{"id":126118,"date":"2011-02-11T00:00:00","date_gmt":"2011-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pradeep-vs-state-on-11-february-2011"},"modified":"2016-08-28T22:26:12","modified_gmt":"2016-08-28T16:56:12","slug":"pradeep-vs-state-on-11-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pradeep-vs-state-on-11-february-2011","title":{"rendered":"Pradeep vs State on 11 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pradeep vs State on 11 February, 2011<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCR.A\/2622\/2010\t 34\/ 34\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCRIMINAL APPLICATION No. 2622 of 2010\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI\n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================================\n\n \n\nPRADEEP\nN SHARMA - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nIH SYED for\nApplicant(s) : 1, \nMR PK JANI, LD.PUBLIC PROSECUTOR for\nRespondent(s) :\n1-2 \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 11\/02\/2011\n \n\nORAL\nJUDGMENT<\/pre>\n
\tRule.\n<\/p>\n
\tThe formal service of notice of Rule is waived by Mr.P.K. Jani,
\n\tlearned Public Prosecutor for the respondents. The Rule is fixed
\n\tforthwith.\n<\/p>\n
\tBy
\n\tway of present petition under Articles 226 and 227 of the
\n\tConstitution of India read with Section 482 of the Code of Criminal
\n\tProcedure, 1973 (hereinafter referred to as ‘the CrPC’), the
\n\tpetitioner has inter alia prayed for quashing and setting aside the
\n\torder dated 23rd November 2010 issuing non-bailable
\n\twarrant against the petitioner below the application at Mark-1
\n\tpreferred by the respondent No.2 herein as well as the order dated
\n\t13th December 2010 below Mark-5 and Mark-10 passed by the
\n\tSpecial Judge (ACB), Bhuj in connection with an FIR registered vide
\n\tI-C.R. No.3\/2010 with Rajkot Zone CID Crime Police Station for the
\n\toffences punishable under Sections 7, 11, 13(1)(2) and 13(2) of the
\n\tPrevention of Corruption Act, 1988.\n<\/p>\n
\tThe
\n\tfacts of the case in brief are that on 20th February
\n\t2008, an FIR came to be lodged vide M.Case No.1 of 2008 with CID
\n\t(Crime) Rajkot Zone Police Station in respect of the offences
\n\tpunishable under Sections 200, 203, 217, 465, 466, 467, 468, 471,
\n\t472, 474, 475, 484 and 120-B of the Indian Penal Code, pursuant to
\n\tthe direction under Section 156(3) of the CrPC.\n<\/p>\n
3.1
\n \tOn 06th
\nJanuary 2010, the petitioner came to be arrested in pursuance of the
\nsaid FIR for the offences punishable under the provisions of the
\nIndian Penal Code only. Thereafter, on 11th
\nJanuary 2010, the petitioner filed an application for bail, which
\nultimately came to be rejected by the Sessions Judge. On 19th
\nFebruary 2010 the Investigating Agency filed an application for
\naddition of Sections 7, 11 and 13 of the Prevention of Corruption
\nAct, 1988 (hereinafter referred to as ‘the Act’), which came to be
\nallowed and  the
\nproceedings of the said case were transferred from the Court of
\nChief Judicial Magistrate to the Special Court, Anti Corruption
\nBureau. On 27th
\nFebruary 2010 the custody of the petitioner was handed over to the
\nSpecial Court.\n<\/p>\n
3.2\tIn
\npursuance of the same, the petitioner on 03rd
\nMarch 2010 filed an application for bail being Criminal Miscellaneous
\nApplication No.604 of 2010 before this Court in respect of the
\noffences punishable under the provisions of the Indian Penal Code
\nonly. Thereafter, on 11th
\nMarch 2010 the Investigating Officer filed an application Exh.73
\nbefore the Special Court for recording the statement of the
\npetitioner, which came to be allowed and the petitioner was
\ninterrogated. Thereafter, on 23rd
\nMarch 2010, the petitioner moved an application for temporary bail,
\nwhich came to be granted on 26th
\nMarch 2010 by the Special Judge, wherein an application for extension
