1

Present
Shri S. Datta Purkayastha,
Sessions Judge,
West Tripura, Agartala.

Bail Application no. 236 of 2019

16.10.2019
Ld. Counsel, Mr. P. Roy Barman and
Ld. Counsel, Mr. Arindam Bhattacharjee are
present for the petitioner along with other
learned counsel.
Ld. P.P. of Hon'ble High Court, Mr.
Ratan Dutta and Ld. P.P. of West Tripura, Mr.
B. Deb are present for the State.
Ld. P.P. has submitted up to date
C/D No.2 & 3 under sealed cover today along
with 2 seized files of Vigilance Enquiry.
C/D Part 1 was earlier submitted by
the prosecution in connection with related
West Agartala P.S. Case No.251 of 2019,
which is still in the custody of the Court.
The allegations as borne in the FIR
are, interalia, that in the year 2008 the
council of Ministers approved the
memorandum of proposal allowing PWD to
award the implementation of various projects
directly to the Public Sector Undertakings at
cost plus basis (limited upto 10% of the
estimated cost) and, to award works to the
well reputed Private Sector Construction
agencies short listed after invitation of
Expression of Interest with pre-determined
conditionalities as well as evaluation of their
technical and financial capabilities,
experience in the respective fields etc.
directly at cost plus basis (limited upto 10%
of the estimated cost). Cost of the projects
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for the purpose was to be assessed based on

the current Schedule of Rates prepared by
State PWD to be updated by them annually in
the month of January of each year as per the
memorandum of proposal placed as
Annexure I to the FIR. It is further alleged in
the FIR that when thereafter the expression
of interests were invited from various PSUs
and private sector Construction Agencies, the
approved clauses were kept ambiguous and
the ceiling limit of 10% of awrd of works was
waived and was not mentioned in the tender
document for committing financial fraud and
misappropriation of huge government money
in collusion with Sri Y.P. Singh, the then
Principal Secretary, PWD and Sri Badal
Choudhury, the then Minister, PWD. As
alleged, as per preliminary assessment, cost
of the projects was 638.30 Crores whereas
the total cost put to tender was Rs.866.44
Crores which was 35.73% above of the total
estimated cost incurring excess expenditure
of Rs.164.27 crores. Further allegations are
that on preliminary assessment, for the works
under 10 packages i.e. 4 nos. bridges
packages, 4 nos. Building packages and 2
nos. Road packages, excess amount of
Rs.20.50 crores was incurred which was
47.20% higher than the estimated cost of
10% above. It has also been alleged that Rule
172 of General Financial Rules, 2005
regarding separate bidding for technical and
financial bids i.e. 'two bid system' was also
not followed and even prior to that Request
for Proposal (for short-RFP under Rule 171,
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GFR) was also not complied rather PWD

directly went for inviting financial bid.
According to the informant, as described in
FIR, aiming to give unfair advantages to the
private construction agencies, PSUs were
given 14 days period for submission of
financial bids whereas private agencies were
given 26 days for the same task and despite
the fact that post tender negotiation is
strictly banned by the Central Vigilance
Commission, said practice was encouraged
under the chairmanship of Mr. Y.P.Singh and
despite having procedural weaknesses, WAB
was persuaded by PWD to overlook the same
as one time measure. It is also alleged that
the then Principal Secretary, PWD, Mr. Y.P.
Singh communicated that the Council of
Ministers was briefed by him on 10.12.2008
regarding tender process followed, bids
selected and SAB/WAB decision regarding
overlooking the procedural weakness as one
time measure vide his note no.2 dated
10.12.2008 (Annexure VI to the FIR) but no
such cabinet briefing/agenda was found in
the memo/minutes of meeting of Cabinet of
that day and in said note no.2, Sri Badal
Choudhury has also signed. Finally, it has
been stated that vital documents and record
including bids, comparison sheet relating to
the finalisation of tenders and award of those
works were also found missing from the office
of the Chief Engineer, PWD (NH) and
separate FIR has been lodged to that effect.
Heard both sides.
Ld. Counsel, Mr. P. Roy Barman
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today has submitted some medical papers of

