Gujarat High Court Case Information System
Print
SCR.A/2622/2010 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2622 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRADEEP
N SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
IH SYED for
Applicant(s) : 1,
MR PK JANI, LD.PUBLIC PROSECUTOR for
Respondent(s) :
1-2
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/02/2011
ORAL
JUDGMENT
Rule.
The formal service of notice of Rule is waived by Mr.P.K. Jani,
learned Public Prosecutor for the respondents. The Rule is fixed
forthwith.
By
way of present petition under Articles 226 and 227 of the
Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the CrPC’), the
petitioner has inter alia prayed for quashing and setting aside the
order dated 23rd November 2010 issuing non-bailable
warrant against the petitioner below the application at Mark-1
preferred by the respondent No.2 herein as well as the order dated
13th December 2010 below Mark-5 and Mark-10 passed by the
Special Judge (ACB), Bhuj in connection with an FIR registered vide
I-C.R. No.3/2010 with Rajkot Zone CID Crime Police Station for the
offences punishable under Sections 7, 11, 13(1)(2) and 13(2) of the
Prevention of Corruption Act, 1988.
The
facts of the case in brief are that on 20th February
2008, an FIR came to be lodged vide M.Case No.1 of 2008 with CID
(Crime) Rajkot Zone Police Station in respect of the offences
punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471,
472, 474, 475, 484 and 120-B of the Indian Penal Code, pursuant to
the direction under Section 156(3) of the CrPC.
3.1
On 06th
January 2010, the petitioner came to be arrested in pursuance of the
said FIR for the offences punishable under the provisions of the
Indian Penal Code only. Thereafter, on 11th
January 2010, the petitioner filed an application for bail, which
ultimately came to be rejected by the Sessions Judge. On 19th
February 2010 the Investigating Agency filed an application for
addition of Sections 7, 11 and 13 of the Prevention of Corruption
Act, 1988 (hereinafter referred to as ‘the Act’), which came to be
allowed and the
proceedings of the said case were transferred from the Court of
Chief Judicial Magistrate to the Special Court, Anti Corruption
Bureau. On 27th
February 2010 the custody of the petitioner was handed over to the
Special Court.
3.2 In
pursuance of the same, the petitioner on 03rd
March 2010 filed an application for bail being Criminal Miscellaneous
Application No.604 of 2010 before this Court in respect of the
offences punishable under the provisions of the Indian Penal Code
only. Thereafter, on 11th
March 2010 the Investigating Officer filed an application Exh.73
before the Special Court for recording the statement of the
petitioner, which came to be allowed and the petitioner was
interrogated. Thereafter, on 23rd
March 2010, the petitioner moved an application for temporary bail,
which came to be granted on 26th
March 2010 by the Special Judge, wherein an application for extension
of time was moved, which was rejected by the Special Judge.
3.3 On
31st
March 2010, a separate FIR being I-C.R. No.3/2010 came to be lodged
against the petitioner for the offences punishable under Sections 7,
11, 13(1)(B) and 13(2) of the Prevention of Corruption Act, 1988
before CID (Crime) Rajkot Zone Police Station. Thereafter, on 01st
April 2010 an application was moved by the Investigating Officer for
deletion of Sections 7, 11, 13(1)(B) and 13(2) of the Act from the
FIR being I-C.R. No.1/ 2008 of Rajkot Zone Police Station. On the
same day, Chargesheet No.2/ 2010 came
to be filed against the petitioner in the Court of Chief Judicial
Magistrate, Kutch-Bhuj, for the offences punishable under Sections
200, 203, 217, 465, 466, 468, 471, 484, 406, 409 and 120-B of the
Indian Penal Code. No chargesheet was filed for the offences
punishable under Sections 7, 11, 13(1)(B) and 13(2) of the Prevention
of Corruption Act, 1988 and on the same day i.e. on 01st
April 2010, the Chief Judicial Magistrate issued summons to the
petitioner for the offences punishable under the provisions of the
Indian Penal Code only.
3.4 The
petitioner filed Special Criminal Application No.895 of 2010 before
this Court for quashing of the FIR on 11th
May 2010. Thereafter, an anticipatory bail application was filed by
the petitioner on 15th
June 2010, which was disposed of as ‘not pressed’ by the Special
Judge on 20th
August 2010. Thereafter, on 03rd
September 2010 the petitioner filed Application No.360 of 2010 for
default bail before the Sessions Court. Thereafter, on 06th
September 2010 the Apex Court in Special Leave Petition (Cri) No.4604
of 2010 granted bail to the petitioner in connection with M.Case No.1
of 2008 for the offences punishable under the Indian Penal Code only
and the petitioner was released qua the Indian Penal Code offences
only, on 07th
September 2010. Thereafter, on 13th
September 2010 the default bail application of the petitioner was
rejected by the Special Judge. Thereafter, Criminal Miscellaneous
Application No.11389 of 2010 filed by the petitioner under Section
482 read with Section 167(2)
of the CrPC came to be dismissed on 22nd
September 2010. Thereafter, on 25th
September 2010 another FIR came to be lodged against the petitioner
and others being I-C.R. No.9 of 2010 with the State CID Crime, Rajkot
Zone Police Station for the offences punishable under Sections 420,
406 and 120-B of the Indian Penal Code.
3.5 Thereafter,
on 18th
November 2010, the Investigating Agency filed an application for
issuance of non-bailable warrant against the petitioner in the Court
of Special Judge, Bhuj, wherein it is mentioned that a summons under
Section 160 of the CrPC was issued to the petitioner on 05th
October 2010 and is affixed on the door of his residential address
mentioned in the default bail application. Thereafter, on 06th
October 2010, the Investigating Officer received a communication from
the mother of the petitioner stating that her son is not residing at
Ahmedabad and so not to make any correspondence at her address. In
pursuance of the same, on 13th
October 2010 a summons was affixed at the address of the petitioner
at Gandhinagar i.e. Plot No.465-A, Behind Gayatri Mandir, Sector-1,
Gandhinagar, since his house was closed.