\nof time was moved, which was rejected by the Special Judge.\n<\/p>\n
3.3\tOn
\n31st
\nMarch 2010,  a separate FIR being I-C.R. No.3\/2010 came to be lodged
\nagainst the petitioner for the offences punishable under Sections 7,
\n11, 13(1)(B) and 13(2) of the Prevention of Corruption Act, 1988
\nbefore CID (Crime) Rajkot Zone Police Station. Thereafter, on 01st
\nApril 2010 an application was moved by the Investigating Officer for
\ndeletion of Sections 7, 11, 13(1)(B) and 13(2) of the Act from the
\nFIR being I-C.R. No.1\/ 2008 of Rajkot Zone Police Station. On the
\nsame day, Chargesheet No.2\/ 2010 came
\nto be filed against the petitioner in the Court of Chief Judicial
\nMagistrate, Kutch-Bhuj,  for the offences punishable under Sections
\n200, 203, 217, 465, 466, 468, 471, 484, 406, 409 and 120-B of the
\nIndian Penal Code.  No chargesheet was filed for the offences
\npunishable under Sections 7, 11, 13(1)(B) and 13(2) of the Prevention
\nof Corruption Act, 1988 and on the same day i.e. on 01st
\nApril 2010, the Chief Judicial Magistrate issued summons to the
\npetitioner for the offences punishable under the provisions of the
\nIndian Penal Code only.\n<\/p>\n
3.4\tThe
\npetitioner filed Special Criminal Application No.895 of 2010 before
\nthis Court for quashing of the FIR on 11th
\nMay 2010.  Thereafter, an anticipatory bail application was filed by
\nthe petitioner on 15th
\nJune 2010, which was disposed of as ‘not pressed’ by the Special
\nJudge on 20th
\nAugust 2010. Thereafter, on 03rd
\nSeptember 2010 the petitioner filed Application No.360 of 2010 for
\ndefault bail before the Sessions Court. Thereafter, on 06th
\nSeptember 2010 the Apex Court in Special Leave Petition (Cri) No.4604
\nof 2010 granted bail to the petitioner in connection with M.Case No.1
\nof 2008 for the offences punishable under the Indian Penal Code only
\nand the petitioner was released qua the Indian Penal Code offences
\nonly, on 07th
\nSeptember 2010. Thereafter, on 13th
\nSeptember 2010 the default bail application of the petitioner was
\nrejected by the Special Judge. Thereafter, Criminal Miscellaneous
\nApplication No.11389 of 2010 filed by the petitioner under Section
\n482 read with Section 167(2)
\nof the CrPC came to be dismissed on 22nd
\nSeptember 2010. Thereafter, on 25th
\nSeptember 2010 another FIR came to be lodged against the petitioner
\nand others being I-C.R. No.9 of 2010 with the State CID Crime, Rajkot
\nZone Police Station for the offences punishable under Sections 420,
\n406 and 120-B of the Indian Penal Code.\n<\/p>\n
3.5\tThereafter,
\non 18th
\nNovember 2010, the Investigating Agency filed an application for
\nissuance of non-bailable warrant against the petitioner in the Court
\nof Special Judge, Bhuj, wherein it is mentioned that a summons under
\nSection 160 of the CrPC was issued to the petitioner on 05th
\nOctober 2010 and is affixed on the door of his residential address
\nmentioned in the default bail application. Thereafter, on 06th
\nOctober 2010, the Investigating Officer received a communication from
\nthe mother of the petitioner stating that her son is not residing at
\nAhmedabad and so not to make any correspondence at her address. In
\npursuance of the same, on 13th
\nOctober 2010 a summons was affixed at the address of the petitioner
\nat Gandhinagar i.e. Plot No.465-A, Behind Gayatri Mandir, Sector-1,
\nGandhinagar, since his house was closed.\n<\/p>\n
3.6\tIn
\npursuance of the same, on 17th
\nNovember 2010 an application came to be filed before the Special
\nJudge seeking non-bailable warrant against the petitioner, which
\nultimately came to be granted on 23rd
\nNovember 2010. In the meantime, the petitioner’s advocate agreed that
\nthe petitioner will remain present before the
\nInvestigating Officer on the next date and, therefore, the date of
\nserving the warrant was kept on 10th
\nDecember 2010. However, the petitioner did not remain present.