the petitioner by a firisthi and the
questionaries put to the petitioner during
Vigilance Enquiry Officer by Vigilance Enquiry
Officer and his reply and one unsigned copy
of report of Committee of Public Acounts (for
short - “CPA) by another firisthi.
Before going to the discussion of
submission made by both the parties on the
factual aspects of the case, Ld. P.P., Mr. R.
Dutta raised one question regarding
maintainability of petition U/S 438 Cr.P.C.
before this Court, which is required to be
disposed of first.
He submitted that this Court is a
Special Court under Prevention of Corruption
Act and as per Section 5 (4) of P.C. Act,
Special Judge is to be treated as a Magistrate.
So, this Court cannot function as a Sessions
Judge and as such, petition U/S 438 Cr.P.C. is
not maintainable. He also referred one
citation of Hon'ble Patna High Court decided
in Anil Kumar Vs. State of Bihar in
Criminal Misc.No.19124/14 (Single
Bench) wherein in Para-67 it was observed
that before Sessions Judge, the application
U/S 438 of Cr.P.C. can be filed only in
connection with the matters wherein the
Magistrates having original jurisdiction are
subordinate to him but such application in
connection with any other matter or in
connection with the Special Courts, it is the
High Court before which such application can
directly be filed but in no case, the Courts
having original jurisdiction including the
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Special Judge, can entertain or decide an

application U/S 438 Cr.P.C..
Ld. Counsel, Mr. Roy Barman
submits that he has not filed any petition
before Special Judge, rather the petition was
filed before the Sessions Judge and as such,
the petition is maintainable. He also referred
a decision of Full Bench of Hon'ble Patna High
Court in a reference made by Ravi Ranjan
Sahay, Sessions Judge, Patna, 1993
Cr.L.J. 2436 wherein at Para-37, as per
majority view, it was observed that Special
Judge was entitled to exercise of powers of a
Sessions Judge as provided in the Cr.P.C. in
relation to proceeding under P.C. Act of 1988,
so far they are not inconsistent with the Act
and consequently, Special Judge under P.C.
Act has got exclusive power to entertain an
application for anticipatory bail or for regular
bail.
In view of above said decision, it is
held that the present petition is maintainable.
During hearing, both Ld. Counsel Mr.
P. Roy Barman and Mr. Arindam Bhattacharjee
strenuously argued that the matter was of a
Financial Year 2008-09 and so far the
allegation against the present petitioner
Badal Chowdhury is concerned, as brought in
the FIR, is in the Para -7 of the same wherein
it was alleged that the Principal Secretary,
PWD by his File Note No.2, dated 10.12.2008
mentioned that the Council of Ministers was
briefed in its Meeting dated 10.12.2008
about the overlooking of the procedural
weakness as one time measure as was
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approved by SAB and COM allowed to go

ahead with the same for implementation of
the project and the allegation mainly against
the present petitioner is that he also
approved the said file note though there was
no Cabinet/Memo of Minutes of the meeting
on that issue and he did not even raise any
objection about such file notings. Ld. Counsel
of the petitioner argued that said file note
was processed by a responsible officer of
Principal Secretary rank and even, it was
counter signed by the Chief Secretary and as
a matter of routine work, keeping reliance on
high Officials, he put his signature and by
putting signature in such file note, does not
constitute any offence of misappropriation of
money or even corruption . According to
them, there was no entrustment of money or
distribution of the same by the petitioner and
as such, Section 409 I.P.C. cannot be levelled
against him nor Section 13 of P.C. Act can be
attracted in his case as apart from other
simple allegation, there is no other allegation
of withholding of any vital document or
occupying of any disproportionate assets .
They also submitted that no independent
decision was taken by him in the whole
process but for political rivalry, he has been
targeted in this case. They also argued that
during that period there was huge influx of
fund and as such, to utilize the same,
Government took decision for implementing
the works through PSU and Private Sector
Agencies, which was approved by the Cabinet
and thereafter, tender was duly issued and
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rates were placed before the WAB/SAB which