3.6 In
pursuance of the same, on 17th
November 2010 an application came to be filed before the Special
Judge seeking non-bailable warrant against the petitioner, which
ultimately came to be granted on 23rd
November 2010. In the meantime, the petitioner’s advocate agreed that
the petitioner will remain present before the
Investigating Officer on the next date and, therefore, the date of
serving the warrant was kept on 10th
December 2010. However, the petitioner did not remain present.
Instead the petitioner moved an application for cancellation of
non-bailable warrant at Mark-10 on 10th
December 2010 and also filed an application at Mark-5 for granting
him adjournment, which ultimately came to be rejected vide order
dated 13th
December 2010. Hence, present petition.
Mr.I.H.
Saiyed, learned advocate for the petitioner, has argued at length
and submitted that the so-called summons affixed on the house of the
petitioner is undated and not even addressed to the petitioner,
which is not in consonance with the provisions of Section 160 of the
CrPC, which has not been appreciated by the trial Court.
4.1 It
is further submitted that the petitioner cannot be arrested for
second time in connection with the same offence by way of a separate
FIR when he was earlier arrested for the very offence registered vide
M.Case No.1 of 2008. It is also submitted that the third FIR has also
been lodged against the petitioner and, therefore, he may be granted
some time for taking anticipatory bail. It is also submitted that no
reasons have been assigned by the trial Court for issuance of the
non-bailable warrant against the petitioner.
4.2 It
is further submitted that the trial Court ignored the well settled
principle of law that the petitioner cannot be declared to be an
absconder if he is before the Court of law through his counsel by way
of filing writ petitions and Special Leave Petition for exhausting
the remedies available to him under the law.
4.3 It
is also one of the contentions of Mr.Saiyed that the trial Court
ignored the fact while passing the order under challenge that the
petitioner is very well before this Court for quashing of the FIR in
which the non-bailable warrant is issued. He has further submitted
that the intention on the part of the Investigating Agency is mala
fide and politically motivated. It is also argued that the
Investigating Officer has suppressed material facts from the
knowledge of the trial Court that the petitioner was interrogated for
the same offence and his statement was also recorded.
4.4 In
support of aforesaid submissions Mr.Saiyed has relied upon various
decisions of this Court as well as the Apex Court viz. (1) Inder
Mohan Goswami and another v. State of Uttaranchal and others,
reported in (2007) 12 SCC 1; (2) T.T. Antony v. State of Kerala and
others, reported in (2001) 6 SCC 181; (3) State of Haryana and others
v. Dinesh Kumar, reported in (2008) 3 SCC 222; and (4) Kunhayammed v.
State of Kerala, reported in AIR 2000 SC 2587, and relying upon the
same it is prayed that present petition may be allowed.
Mr.P.K.
Jani, learned Public Prosecutor, has pointed out that the order
under challenge in this petition passed by the trial Court is just
and proper. The trial Court has after appreciating the facts and
circumstances of the case and the evidence on record rejected the
applications at Marks-5 and 10 moved by the petitioner. It is
submitted that the trial Court has assigned cogent and convincing
reasons for arriving at the impugned conclusion. It is submitted
that the summons were duly served upon the petitioner with date and
his name reflected on them; that there is no mala fide intention on
the part of the Investigating Agency nor the same is politically
motivated; that the Investigating Officer has not suppressed any
material facts. In support of his submissions, Mr.P.K. Jani has
relied upon the decision of the Apex Court in the case of T.T.
Antony (supra) to the extent it helps the prosecution. In
view of aforesaid it is prayed that present petition may be
dismissed.
Before
proceeding with the matter, it is required to be noted that when
present petition was listed for hearing on 07th February
2011, this Court had suggested the learned advocate for the
petitioner to partly allow the present petition and to remand the
matter and the petitioner was asked to remain present before the
trial Court on a particular date. However, since Mr.P.K. Jani,
learned Public Prosecutor, was not present, the matter was adjourned
to 09th February 2011. On 09th February 2011,
the matter was argued at length by the learned advocate for the
petitioner and the same was treated as part-heard and adjourned to
10th February 2011. Inspite of the same, the learned
advocate for the petitioner Mr.I.H. Saiyed has chosen not to appear
before this Court on 10th February 2011 and since Mr.P.K.
Jani, learned Public Prosecutor was present, he had argued the
matter. Thus, the conduct on the part of the petitioner is required
to be viewed very seriously.
Having
considered the contentions raised by the learned advocates for the
respective parties, averments made in the petition and the
documentary evidence produced on record, it transpires that when the
question as to cancellation of non-bailable warrant is raised, the
first reaction of the Court is to see that an accused is supposed to
cooperate with the Court as well as the Investigating Agency and,
therefore, this Court had suggested, as aforesaid, to the learned
advocate for the petitioner to remand the matter by partly allowing
the same and directing the petitioner to remain present before the
trial Court, which was declined by the learned advocate for the
petitioner. Therefore, prima facie it seems that the petitioner is
trying to while away the time and also trying to overreach the
process of the Court.
7.1
So far as the contention of the petitioner that he was rearrested
for the very offence is concerned, it is required to be noted that
the petitioner was arrested on 06th January 2011 for the
offence punishable under the provisions of the Indian Penal Code in
pursuance of the FIR registered vide M.Case No.1 of 2008. It is
required to be noted that thereafter the Investigating Agency moved
an application for addition of provisions of the Prevention of
Corruption Act, 1988 on 19th February 2010. Thus, the
arrest of the petitioner was qua the offence under the Indian Penal
Code only i.e. qua the FIR being I-C.R. No.1 of 2008. Thereafter, the
second FIR being I-C.R. No.3 of 2010 came to be lodged against the
petitioner on 31st March 2010 and the Investigating Agency
also prayed for deletion of provisions of Prevention of Corruption
Act from the FIR being M.Case No.1 of 2008. Further, chargesheet
No.2 of 2010 in connection with FIR being M.Case No.1 of 2008 came to
be submitted only qua the offences punishable under the provisions of
the Indian Penal Code only. It is required to be noted that no
chargesheet has been submitted qua the offences punishable under the
provisions of the Prevention of Corruption Act. It is required to be
noted that the second FIR has been filed against the petitioner in
respect of the evidence collected during the course of investigation
of the first FIR against the petitioner. Thus, it transpires that the
petitioner was arrested on 06th January 2010 only qua the
offences punishable under the provisions of the Indian Penal Code.