\nInstead the petitioner moved an application for cancellation of
\nnon-bailable warrant at Mark-10 on 10th
\nDecember 2010 and also filed an application at Mark-5 for granting
\nhim adjournment, which ultimately came to be rejected vide order
\ndated 13th
\nDecember 2010. Hence, present petition.\n<\/p>\n
\tMr.I.H.\n<\/p>\n
\tSaiyed, learned advocate for the petitioner, has argued at length
\n\tand submitted that the so-called summons affixed on the house of the
\n\tpetitioner is undated and not even addressed to the petitioner,
\n\twhich is not in consonance with the provisions of Section 160 of the
\n\tCrPC, which has not been appreciated by the trial Court.\n<\/p>\n
4.1\tIt
\nis further submitted that the petitioner cannot be arrested for
\nsecond time in connection with the same offence by way of a separate
\nFIR when he was earlier arrested for the very offence registered vide
\nM.Case No.1 of 2008. It is also submitted that the third FIR has also
\nbeen lodged against the petitioner and, therefore, he may be granted
\nsome time for taking anticipatory bail. It is also submitted that no
\nreasons have been assigned by the trial Court for issuance of the
\nnon-bailable warrant against the petitioner.\n<\/p>\n
4.2\tIt
\nis further submitted that the trial Court ignored the well settled
\nprinciple of law that the petitioner cannot be declared to be an
\nabsconder if he is before the Court of law through his counsel by way
\nof filing writ petitions and Special Leave Petition for exhausting
\nthe remedies available to him under the law.\n<\/p>\n
4.3\tIt
\nis also one of the contentions of Mr.Saiyed that the trial Court
\nignored the fact while passing the order under challenge that the
\npetitioner is very well before this Court for quashing of the FIR in
\nwhich the non-bailable warrant is issued. He has further submitted
\nthat the intention on the part of the Investigating Agency is mala
\nfide and politically motivated. It is also argued that the
\nInvestigating Officer has suppressed material facts from the
\nknowledge of the trial Court that the petitioner was interrogated for
\nthe same offence and his statement was also recorded.\n<\/p>\n
4.4\tIn
\nsupport of aforesaid submissions Mr.Saiyed has relied upon various
\ndecisions of this Court as well as the Apex Court viz. (1) Inder
\nMohan Goswami and another v. State of Uttaranchal and others,
\nreported in (2007) 12 SCC 1; (2)  T.T. Antony v. State of Kerala and
\nothers<\/a>, reported in (2001) 6 SCC 181; (3) State of Haryana and others
\nv. Dinesh Kumar,<\/a> reported in (2008) 3 SCC 222; and (4) Kunhayammed v.
\nState of Kerala,<\/a> reported in AIR 2000 SC 2587, and relying upon the
\nsame it is prayed that present petition may be allowed.\n<\/p>\n
\tMr.P.K.\n<\/p>\n
\tJani, learned Public Prosecutor, has pointed out that the order
\n\tunder challenge in this petition passed by the trial Court is just
\n\tand proper. The trial Court has after appreciating the facts and
\n\tcircumstances of the case and the evidence on record rejected the
\n\tapplications at Marks-5 and 10 moved by the petitioner. It is
\n\tsubmitted that the trial Court has assigned cogent and convincing
\n\treasons for arriving at the impugned conclusion. It is submitted
\n\tthat the summons were duly served upon the petitioner with date and
\n\this name reflected on them; that there is no mala fide intention on
\n\tthe part of the Investigating Agency nor the same is politically
\n\tmotivated; that the Investigating Officer has not suppressed any
\n\tmaterial facts. In support of his submissions, Mr.P.K. Jani has
\n\trelied upon the decision of the Apex Court in the case of T.T.
\n\tAntony  (supra) to the extent it helps the prosecution. In
\n\tview of aforesaid it is prayed that present petition may be
\n\tdismissed.\n<\/p>\n
\tBefore
\n\tproceeding with the matter, it is required to be noted that when
\n\tpresent petition was listed for hearing on 07th February
\n\t2011, this Court had suggested the learned advocate for the
\n\tpetitioner to partly allow the present petition and to remand the
\n\tmatter and the petitioner was asked to remain present before the
\n\ttrial Court on a particular date. However, since Mr.P.K. Jani,
\n\tlearned Public Prosecutor, was not present, the matter was adjourned
\n\tto 09th February 2011. On 09th February 2011,
\n\tthe matter was argued at length by the learned advocate for the
\n\tpetitioner and the same was treated as part-heard and adjourned to
\n\t10th February 2011. Inspite of the same, the learned
\n\tadvocate for the petitioner Mr.I.H. Saiyed has chosen not to appear
\n\tbefore this Court on 10th February 2011 and since Mr.P.K.