is the highest body of the Government to
settle up the rate and they after proper
verification approved the same and then
accordingly, work was proceeded to be done.
Ld. Counsel also referred the relevant
decision No.2 of the Meeting of SAB dated
06.12.2008. They also argued that whatever
was done regarding financial utilization and
distribution of the fund in the matter, same
was done by the department i.e. the PWD
Authority and the petitioner being the PWD
Minister, was in no way involved in this
matter. Referring to the unsigned copy of
report of CPA, they submitted that all these
matters were scrutinized by the said CPA
which was duly constituted in the Legislative
Assembly Secretariat and after considering
Audit Report & Report from Department, said
Committee finally approved the matter and
as such, no case of misappropriation or
corruption can be brought out against the
present petitioner. Mr. Bhattacharjee also
referring to some relevant paragraphs of said
report added that though there are mention
that the procedure adopted resulted in extra
expenditure of 3.57 crores but no allegation
was brought against the present petitioner in
this regard and more-so, finally the procedure
was approved by the said Committee. So, the
petitioner is entitled to get the bail. They also
mentioned that Report of Controller & Auditor
General issued in the year 2008-09 and other
subsequent orders, were also laid in the table
of the House on 9th March, 2010, 6th March,
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2012 and so on, as reflected in the said

report of CPA.
Mr. Roy Barman also added that
when said Note No.2 dated 10.12.2008
speaks that matter was briefed to the
Council of Ministers by Principal Secretary,
there was no reason for the petitioner to go
for further enquiry into the matter. He also in
the last part of his submission, referring to a
medical certificate, submits that the
petitioner is a cardiac patient of age 73
years, has been advised to attend AIIMS as
he is seriously ill, said fact may be taken into
consideration. He also submitted that for a
long period, the petitioner was a Minister
without blame. So, there is no chance of his
abscondence and whenever requires, he will
appear before the investigating agency to
face interrogation. He also submitted that at
present, the petitioner is not holding the post
of Minister and as such, there is no scope for
him to cause disappearance of any evidence
by him. Finally, he referred a decision of
Hon'ble Supreme Court in Siddharam
Satlingappa Mhetre V. State of
Maharashtra and Ors. (2011 Cri. L.J.
3905) wherein at para 17 it was observed
that the purpose of incorporation of Section
438 Cr.P.C. was to recognize the importance
of personal liberty and freedom in a free and
democratic country and wisdom of the
Legislature was of the view that an individual
to be presumed to be innocent, till he is
found to be guilty by the Court.
At para 122, further parameters
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were laid down for dealing with the petition

for anticipatory bail which are, as follows:
“i. The nature and gravity of
the accusation and the exact
role of the accused must be
properly comprehended before
arrest is made;
ii. The antecedents of the
applicant including the fact as
to whether the accused has
previously undergone
imprisonment on conviction by a
Court in respect of any
cognizable offence;
iii.The possibility of the
applicant to flee from justice;
iv.The possibility of the
accused's likelihood to repeat
similar or the other offences;
v.Where the accusations have been
made only with the object of
injuring or humiliating the
applicant by arresting him or
her;
vi.Impact of grant of anticipatory
bail particularly in cases of
large magnitude affecting a very
large number of people;
vii.The courts must evaluate the
entire available material
against the accused very
carefully. The court must also
clearly comprehend the exact
role of the accused in the case.
The cases in which accused is
implicated with the help of
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sections 34 and 149 of the