Here it would be beneficial to reproduce the decision of this Court
(Coram : R.H. Shukla, J) rendered on 28th October 2010 in
Criminal Miscellaneous Application No.11389 of 2010 preferred by the
petitioner herein, which is as under :
“The
present application has been filed by the applicant under sec. 167(2)
r/w sec. 482 of Criminal Procedure Code for grant of default bail
challenging the impugned judgment and order passed by the learned
Special (ACB) Judge, Bhuj, Kutch in Criminal Misc. Application No.
360 of 2010 dated 13.9.2010 rejecting such application for grant of
default bail under sec. 167(2) of CrPC on the grounds set out in
detail in the Memo of Application.
2. Learned
Sr. Counsel Mr. Raju for the applicant referred to the papers and the
grounds and submitted that the applicant-accused was arrested on
6.1.2010, was produced before the Magistrate on 6.7.2010 and he has
been arrested in connection with M. Case No. 1/2008 registered with
CID Crime, Rajkot Zone, Bhuj, for the alleged offences under sec.
200, 203, 217, 465, 468, 471, 472, 474, 475, 406, 409 and 120B of
IPC. Thereafter a report was submitted for adding offences under the
Prevention of Corruption Act (hereinafter referred to as ‘the PC
Act’) and thereafter the said report for adding the offences under
the PC Act was withdrawn vide application dated 1.4.2010. Thereafter,
the present FIR being C.R. No. I-3/2010 registered with CID (Crime),
Rajkot Zone, came to be filed for offences under sec. 7, 11, 13(1)(b)
& 13(2) of the PC Act.
3. Learned
Sr. Counsel Mr. Raju submitted that, though a separate FIR has been
filed subsequently, in fact, the applicant was already in the custody
and the report was also made for adding offences under the PC Act and
therefore he would be deemed to have been in the custody even in
respect of the offences under the PC Act for which a separate FIR has
been filed.
4. Learned
Sr. Counsel Mr. Raju referred to and relied upon the judgment of the
Hon’ble Apex Court in the case of State of Maharashtra v. Bharati
Chandmal Varma (Mrs.), reported in (2002) 2 SCC 121, in support
of his submission and submitted that in fact MCOC Act was invoked and
still the period was not reckoned for the purpose of bail under sec.
167(2) of CrPC. He, therefore, submitted that the applicant could be
deemed to be in the custody in respect of the offences under the PC
Act for which a separate FIR is filed and since he has been in
custody beyond the period prescribed by law, he should be released on
bail.
5. Learned
Sr. Counsel Mr. Raju submitted that the second FIR is the same
referring to the similar allegations for which a report for adding
charges for offences under the PC Act was made. He pointedly
referred to this aspect and submitted that though a separate FIR
could be filed if it was a separate transaction, but in the facts of
the present case, it would not be justified and therefore in any case
when the remand was granted for these very charges under the PC Act
were also considered and after the custodial interrogation when he
has been remanded to judicial custody for all the offences and
therefore the second FIR being C.R. No. I-3/2010 for the alleged
offences under the PC Act is misconceived and treating the
applicant-accused deemed to have been in the custody and having
failed to file the charge sheet for these offences under FIR No. C.R.
No. I-3/2010 default bail under sec. 167(2) of CrPC may be granted.
6. Learned
Sr. Counsel Mr. Raju submitted that as the charge sheet is not filed
within the stipulated period, the applicant is entitled to default
bail. He submitted that it is an indefeasible right of the accused to
be released on bail after the expiry of such period prescribed under
sec. 167(2) of CrPC, to which he referred in detail.
7. Learned
Sr. Counsel Mr. Raju referred to and relied upon the judgment of the
Hon’ble Apex Court in the case of Uday Mohanlal Acharya v. State
of Maharashtra, reported in (2001) 5 SCC 453, and submitted that
it is an indefeasible right of the accused and default bail has to
be granted once the charge sheet is not filed within the stipulated
period. He has also referred to and relied upon the judgment of the
Hon’ble Apex Court reported in (2008) 3 SCC 222 in the case of State
of Haryana and ors. v. Dinesh Kumar, and referring to the
observations in Para 21, he tried to emphasize the distinction
between the ‘arrest’ and the ‘custody’ and submitted that the
applicant accused may be deemed to be in the custody even in respect
of the offences under the PC Act in respect of C.R. No. I-3/2010.
8. Therefore,
in substance, Learned Sr. Counsel Mr. Raju emphasized that even
though the applicant is on bail in connection with alleged offences
under sec.200, 203, 217 etc. of IPC in connection with M. Case No.
1/2008, he should be treated as in custody or deemed custody for the
FIR which has been filed subsequently being C.R. No. I-3/2010 for the
offences under the PC Act and as the charge sheet has not been filed
in connection with the subsequent FIR being C.R. No. I-3/2010 within
a period of 60 days, default bail in exercise of discretion under
sec. 167(2) of CrPC should be granted.
9. Mr.
PK Jani, learned Public Prosecutor, referred to the FIR and also
referred to the arrest memo, which is produced at page 20 of the
paper-book. and submitted that as it is evident from the arrest memo,
the applicant has been arrested in connection with the alleged
offences under the IPC in connection with M. Case No. 1/2008.
Learned Public Prosecutor Mr. Jani submitted that it is required to
be mentioned that it was in respect of offences under IPC only. He
pointedly referred to the sequence of events and also the affidavit
filed on behalf of the respondent with the details enclosed produced
on record and submitted that as stated in this, an application was
made to add offences under the PC Act on 19.2.2010 which came to be
withdrawn as per the application dated 1.4.2010 (Annexure-B).