\n\tJani, learned Public Prosecutor was present, he had argued the
\n\tmatter. Thus, the conduct on the part of the petitioner is required
\n\tto be viewed very seriously.\n<\/p>\n
\tHaving
\n\tconsidered the contentions raised by the learned advocates for the
\n\trespective parties, averments made in the petition and the
\n\tdocumentary evidence produced on record, it transpires that when the
\n\tquestion as to cancellation of non-bailable warrant is raised, the
\n\tfirst reaction of the Court is to see that an accused is supposed to
\n\tcooperate with the Court as well as the Investigating Agency and,
\n\ttherefore, this Court had suggested, as aforesaid, to the learned
\n\tadvocate for the petitioner to remand the matter by partly allowing
\n\tthe same and directing the petitioner to remain present before the
\n\ttrial Court, which was declined by the learned advocate for the
\n\tpetitioner. Therefore, prima facie it seems that the petitioner is
\n\ttrying to while away the time and also trying to overreach the
\n\tprocess of the Court.\n<\/p>\n
7.1
\n\tSo far as the contention of the petitioner that he was rearrested
\nfor the very offence is concerned, it is required to be noted that
\nthe petitioner was arrested on 06th January 2011 for the
\noffence punishable under the provisions of the Indian Penal Code in
\npursuance of the FIR registered vide M.Case No.1 of 2008.  It is
\nrequired to be noted that thereafter the Investigating Agency moved
\nan application for addition of provisions of the Prevention of
\nCorruption Act, 1988 on 19th February 2010. Thus, the
\narrest of the petitioner was qua the offence under the Indian Penal
\nCode only i.e. qua the FIR being I-C.R. No.1 of 2008. Thereafter, the
\nsecond FIR being I-C.R. No.3 of 2010 came to be lodged against the
\npetitioner on 31st March 2010 and the Investigating Agency
\nalso prayed for deletion of provisions of Prevention of Corruption
\nAct from the FIR being M.Case No.1 of 2008.  Further, chargesheet
\nNo.2 of 2010 in connection with FIR being M.Case No.1 of 2008 came to
\nbe submitted only qua the offences punishable under the provisions of
\nthe Indian Penal Code only. It is required to be noted that no
\nchargesheet has been submitted qua the offences punishable under the
\nprovisions of the Prevention of Corruption Act. It is required to be
\nnoted that the second FIR has been filed against the petitioner in
\nrespect of the evidence collected during the course of investigation
\nof the first FIR against the petitioner. Thus, it transpires that the
\npetitioner was arrested on 06th January 2010 only qua the
\noffences punishable under the provisions of the Indian Penal Code.
\nHere it would be beneficial to reproduce the decision of this Court
\n(Coram : R.H. Shukla, J) rendered on 28th October 2010 in
\nCriminal Miscellaneous Application No.11389 of 2010 preferred by the
\npetitioner herein, which is as under :\n<\/p>\n
“The
\npresent application has been filed by the applicant under sec. 167(2)
\nr\/w sec. 482 of Criminal Procedure Code for grant of default bail
\nchallenging the impugned judgment and order passed by the learned
\nSpecial (ACB) Judge, Bhuj, Kutch  in Criminal Misc. Application No.
\n360 of 2010 dated 13.9.2010 rejecting such application for grant of
\ndefault bail under sec. 167(2) of CrPC on the grounds set out in
\ndetail in the Memo of Application.\n<\/p>\n
2.\tLearned
\nSr. Counsel Mr. Raju for the applicant referred to the papers and the
\ngrounds and submitted that the applicant-accused was arrested on
\n6.1.2010, was produced before the Magistrate on 6.7.2010 and he has
\nbeen arrested in connection with M. Case No. 1\/2008 registered with
\nCID Crime, Rajkot Zone, Bhuj, for the alleged offences under sec.
\n200, 203, 217, 465, 468, 471, 472, 474, 475, 406, 409 and 120B of
\nIPC.  Thereafter a report was submitted for adding offences under the
\nPrevention of Corruption Act (hereinafter referred to as ‘the PC
\nAct’) and thereafter the said report for adding the offences under
\nthe PC Act was withdrawn vide application dated 1.4.2010. Thereafter,
\nthe present FIR being C.R. No. I-3\/2010 registered with CID (Crime),
\nRajkot Zone, came to be filed for offences under sec. 7, 11, 13(1)(b)
\n& 13(2) of the PC Act.\n<\/p>\n
3.\tLearned
\nSr. Counsel Mr. Raju submitted that, though a separate FIR has been
\nfiled subsequently, in fact, the applicant was already in the custody
\nand the report was also made for adding offences under the PC Act and
\ntherefore he would be deemed to have been in the custody even in
\nrespect of the offences under the PC Act for which a separate FIR has
\nbeen filed.\n<\/p>\n
4.\tLearned
\nSr. Counsel Mr. Raju referred to and relied upon the judgment of the
\nHon’ble Apex Court in the case of State of Maharashtra v. Bharati
\nChandmal Varma (Mrs.),<\/a> reported in (2002) 2 SCC 121, in support
\nof his submission and submitted that in fact MCOC Act was invoked and
\nstill the period was not reckoned for the purpose of bail under sec.