Indian Penal Code, the court
should consider with even
greater care and caution because
over-implication in the cases is
a matter of common knowledge and
concern;
viii. While consering the prayer for
grant of anticipatory bail, a
balance has to be struck between
two factors namely, no prejudice
should be caused to the free,
fair and full investigation and
there should be prevention of
harassment, humiliation and
unjustified detention of the
accused;
ix. The court to consider reasonable
apprehension of tampering of the
witness or apprehension of
threat to the complainant;
x. Frivolity in prosecution should
always be considered and it is
only the element of genuineness
that shall have to be considered
in the matter of grant of bail
and in the event of there being
some doubt as to the genuineness
of the prosecution, in the
normal course of events, the
accused is entitled to an order
of bail.”
From the side of prosecution, it was
argued by Ld. P.P., Mr. R. Dutta that tender of
PSU was opened on 24.09.2008 and tender
for Private Sector Agencies was opened on
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17.10.2008 for which the lowest rate of the

tenders as submitted by the PSU were
already know to the parties and same was
intentionally done to favour the Private
Sector Agencies. Referring to page 10 of
Annexure-2 of the FIR he submitted that
against bridge work, Sl. No.2, 3, 7 & 8 i.e. the
NBCC stood as a lowest tender whereas as
per page no.13, only against Sl. No.2 one
work was awarded to said NBCC and rest of
bridge works were awarded to Private Sector
Agencies though initially, 3 packages were
kept pending out of said 4 packages whereas
NBCC stood as lowest bidder. Referring to
Note No.2 dated 10.12.2008, he submits that
it was a fake note for creation of
misappropriation of money and factually, no
such matter was apprised before the Council
of Ministers. He submits that CPA reports also
supports corruption and as per Section 2,
Clause C of P C Act, he submits that the MLA
and Ministers are also come within the
purview of of Public Servant and as such,
case under P.C. Act is also maintainable
against the present petitioner. He also argued
that as per C/D, one Animesh Das was also
examined by the I.O. who stated that threat
was administered on him regarding the
process initiated at that time and more
important fact is that during vigilance enquiry
it was found that many relevant files were
missing. Lastly he submits that petitioner is a
powerful person and if he is released on bail,
investigation will seriously suffer. Finally he
referred 2 citations, which will be discussed
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later on.

I have gone through the records and

C/D placed before this Court. Prima facie, so
far it is seen that the Council of Ministers
approved the proposal that PWD may be
allowed to award the implementation of
various projects directly to the Public Sector
Undertakings at a cost plus basis (limited up
to 10 % of the estimated cost) and similarly,
PWD was allowed to award works to the well
reputed Private Sector Construction Agencies
short listed after invitation of Expression of
Interest with pre-determined conditionalities
as well as evaluation of their technical and
financial capabilities, experience in the
respect fields etc. Directly at cost plus basis
(Limited upto 10% of the estimated cost).
It was so done as appears as
because, there was huge fund flow for
infrastructural development by Central
Government and State Government and due
to delay in implementation and submission of
Utilization Certificate, State Government was
facing problem in getting further release of
fund and ultimately, this process was
adopted by the State. However, the main
allegation is that the PWD Authority did not
go by said decision of Council of Ministers,
rather go for higher rate above said 10%.
According to FIR, as per preliminary
assessment, estimated cost of the project
was 638.30 crores, whereas total cost put to
the tender was Rs.866.44 crores, which was
above 35.74%.
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As per Annexure III of the FIR, a

chart is submitted showing excess amount
paid (above 10%) in lakh for certain works
which shows total excess payment of
Rs.2050.418 lakh for work of bridge, road and
building under package nos. 1,2,3 & 4.
In note No.2 dated 10.12.2008, Y. P.
Singh, Principal Secretary, PWD mentioned
that the Council of Ministers in its Meeting
dated 10.12.2008 was briefed by him in the
above said subject and the Council of
Ministers, thereafter, gave its go ahead for
implementation of the project and it was
signed by the present petitioner, the then
Chief Secretary and others. Copy of Minutes
of said Meeting dated 10.12.2008 of Council
of Ministers are found in the Vigilance File
and there is no indication in the said Minutes
that any such mater was placed before the
said Council of Ministers. From the said
Minutes it appears that the present petitioner
was also a Member of said Committee, who
was present in the meeting on that day. But
when on the following day said file note was
placed before him, he signed the same
without any objection or any comment. Prima
facie, it is a tacit approval of the note of the
Principal Secretary that Council of Ministers
gave approval for implementation of the
project though in the Minutes of the Meeting
of Council of Ministers, no such approval is
there. The vigilance authority questioned the
petitioner on that point whereto his written
reply in that point was that in the Cabinet
Meeting on 10.12.2008, Council of Ministers
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was concerned for creation of new