Learned Public Prosecutor Mr. Jani submitted that an application for
bail in the meantime was preferred by the applicant before the
Sessions Court and thereafter an application for bail was preferred
before the High Court being Criminal Misc. Application No. 604 of
2010 which came to be rejected vide order dated 3.3.2010. The said
application was with regard to grant of bail for the alleged offences
under the IPC in connection with M. Case No. 1/2008 registered with
CID Crime, Rajkot Zone. Thereafter, the petitioner again moved an
application under sec. 439 of CrPC for grant of regular bail which
came to be rejected on 30.6.2010 against which he preferred an
application before the Hon’ble Apex Court. Learned Public
Prosecutor Mr. Jani submitted that pursuant to the order of the
Hon’ble Apex Court, the chief Judicial Magistrate, Bhuj, as per the
report produced at page 188, released the applicant on bail which he
pointedly referred and submitted that it was with regard to offences
under sec. 200, 203, 216, 465, 468, 471, 472, 474, 475, 406, 409,
120B of IPC in connection with M. Case No. 1/2008.
10. Learned
Public Prosecutor Mr. Jani also referred to the papers and submitted
that in fact, in the meanwhile, the applicant applied for temporary
bail and thereafter the applicant himself had moved an application
for anticipatory bail under sec. 438 of CrPC in connection with FIR
being C.R. No. 3/2010 registered with CID (Crime), Rajkot Zone, which
was not pressed.
11. Learned
Public Prosecutor Mr. Jani has also referred to the details with
regard to this and submitted that when he has withdrawn the
application for anticipatory bail, the applicant has claimed that he
was not arrested and therefore he moved the application for
anticipatory bail. He further submitted that, admittedly, the
applicant has been released on bail as per the order of the Hon’ble
Apex Court in respect of the alleged offences under IPC in M. Case
No. 1/2008. Learned Public Prosecutor Mr. Jani, therefore, submitted
that, admittedly, the applicant is not in custody and therefore there
is no question of grant of any default bail under sec. 167(2) of
CrPC.
12. Learned
Public Prosecutor Mr. Jani referred to the provisions of sec. 167(2)
of CrPC which reads as under:
“The
Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody
as such Magistrate thinks fit, a term not exceeding fifteen days in
the whole; and if he has no jurisdiction to try the case or commit it
for trial, and considers further detention unnecessary, he may order
the accused to be forwarded to a Magistrate having such jurisdiction:
Provided
that—
(a)
the Magistrate may authorise the detention of the accused person,
otherwise than in the custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period
exceeding–
(i) xxxx
(ii) sixty
days, where the investigation relates to any other offence, and, on
the expiry of the said period of ninety days, or sixty days, as the
case may be, the accused person shall be released on bail if he is
prepared to and does furnish bail, and every person released on bail
under this sub-section shall be deemed to be released under the
provisions of Chapter XXXIII for the purposes of that Chapter.”
He,
therefore, submitted that this provision will come into play provided
the applicant accused is in custody or in jail who can resort to this
provision for grant of bail as the legislature has provided this
safeguard laying down the time-limit for the investigating agency and
also considering the right of the accused that he may not be detained
for long period.
13. Therefore,
he submitted that the submissions with regard to deemed custody are
without any basis and there appears to be some misconception.
Learned Public Prosecutor Mr. Jani also submitted referring to the
details as to the exact nature of allegations made in the FIR filed
subsequently being C.R. No. I-3/2010. Learned Public Prosecutor Mr.
Jani submitted that separate FIRs could be filed for separate
offences like under the PC Act which is a separate and independent
offence. Learned Public Prosecutor Mr. Jani submitted that may be in
respect of the alleged deeds or irregularity committed by the accused
it may have different allegations for separate offences for which
separate FIR is not prohibited under the law.
14. Learned
Public Prosecutor Mr. Jani further submitted that if these
submissions of the applicant were to be accepted, it would amount to
quashing the FIR at this stage, which is not permissible inasmuch as
the petitioner has the option to have a remedy for quashing the
subsequent FIR being C.R. No. I-3/2010 filed for the offences under
the PC Act. However, once having failed to get anticipatory bail, he
has not carried the matter before the higher forum like the High
Court, has not filed the proceedings for quashing the separate FIR
being C.R. No. I-3/2010, has claimed the default bail on the wrong
assumption or presumption that he should be deemed to be in custody
in connection with the subsequent FIR being C.R. No. I-3/2010 for the
alleged offences under the PC Act, though, in fact, he is already on
bail, and he is not in the custody. He submitted that there is no
provision for deemed custody which is sought to be canvassed and
therefore when the applicant is not at all in the custody, the
provision sec. 167(2) would not be attracted and the present
application deserves to be rejected.
15. In
rejoinder, learned Sr. Counsel Mr. Raju referred to the papers and
submitted that if the person is arrested, he has to be produced
before the Magistrate within 24 hrs. and thereafter he would be
granted regular bail or default bail. He submitted that as the
applicant accused was arrested earlier and regular bail has been
granted, the charges for the offences are the same for which even a
report was made and subsequently a separate FIR has been filed and,
therefore, he has to be treated as deemed to have been in custody
even for the offences under the PC Act in C.R. No. I-3/2010, and as
there is no charge sheet filed within the stipulated period of 60
days, the petitioner would be entitled to be released on bail under
sec. 167(2) of CrPC as it is an indefeasible right.
16. In
view of rival submissions, it is required to be considered whether
the present application can e entertained or not.
17. As
it transpires from the facts, admittedly, the applicant has been
released pursuant to the order of the Hon’ble Apex Court in SLP
(Cri.) No. 6166 of 2010 vide order dated 16.9.2010 and he has been
enlarged on bail for which the report is also produced. It clearly
refers to the fact it was in connection with M. Case No. 1/2008 for
the alleged offences under the IPC. Further, even in an application
for bail being Criminal Misc. Application No. 4604 of 2010 after
charge sheet before the High Court, the application itself makes it
clear that it was preferred under sec. 439 for bail in connection
with M. Case No. 1/2008 registered with CID Crime, for the alleged
offences under sec. 200, 203, 217, 465, 468, 471 etc. of IPC.