\n167(2) of CrPC. He, therefore, submitted that the applicant could be
\ndeemed to be in the custody in respect of the offences under the PC
\nAct for which a separate FIR is filed and since he has been in
\ncustody beyond the period prescribed by law, he should be released on
\nbail.\n<\/p>\n
5.\tLearned
\nSr. Counsel Mr. Raju submitted that the second FIR is the same
\nreferring to the similar allegations for which a report for adding
\ncharges for offences under the PC  Act was made. He pointedly
\nreferred to this aspect and submitted that though a separate FIR
\ncould be filed if it was a separate transaction, but in the facts of
\nthe present case, it would not be justified and therefore in any case
\nwhen the remand was granted for these very charges under the PC Act
\nwere also considered and after the custodial interrogation when he
\nhas been remanded to judicial custody for all the offences and
\ntherefore the second FIR being C.R. No. I-3\/2010 for the alleged
\noffences under the PC Act is misconceived and treating the
\napplicant-accused deemed to have been in the custody and having
\nfailed to file the charge sheet for these offences under FIR No. C.R.
\nNo. I-3\/2010 default bail under sec. 167(2) of CrPC may be granted.\n<\/p>\n
6.\tLearned
\nSr. Counsel Mr. Raju submitted that as the charge sheet is not filed
\nwithin the stipulated period, the applicant is entitled to default
\nbail. He submitted that it is an indefeasible right of the accused to
\nbe released on bail after the expiry of such period prescribed under
\nsec. 167(2) of CrPC, to which he referred in detail.\n<\/p>\n
7.\tLearned
\nSr. Counsel Mr. Raju referred to and relied upon the judgment of the
\nHon’ble Apex Court in the case of Uday Mohanlal Acharya v. State
\nof Maharashtra,<\/a> reported in (2001) 5 SCC 453, and submitted that
\nit is an indefeasible  right of the accused and default bail has to
\nbe granted once the charge sheet is not filed within the stipulated
\nperiod.  He has also referred to and relied upon the judgment of the
\nHon’ble Apex Court reported in (2008) 3 SCC 222 in the case of State
\nof Haryana and ors. v. Dinesh Kumar,  and<\/a> referring to the
\nobservations in Para 21, he tried to emphasize the distinction
\nbetween the ‘arrest’ and the ‘custody’ and submitted that the
\napplicant accused may be deemed to be in the custody even in respect
\nof the offences under the PC Act in respect of C.R. No. I-3\/2010.\n<\/p>\n
8.\tTherefore,
\nin substance, Learned Sr. Counsel Mr. Raju emphasized that even
\nthough the applicant is on bail in connection with alleged offences
\nunder sec.200, 203, 217 etc. of IPC in connection with M. Case No.
\n1\/2008, he should be treated as in custody or deemed custody for the
\nFIR which has been filed subsequently being C.R. No. I-3\/2010 for the
\noffences under the PC Act and as the charge sheet has not been filed
\nin connection with the subsequent FIR being C.R. No. I-3\/2010 within
\na period of 60 days, default bail in exercise of discretion under
\nsec. 167(2) of CrPC should be granted.\n<\/p>\n
9.\tMr.\n<\/p>\n
PK Jani, learned Public Prosecutor, referred to the FIR and also
\nreferred to the arrest memo, which is produced at page 20 of the
\npaper-book. and submitted that as it is evident from the arrest memo,
\nthe applicant has been arrested in connection with the alleged
\noffences under the IPC in connection with M. Case No. 1\/2008.
\nLearned Public Prosecutor Mr. Jani submitted  that it is required to
\nbe mentioned that it was in respect of offences under IPC only.  He
\npointedly referred to the sequence of events and also the affidavit
\nfiled on behalf of the respondent with the details enclosed produced
\non record and submitted that as stated in this, an application was
\nmade to add offences under the PC Act on 19.2.2010 which came to be
\nwithdrawn as per the application dated 1.4.2010 (Annexure-B).
