaded on
: 02/12/2017
at about 04.40 p.m.

….