Admittedly, the applicant has not been in custody. Admittedly, the
applicant had preferred an application for anticipatory bail being
Criminal Misc. Application No. 237 of 2010 before the Special Judge
(ACB), Kutch at Bhuj under sec. 438 in connection with C.R. No.
I-3/2010 registered with CID Crime, Rajkot Zone, for the alleged
offences under the PC Act, which has been withdrawn by him.
18. Therefore,
as provided in sec. 167(2), which is known as default bail, it
presupposes that the person has to be in custody. This provision has
been made to safeguard the right of the accused that he is not
detained beyond a prescribed period obliging the investigating agency
to complete the investigation and file charge sheet within the
stipulated period as provided in Sec. 167(2). On a closer
examination of this provision, which has been referred to by both the
sides, the proviso makes it clear that the Magistrate may authorise
the detention of the accused otherwise than in the custody of police,
that is, judicial custody, beyond the period on the ground mentioned
therein. But he wording clearly suggests “no magistrate shall
authorize detention of the accused person in custody under this
chapter for a total period exceeding
(i)
xxxxxx
(ii)
sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days,
as the case may be, the accused person shall be released on bail if
he is prepared to and does furnish bail, and every person
released on bail under this sub-section shall be deemed to be
released under the provisions of Chapter XXXIII for the purposes of
that Chapter.” (emphasis supplied)
This
itself would suggest that the person has to be in judicial custody
before this provision could be invoked.
19. The
submissions made by learned Sr. Counsel Mr. Raju referring to the
facts in the present case with much emphasis that the applicant
should be deemed to have been in custody in respect of the subsequent
FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone,
for the alleged offences under the PC Act is a novel argument without
any basis or any provision. Further, if the submissions were to be
accepted, at the most, initially when the report was made for adding
offences under the PC Act in M. Case No. 1/2008 and thereafter it was
withdrawn, and separate FIR has been filed being C.R. No. I-3/2010
for the alleged offences under the PC Act, it may lead to a recourse
for appropriate remedy as may be advised. Further, the proceedings
for quashing such FIR is a different aspect which the petitioner may
have the remedy or he could have raised objection at that time when
the report for addition of offences under the PC Act in M. case No.
1/2008 was sought to be withdrawn. The same has not been challenged.
20. The
conduct of the applicant is also required to be appreciated that
thereafter when he has filed regular bail application before the High
Court as well as before the Hon’ble Apex Court, he has confined
the application for bail under sec. 439(2) for the offences under IPC
in connection with M. Case No. 1/2008 and not a whisper has been made
with regard to this aspect. Even thereafter he has filed
anticipatory bail application under sec. 438 before the Special Judge
being Criminal Misc. Application No. 237 of 2010 in connection with
the subsequent FIR being C.R. No. 3/2010 registered with CID Crime,
Rajkot Zone, which has been withdrawn. If there was any
misconception, he could have taken further recourse as may be advised
for anticipatory bail and in fact it would suggest that the applicant
petitioner has also admitted about the separate FIR for the alleged
offences under the PC Act against him.
21. Therefore,
when he could not either pursue or could not easily convince the
court for grant of anticipatory bail, it was withdrawn, and the
matter rested there. Now, in the guise of such application for
default bail under sec. 167(2), it cannot be permitted to be argued
that he is deemed to have been in custody in connection with the
separate FIR being C.R. No. I-3/2010 registered with CID Crime,
Rajkot Zone when he was in custody for the offences under IPC in
connection with M. Case No. 1/2008. This deeming fiction as sought
to be canvassed is not permitted in law and there is no such
provision shown. The reference made to the judgment of the Hon’ble
Apex Court in the case of State of Maharashtra v. Bharati Chandmal
Varma (Mrs.) @ Ayesha Khan (supra) stands on a different
footing and it will not have application to the facts of the present
case as there it was a case with regard to calculation of the period
for the purpose of default bail under sec. 167(2) after the MCOCA was
invoked and observations have been made in that context, but there it
was not the fact that the petitioner was not in the custody. In the
facts of the present case, the petitioner is not at all in the
custody and therefore the provisions of sec. 167(2) will not have any
application.
22. While
discussing the provisions of sec. 438 & 429 of CrPC, in its
judgment in the case of Sunita Devi v. State of Bihar and anr.
reported in AIR 2005 SC 498, the Hon’ble Apex Court has refeferred
to this aspect of custody as to when the person can invoke the
provisions of sec. 438 and 439. It is also made clear that once the
person is in custody provisions of sec. 439 would apply. It has been
specifically observd in Para 8 that,
“It
is clear from a bare reading of the provisions that for making an
application in terms of Seoction 439 of the Code a person has to be
in custody. Section 438 of the Code deals with “Direction for
grant of bail to person apprehending arrest”.
Therefore,
as it has been observed anticipatory bail is granted in anticipation
of arrest in non-balilable cases, whereas sec. 439 will come into
play when the person is in custody. Further, it has been observed in
Para 16,
“Since
the expression “custody” though used in various
provisions of the Code, including Section 439, has not been defined
in the Code. It has to be understood in setting in which it is used
and the provisions contained in Section 437 which relates to
jurisdiction of the Magistrate to release an accused on bail under
certain circumstances which can be characterized as “in
custody” in a generic sense. The expression “custody”
as used in Section 439, must be taken to be a compendious expresion
referring to the events on the happening of which Magistrate can
entertain bail petition of an accused.”
23. Again,
it has been observd that “the fundamental requirement is that
the accused should be in custody.” The provisions of sec.
167(2) which in turn provide that the person has to be in custody and
therefore such provision will not be attracted in the facts of the
case.