wings/department with respect to
PMGSY/Bharat Nirman Works to be headed by
Chief Engineer and other Engineers.
Regarding putting of signature in the said
note, he replied that Cabinet was briefed by
Principal Secretary and Chief Secretary but
he could not remember whether Principal
Secretary had prepared any such note and
showed it to him or not. Thus, practically, no
clear replies came out from him whether
Council of Ministers taken any specific
decision on that point or not though he
himself was present in the meeting.
In the report of CPA, at page 59, it
was mentioned that for the method adopted
regarding implementation of work/works on
cost plus percentage limited upto 10, it was
stated that WAB, which is the highest body of
State approved the negotiated rate but said
reply was not accepted as decision of Council
of Ministers could not be overruled by the
WAB. It was also mentioned in page 58 of the
said document that due to said process
adopted, it resulted in expenditure for 3.57
crores and it was done in unauthorized and
irregular manner. It was also observed at
page 59 of said document that the plea of the
Government that agencies were selected
through EOI with a set of pre-requisite
stringent criteria, was not acceptable since
the record indicated that the department
short listed the agencies diluting their EOI
requirements. However, finally taking into
consideration of reply of the department and
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the oral statement of the representatives of

the department, inter alia, that actual type of
contract as was followed for the instant work
was basically on design and build basis where
cost of award was inclusive of survey, soil
investigation, design, drawings along the
execution in order to reduce the burden of
the department for design, drawings etc. The
difference in extra expenditure was occurred
which may not be termed as unauthorized
and irregular and finally, the Committee
approved the same. Said Committee is
constituted by the application of law by the
Assembly Secretariat and this Court,
therefore, will not pass any comment on the
report regarding its correctness and
reasoning etc. But fact remains that the
matter of putting of signature in the file note
by the present petitioner and others knowing
that there was no decision in the minutes of
council of Ministers regarding any such
approval of policy adopted, was not placed
before the CPA.
In the C/D it is found that the I.O.
has examined one witness who was at that
time an Engineer of PWD and was involved
with the said process and he has stated that
there was violation of norms made by
influential person like Shri Sunil Bhowmik, Y.P.
Singh and the present petitioner and they
were favouring the Private Sector
Construction Agencies and violation of official
norm in inviting tenders was made in
presence of above said persons.
No doubt, there is serious allegation
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brought against the present petitioner and

others regarding misappropriation of huge
amount and FIR was lodged only on
13.10.2019 and the bail application was filed
immediately on 14.10.2019. Thus, it is a very
initial stage of investigation and the matter
whether actually the petitioner
misappropriated any amount or not, is a
matter of further investigation. However,
there are prima facie materials that there
were serious irregularities in dealing with said
huge fund in those projects.
In such a very initial stage of
investigation, it is not possible for this Court
to make even any prima facie observation,
whether the present petitioner was innocent
or not.
Ld. P.P., Mr. R. Dutta referred a
recent decision of Hon'ble Supreme Court in
P. Chidambaram v. Directorate of
Enforcement, 2019 SCC Online 1143
wherein at para 62, it was observed that the
investigation of a cognizable offence and the
various stages thereon including
interrogation of the accused is exclusively
reserved for the investigating agency whose
powers are unfettered so long as the
investigating officer exercises his
investigating powers well within the
provisions of the law and legal bounds. At
para 66, it was observed that investigation
into crimes is the prerogative of the police
and excepting in rare cases, the judiciary
should keep out all the areas of investigation.
Regarding purpose of arrest, at para 75, it
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was further held that ordinarily arrest is a