\nLearned Public Prosecutor Mr. Jani submitted that an application for
\nbail in the meantime was preferred by the applicant before the
\nSessions Court and thereafter an application for bail was preferred
\nbefore the High Court being Criminal Misc. Application No. 604 of
\n2010 which came to be rejected vide order dated 3.3.2010. The said
\napplication was with regard to grant of bail for the alleged offences
\nunder the IPC in connection with M. Case No. 1\/2008 registered with
\nCID Crime, Rajkot Zone. Thereafter, the petitioner again moved an
\napplication under sec. 439 of CrPC for grant of regular bail which
\ncame to be rejected on 30.6.2010 against which he preferred an
\napplication before the Hon’ble Apex Court.   Learned Public
\nProsecutor Mr. Jani submitted that pursuant to the order of the
\nHon’ble Apex Court, the chief Judicial Magistrate, Bhuj, as per the
\nreport produced at page 188, released the applicant on bail which he
\npointedly referred and submitted that it was with regard to offences
\nunder sec. 200, 203, 216, 465, 468, 471, 472, 474, 475, 406, 409,
\n120B  of IPC in connection with M. Case No. 1\/2008.\n<\/p>\n
10.\tLearned
\nPublic Prosecutor Mr. Jani also referred to the papers and submitted
\nthat in fact, in the meanwhile, the applicant applied for temporary
\nbail and thereafter the applicant himself had moved an application
\nfor anticipatory bail under sec. 438 of CrPC in connection with FIR
\nbeing C.R. No. 3\/2010 registered with CID (Crime), Rajkot Zone, which
\nwas not pressed.\n<\/p>\n
11.\tLearned
\nPublic Prosecutor Mr. Jani has also referred to the details with
\nregard to this and submitted that when he has withdrawn the
\napplication for anticipatory bail, the applicant has claimed that he
\nwas not arrested and therefore he moved the application for
\nanticipatory bail. He further submitted that, admittedly, the
\napplicant has been released on bail as per the order of the Hon’ble
\nApex Court in respect of the alleged offences under IPC in M. Case
\nNo. 1\/2008.  Learned Public Prosecutor Mr. Jani, therefore, submitted
\nthat, admittedly, the applicant is not in custody and therefore there
\nis no question of grant of any default bail under sec. 167(2) of
\nCrPC.\n<\/p>\n
12.\tLearned
\nPublic Prosecutor Mr. Jani referred to the provisions of sec. 167(2)
\nof CrPC which reads as under:\n<\/p>\n
“The
\nMagistrate to whom an accused person is forwarded under this section
\nmay, whether he has or has not jurisdiction to try the case, from
\ntime to time, authorise the detention of the accused in such custody
\nas such Magistrate thinks fit, a term not exceeding fifteen days in
\nthe whole; and if he has no jurisdiction to try the case or commit it
\nfor trial, and considers further detention unnecessary, he may order
\nthe accused to be forwarded to a Magistrate having such jurisdiction:\n<\/p>\n
Provided
\nthat—\n<\/p>\n
(a)
\n   the Magistrate may authorise the detention of the accused person,
\notherwise than in the custody of the police, beyond the period of
\nfifteen days, if he is satisfied that adequate grounds exist for
\ndoing so, but no Magistrate shall authorise the detention of the
\naccused person in custody under this paragraph for a total period
\nexceeding–\n<\/p>\n
(i)\txxxx<\/p>\n
(ii)\tsixty
\ndays, where the investigation relates to any other offence, and, on
\nthe expiry of the said period of ninety days, or sixty days, as the
\ncase may be, the accused person shall be released on bail if he is
\nprepared to and does furnish bail, and every person released on bail
\nunder this sub-section shall be deemed to be released under the
\nprovisions of Chapter XXXIII for the purposes of that Chapter.”\n<\/p>\n
He,
\ntherefore, submitted that this provision will come into play provided
\nthe applicant accused is in custody or in jail who can resort to this
\nprovision for grant of bail as the legislature has provided this
\nsafeguard laying down the time-limit for the investigating agency and
\nalso considering the right of the accused that he may not be detained
\nfor long period.\n<\/p>\n
13.\tTherefore,
\nhe submitted that the submissions with regard to deemed custody are
\nwithout any basis and there appears to be some misconception.