24. In
the facts of the present case, it cannot be said that merely because
the bail is granted in connection with one FIR, the applicant should
be deemed to have been in custody in connection with another FIR
particularly when anticipatory bail has been withdrawn. Therefore, in
connection with the second FIR being C.R. No. I-3/2010 registered
with CID Crime, Rajkot Zone, the provisions of sec. 167(2) for
default bail would not be attracted. It is not even the case of the
applicant that the separate FIR being C.R. No. I-3/2010 is not
maintainable or that second FIR could not be filed. Even if it is
so, the remedy lies elsewhere for appropriate steps as may be
advised, but sec. 167(2) will not be attracted.
25. It
is well accepted by judicial pronouncements that there could be
separate FIRs for separate offences. A useful reference can be made
to the observations made by the Hon’ble Apex Court in the
judgment in the case of Nirmal Singh Kahlon v. State of Punjab &
ors. reported in(2009) 1 SCC 441 where the Hon’ble Apex
court has quoted earlier judgment of 3-Judge Bench of the Apex Court
in the case of Upkar Singh v. Ved Prakash, reported in (2004)
1 SCC 292.
26. Therefore,
in view of the aforesaid discussion with regard to the rival
submissions and the provisions of sec. 167(2) of CrPC it will not
have any application as the applicant cannot be said to be in custody
as sought to be canvassed on the basis of the deemed custody and in
fact he is granted regular bail as discussed hereinabove. Therefore,
when he is not at all in the custody, the provisions of sec. 167(2)
of CrPC would not be attracted and the present application deserves
to be rejected and accordingly stands rejected. Rule is discharged.”
Thus,
even on perusal of the said decision, it is crystal clear that the
petitioner was not rearrested for the very offence. Hence, the
contention of the petitioner that he was rearrested is devoid of any
substance and merit.
7.2 So
far as the contention of the petitioner that the so-called summons
affixed on the house of the petitioner is undated and not even
addressed to the petitioner, which is not in consonance with the
provision of Section 160 of the CrPC is concerned, it is required to
be noted that the copy of the summons which has been placed on record
and which the petitioner has at present is an “Office Copy”,
which does not bear the date and name of the petitioner. In this
respect, Mr.Jani has submitted that the original summons does bear
the name of the petitioner as well as the specific date. Mr.Saiyed is
not in a position to discard the said contention raised by the
learned Public Prosecutor. In fact and in reality, the trial Court
had perused the copy of the original summons and passed the order.
Thus, it transpires that the original summons was bearing date as
well as the name of the petitioner. Hence, this contention of the
petitioner also does not merit acceptance.
7.3 Further,
it is required to be noted that it is not the Investigating Officer
but the petitioner who has suppressed material facts from the
knowledge of the trial Court. The petitioner had shown his addresses
to be of Ahmedabad as well as Gandhinagar in all his applications
before different Courts of law and when the summons were issued at
the address of Ahmedabad as mentioned in one of the applications of
the petitioner, the mother of the petitioner has communicated that
the petitioner is not residing at the said address of Ahmedabad.
Thus, the conduct of the petitioner is manifest. Thus, either the
petitioner or his mother is making a false statement and they are
trying to play legal jugglery only with a view to avoid consequences
of the summons. It is required to be noted that mere allegation of
mala fide will not vitiate the action on the part of the
Investigating Agency. The petitioner has been facing charge of
serious offences against him. As per the case of the prosecution, the
petitioner was using two unofficial ‘SIM’ cards for which the payment
was made by a private company, which is not a minor offence.
7.4 It
is pertinent to note that even this Court while dealing with Criminal
Miscellaneous Application No.895 of 2010 filed by the petitioner
under Section 482 of the CrPC for quashing of the very FIR i.e.
I-C.R. No.3 of 2010, on 10th January 2011 , has observed
as under :
“1.
Petitioner is original accused. He seeks quashing of complaint
bearing I-C.R. No.3 of 2010 filed before C.I.D. Crime, Rajkot Zone
Police Station on 31.3.2010.
2.
Brief facts are as follows:
2.1
Petitioner is an IAS Officer of Gujarat cadre. A complaint bearing
M.Case No.1 of 2008 was filed before Rajkot Zone CID Crime, Rajkot
alleging offences punishable under Sections 200, 203, 217, 465, 466,
467, 468, 471, 472, 474, 475, 484 and 120-B of Indian Penal Code. In
connection with the said M.Case No.1 of 2008, FIR 1 of 2008 was
registered before the Bhuj Police Station. Primarily allegations
contained in the said complaint pertained to land alloted by the
petitioner after the earthquake of January, 2001 when the petitioner
was posted as Collector of Kachchh district. The complaint alleges
several irregularities in allotment of such lands in favour of public
trusts and other persons and entities.
2.2 While
the investigation into the said complaint bearing M.Case No.1 of 2008
was going on, an application came to be filed before the concerned
Magistrate by the Investigating Officer on 19.2.2010 stating that
while investigation into the said complaint, the Investigating
Officer had collected call details of two mobile numbers 98240 01729
and 99251 99749. It was revealed that the sim cards of the said
numbers were in the name of the company called Ratan Enterprise Ltd.
and Wellspan respectively. It was further revealed that the telephone
bills of Rs.46,554/- and Rs.2,26,036/- were borne by such companies
though telephone was used by the petitioner. It was thus alleged that
petitioner procured such mobile sim cards from the companies and used
them for 5 years and bills were paid by the companies. The
Investigating Officer, therefore, requested that the offence under
Sections 7,11 and 13 of Prevention of Corruption Act also be added to
the FIR being investigated into.
2.3 It
is the case of the petitioner that pursuant to the said report filed
by the Investigating Officer, the investigation was carried out
against the petitioner not only with respect to offences as
previously disclosed but also with respect to the offences punishable
under Prevention of Corruption Act added subsequently. In-fact case
was on account of addition of provisions of Prevention of Corruption
Act transferred to Judge, Special Court, Bhuj. Petitioner has
produced communication dated 11.3.2010 from the Investigating Agency
to the Special Court seeking permission to record further statement
of the witnesses in connection with Mobile Telephone numbers. It is
the case of the petitioner that such interrogation was permitted and
carried out and statements of the petitioner and other co-accused
were recorded.