part of the process of the investigation
intended to secure several purposes and
there may be circumstances in which the
accused may provide information leading to
discovery of material facts and relevant
information and grant of anticipatory bail
may hamper the investigation. At para 73, it
was observed that the legislative intent
behind the introduction of section 438 Cr.P.C.
is to safeguard the individual's personal
liberty and to protect him the possibility of
being humiliated and from being subjected to
unnecessary police custody. But the Court
must also keep in view that a criminal
offence is not just an offence against an
individual, rather the larger societal interest
is at stake. Therefore, a delicate balance is
required to be established between the two
rights-safeguarding the personal liberty of an
individual and the societal interest and it
cannot be said that refusal to grant
anticipatory bail would amount to denial of
the rights conferred upon the appellant under
Art. 21 of the Construction. Regarding
economic offence, at para 79, it was held that
power under section 438 Cr.P.C. being an
extraordinary remedy, has to be exercised
sparingly; more so, in cases of economic
offences. Economic offence stands as a
different class as they affect the economic
fabric of the society and same needs to be
visited with different approach in the matter
of bail (para 82). At para 84, it was observed
that grant of anticipatory bail at the stage of
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investigation may frustrate the investigating

agency in interrogating the accused and in
collecting the uses information and als the
materials which might have been concealed.
He also referred another decision of
Hon'ble Supreme Court in Serious Fraud
Investigation Office V. Nittin Johari and
Another ( 2019 SCC OnLine SC 1178)
wherein referring to another decision of
Hon'ble Supreme Court it was observed that
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 and 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 and 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,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public/State and other similar
considerations.
He also referred another decison
rendered by Hon'ble Supreme Court in State
of A.P. V. Bimal Krishna Kundu and Anr.
(1997) 8 SCC 104 wherein in the given fact
 19

of that case Hon'ble Supreme Court observed

that it was not a fit case for granting bail U/S
438 Cr.P.C.
In view of present position of Law
specially as rendered in P. Chidambaram
(Supra), also considering the prima facie
materials as discussed above and also
considering that the present petition is filed
in a very pre-mature stage i.e. at the very
early stage of investigation, blanket liberty
for a period till completion of trial or at least
till filing of charge sheet, cannot be granted
by allowing said bail petition. Granting of pre-
arrest bail for a limited period is also barred
as per law laid down in Siddharam
Satlingappa Mhetre (Supra).
Situated thus, the petition filed U/S
438 Cr.P.C. is rejected at this stage.
In this case, the petitioner
submitted a petition informing this Court that
after interim bail was granted to him, the
petitioner went to the Police Station on
14.10.2019 at about 9.10 pm with his surety
but for waiting a long period, I.O. did not
appear in the police station and when he
intend to record is appearance at police
station in G.D. Entry, same was refused and
therefore, there was non cooperation from
the I.O.
This Court did not direct the
petitioner to appear in the police station to
submit bail bond , rather direction was given
to the I.O. to release him on bail in the even
of his arrest on furnishing a bond.
Thus, there was no necessity for the
 20

petitioner to go to the police station with the

surety. However, Ld. Counsel Mr. Roy Barman
submits that they have placed the matter
before this Court only for information of the
Court and the petitioner actually went to the
police station in anticipation that if in odd
hour of the night he is arrested, he may not
be able to get surety.
Keep the petition with the record.
Another petition was submitted by
the prosecution praying for a direction to the
petitioner for his personal appearance before
the Court but the Court does not feel any
necessity for personal appearance of the
petitioner in the Court as both the petitioner
as well as State were heard through their
learned counsel. Accordingly, said petition is
also rejected.
I.O. has also submitted a petition on
15.10.2019 in this case praying for police
remand of the petitioner for 7 (seven) days in
case he surrender.
Keep the said petition in the record
of file of West Agartala P.S. Case No.251 of
2019 and keep a photo copy of the same in
this record.
The case is thus disposed of on
contest.
Return all the part of the C/Ds to I.O.
through Ld. P.P. along with a copy of this
order.
Also furnish a copy of this order to
the learned counsel of the petitioner.
Enter the result in the relevant
register.
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Announced.
As dictated
(S.Datta Purkayastha,
Sessions Judge,
West Tripura, Agartala.