2.4 At
that stage, application came to be filed before the Special Court on
1.4.2008 by the Investigating Agency contending inter-alia that the
offence punishable under Sections 7,11 and 13 of the Prevention of
Corruption Act are relatable only to the present petitioner whereas
in the M.Case No.1 of 2008 there are offences punishable under IPC
involving other accused as well. It was, therefore, pointed out that
against the present petitioner separate complaint bearing I-C.R.No.3
of 2010 has already been lodged after necessary permission from the
Additional Director General of Police. Sections 7, 11 and 13 of the
Prevention of Corruption Act which have been added in M.Case No.1 of
2008 be permitted to be deleted.
2.5 On
such application, learned Special Judge passed an order on 1.4.2010
ordering the application to be kept with original FIR and report to
the effect that Prevention of Corruption Act was added erroneously.
3. It
is the case of the petitioner that subsequent FIR bearing I-C.R.No.3
of 2010 was wholly impermissible. Petitioner has, therefore,
questioned legality thereof primarily on two grounds.
(I) Contention
of the petitioner is that for the same set of events two FIRs cannot
be registered. Counsel for the petitioner submitted that previously
M.Case No.1 of 2008 was initiated in which later on provisions under
Prevention of Corruption Act were added. Subsequently, however,
separate FIR bearing I-C.R.No.3 of 2010 was filed simultaneously
requesting the Special Court to delete the provisions of Prevention
of Corruption Act case arising out of M.Case No.1 of 2008.
(II)
Second contention of the counsel for the petitioner was that entire
investigation was carried out in the case arising out of M.Case No.1
of 2008 including for the offence punishable under the Prevention of
Corruption Act. Further or fresh investigation would amount to abuse
of process of Court. Heavy reliance was placed in the case of
T.T.Antony v/s. State of Kerala and Ors. reported in (2001)
6 SCC 181; wherein, the Apex Court made following observations.
“19.
The scheme of the Cr.P.C. is that an officer-in-charge of a Police
Station has to commence investigation as provided in Section 156 or
157 of Cr.P.C. on the basis of entry of the First Information Report,
on coming to know of the commission of a cognizable offence. On
completion of investigation and on the basis of evidence collected he
has to form opinion under Sections 169 or 170 of Cr.P.C., as the case
may be, and forward his report to the concerned Magistrate under
Section 173(2) of Cr.P.C. However, even after filing such a report if
he comes into possession of further information or material, he need
not register a fresh FIR, he is empowered to make further
investigation, normally with the leave of the Court, and where during
further investigation he collects further evidence, oral or
documentary, he is obliged to forward the same with one or more
further reports; this is the import of sub-section (8) of section 173
Cr.P.C.
20.
From the above discussion it follows that under the scheme of the
provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of
Cr.P.C. only the earliest or the first information in regard to the
commission of a cognizable offence satisfied the requirements of
Section 154 Cr.P.C. Thus there can be no second FIR and consequently
there can be no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the same
occurrence or incident giving rise to one or more cognizable
offences. On receipt of information about a cognizable offence or an
incident giving rise to a cognizable offence or offences and on
entering the FIR in the station house diary, the officer-in-charge of
a Police Station has to investigate not merely the cognizable offence
reported in the FIR but also other connected offences found to have
been committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section 173 of
the Cr.P.C.
21 to 26 xxxx—xxxx
27.
A just balance between the fundamental rights of the citizens under
Articles 19 and 21 of the Constitution and the expansive power of the
police to investigate a cognizable offence has to be struck by the
Court. There cannot be any controversy that sub-section (8) of
Section 173 Cr.P.C. empowers the police to make further
investigation, obtain further evidence (both oral and documentary)
and forward a further report or reports to the Magistrate. In
Narangs’ case (supra) it was, however, observed that it would be
appropriate to conduct further investigation with the permission of
the Court. However, the seeping power of investigation does not
warrant subjecting a citizen each time to fresh investigation by the
police in respect of the same incident, giving rise to one or more
cognizable offences, consequent upon filing of successive FIRs
whether before or after filing the final report under Section 173(2)
Cr. P. C. it would clearly be beyond the purview of Sections 154 and
156 Cr. P. C. nay, a case of abuse of the statutory power of
investigation in a given case. In our view a case of a fresh
investigation based on the second or successive FIRs, not being a
counter case, filed in connection with the same or connected
cognizable offence alleged to have been committed in the course of
the same transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 Cr. P. C. or under Article
226/227 of the Constitution”.
4.
On the other hand, learned Public Prosecutor appearing on advance
copy opposed the petition contending that both the incidents namely
first involved in M.Case No.1 of 2008 and the other referred to in
I-C.R.No.3 of 2010 are entirely different and distinct. He submitted
that investigation is still going on. The petitioner is yet to be
interrogated. He further pointed out that M.Case No.1 of 2008 has
culminated into filing of the charge-sheet and penal provisions
included are only those punishable under IPC. Powers of quashing,
therefore, be not exercised.
5.
Having heard the learned advocates for the parties and having
perused the documents on record, it clearly emerges that M.Case No.1
of 2008 refers to alleged irregularities in land deal and the
illegality committed in allotment of government land in and around
Bhuj town after the earthquake of January, 2001, when the petitioner
was posted there as Collector of the district. Complaint filed before
learned CJM, Bhuj who ordered investigation and accordingly M.Case
No.1 of 2008 was registered. In the said complaint, there is no
reference or even connection to any alleged use of Mobile phones by
the petitioner for which the bills were allegedly paid by the private
companies.
6.
On the other hand, the complaint bearing I-C.R.No.3 of 2010 is
confined only to allegations that petitioner while discharging his
duties as Collector, Kachchh had procured two mobile sim cards from
private companies and for which for nearly 5 years the telephone
bills were paid by the said companies.
7.
In nutshell, the allegations contained in both the complaints are
totally different and distinct. Both the complaints relate to
different allegations and different alleged irregularities and
illegalities. It cannot be stated that I-C.R.No.3 of 2010 pertains to
or arise out of same set of allegations contained in M.Case No.1 of
2008. The first contention of the petitioner that for the same event
two separate FIRs are registered, must be rejected. With respect to
second contention that the investigation is completed in the M.Case
No.1 of 2008 with respect to all allegations, it may be recorded that
the report dated 1.4.2010 on the basis of which the provision of
Prevention of Corruption Act were dropped / deleted from M.Case No.1
of 2008 itself suggests that the investigation was not fully
completed. It may be noted that the petitioner with the permission of
the Court was interrogated by the Investigating Officer, however,
that itself would not indicate that the entire investigation is
carried out and completed.
8.
If at all, I am of the opinion that initial step of the State to add
the provisions of Prevention of Corruption Act in existing complaint
bearing M.Case No.1 of 2008 was wholly erroneous. Ex-facie there
is no direct link between the two set of allegations. As already
noted, M.Case No.1 of 2008 pertains to alleged involvement of the
petitioner in irregularities of allotment of Government land as a
Collector. I-C.R.No.3 of 2010 pertains to alleged use of mobile
phones by the petitioner at the cost of the private companies. In
report dated 1.4.2010 filed by Investigating Agency before the
Special Court also it has been stated that as there is no revelation
that the allegation of misuse of mobile phones had any link
with allotment of land, which is subject matter of M.Case No.1 of
2008.
9.
In the case of T.T.Antony (supra), the Apex court came to the
conclusion that there can be no second FIR and no fresh investigation
on receipt of every subsequent information in respect of the
cognizable offences. In the present case, facts are vitally
different.
10.
I am, therefore, of the opinion that the investigation in I-C.R.No.3
of 2010 cannot be scuttled. Quashing petition is therefore
dismissed.”
(Emphasis
Supplied)
Even
on perusal of the aforesaid decision of this Court in respect of the
very offence i.e. I-C.R. No.3 of 2010, it transpires that this Court
in the aforesaid decision has also prima facie accepted the case of
the prosecution.
So
far as the decision of the Apex Court relied upon by the learned
advocate for the petitioner in the case of Inder Mohan
Goswami (supra), especially paragraphs 54, 55 and 56,
wherein it is held that the Court must very carefully examine
whether the criminal complaint or FIR has not been filed with an
oblique motive. The learned advocate for the petitioner is not able
to point out any thing from the record as regards mala fide as
alleged. Here in the present case, the trial Court after
ascertaining all the facts and circumstances of the case as well as
evidence on record had issued the summons and thereafter,
non-bailable warrant. Thus, the facts of the present case are
materially different.
8.1
The learned advocate for the petitioner has relied upon the decision
of the Apex Court in the case of T.T.Antony (supra),
to the extent that the Apex court came to the conclusion that there
can be no second FIR and no fresh investigation on receipt of every
subsequent information in respect of the cognizable offences. In the
present case, facts are vitally different.
8.2 In
the case of State of Haryana (supra), the Apex Court
has held that the expression ‘arrest’ has neither been defined in
CrPC nor in Indian Penal Code or any other enactment dealing with
criminal offences. However, from Sections 46(1) and (2) of the CrPC,
this much is clear that in order to make an arrest the police officer
or other person making the same shall actually touch or confine the
body of the person to be arrested, unless there be submission to the
custody by word or action. The said decision would not be of any help
to the petitioner since the facts of the present case are materially
different.
8.3 In
the case of Kunhayammed (supra), the Apex Court has
held that the dismissal of a Special Leave Petition in limine by a
non-speaking order does not justify any inference that by necessary
implication the contentions raised in the Special Leave Petition on
the merits of the case have been rejected by the Supreme Court and
that such dismissal of the Special Leave Petition will not preclude
the party from moving the High Court for seeking relief under Article
226 of the Constitution of India. Here it is pertinent to note that
the petition before the Supreme Court was withdrawn by the
petitioner. Thus, the decision rendered by the High Court on 28th
October 2010 is binding to the parties.
Mr.P.K.
Jani, learned Public Prosecutor, has also relied upon a decision in
the case of T.T. Antony (supra). Here it would be
beneficial to reproduce the relevant paragraph of the said decision
as under :
“20.
… … … On receipt of information about a cognizable offence or
an incident giving rise to a cognizable offence or offences and on
entering the FIR in the station house diary, the officer in charge
of a police station has to investigate not merely the cognizable
offence reported in the FIR but also other connected offences found
to have been committed in the course of the same transaction or the
same occurrence and file one or more reports as provided in Section
173 CrPC.”
(Emphasis
Supplied)
It
is required to be noted that the trial Court while dealing with the
said applications at Marks-5 and 10, has relied upon a decision of
this Court in the case of Ajendraprasad Narendraprasad Pandey
v. State of Gujarat, reported in 2006(2) GLH 412, and
passed the order dated 23rd
November 2010.
In
view of aforesaid and in light of the above cited decision of the
Apex Court relied upon by the learned Public Prosecutor, I am of the
opinion that the view taken by the trial Court is just and proper.
The trial Court has assigned cogent and convincing reasons for
arriving at the conclusion. Over and above the reasons assigned
hereinabove, I adopt the reasons assigned by the trial Court and do
not find any illegality much less any perversity in the findings
recorded by the trial Court. No case is made out to interfere with
the findings recorded by the trial Court. It is required to be noted
that the trial Court has after hearing the parties and assigning
cogent and convincing reasons rejected the applications of the
petitioner at Marks 5 and 10. Hence, present petition deserves to be
dismissed.
For
the foregoing reasons, present petition fails and is, accordingly,
dismissed. Rule is discharged. Interim relief stands vacated.
However,
with a view to ascertain the bona fides of the petitioner and to put
the State machinery in a right direction in criminal proceedings, in
the interest of justice, the order dated 23rd November
2010, which was stayed by this Court till date, is kept in abeyance
upto 17th February 2011, on condition that the petitioner
will appear before the concerned trial Court on that day. It is
clarified that no extension will be granted, if the petitioner does
not comply with the aforesaid order.
(K.S.
Jhaveri, J)
Aakar
Top