\nLearned Public Prosecutor Mr. Jani also submitted referring to the
\ndetails as to the exact nature of allegations made in the FIR filed
\nsubsequently being C.R. No. I-3\/2010.  Learned Public Prosecutor Mr.
\nJani submitted that  separate FIRs could be filed for separate
\noffences like under the PC Act which is a separate and independent
\noffence.  Learned Public Prosecutor Mr. Jani submitted that may be in
\nrespect of the alleged deeds or irregularity committed by the accused
\nit may have different allegations for separate offences for which
\nseparate FIR is not prohibited under the law.\n<\/p>\n
14.\tLearned
\nPublic Prosecutor Mr. Jani further submitted that if these
\nsubmissions of the applicant  were to be accepted, it would amount to
\nquashing the FIR at this stage, which is not permissible inasmuch as
\nthe petitioner has the option to have a remedy for quashing the
\nsubsequent FIR being C.R. No. I-3\/2010 filed for the offences under
\nthe PC Act. However, once having failed to get anticipatory bail, he
\nhas not carried the matter before the higher forum like the High
\nCourt, has not filed the proceedings for quashing the separate FIR
\nbeing C.R. No. I-3\/2010, has claimed the default bail on the wrong
\nassumption or presumption that he should be deemed to be in custody
\nin connection with the subsequent FIR being C.R. No. I-3\/2010 for the
\nalleged offences under the PC Act, though, in fact, he is already on
\nbail, and he is not in the custody.  He submitted that there is no
\nprovision for deemed custody which is sought to be canvassed and
\ntherefore when the applicant is not at all in the custody, the
\nprovision sec. 167(2) would not be attracted and the present
\napplication deserves to be rejected.\n<\/p>\n
15.\tIn
\nrejoinder, learned Sr. Counsel Mr. Raju referred to the papers and
\nsubmitted that if the person is arrested, he has to be produced
\nbefore the Magistrate within 24 hrs. and thereafter he would be
\ngranted regular bail or default bail.  He submitted that as the
\napplicant accused was arrested earlier and regular bail has been
\ngranted, the charges for the offences are the same for which even a
\nreport was made and subsequently a separate FIR has been filed and,
\ntherefore, he has to be treated as deemed to have been in custody
\neven for the offences under the PC Act in C.R. No. I-3\/2010, and as
\nthere is no charge sheet filed within the stipulated period of 60
\ndays, the petitioner would be entitled to be released on bail under
\nsec. 167(2) of CrPC as it is an indefeasible right.\n<\/p>\n
16.\tIn
\nview of rival submissions, it is required to be considered whether
\nthe present application can e entertained or not.\n<\/p>\n
17.\tAs
\nit transpires from the facts, admittedly, the applicant has been
\nreleased pursuant to the order of the Hon’ble Apex Court in SLP
\n(Cri.) No. 6166 of 2010 vide order dated 16.9.2010 and he has been
\nenlarged on bail for which the report is also produced.  It clearly
\nrefers to the fact it was in connection with M. Case No. 1\/2008 for
\nthe alleged offences under the IPC.  Further, even in an application
\nfor bail being Criminal Misc. Application No. 4604 of 2010 after
\ncharge sheet before the High Court, the application itself makes it
\nclear that it was preferred under sec. 439 for bail in connection
\nwith M. Case No. 1\/2008 registered with CID Crime, for the alleged
\noffences under sec. 200, 203, 217, 465, 468, 471 etc. of IPC.
\nAdmittedly, the applicant has not been in custody.  Admittedly, the
\napplicant had preferred an application for anticipatory bail being
\nCriminal Misc. Application No. 237 of 2010 before the Special Judge
\n(ACB), Kutch at Bhuj under sec. 438 in connection with C.R. No.
\nI-3\/2010 registered with CID Crime, Rajkot Zone, for the alleged
\noffences under the PC Act, which has been withdrawn by him.\n<\/p>\n
18.\tTherefore,
\n as provided in sec. 167(2), which is known as default bail, it
\npresupposes that the person has to be in custody.  This provision has
\nbeen made to safeguard the right of the accused that he is not
\ndetained beyond a prescribed period obliging the investigating agency
\nto complete the investigation and file charge sheet within the
\nstipulated period as provided in Sec. 167(2).  On a closer
\nexamination of this provision, which has been referred to by both the
\nsides, the proviso makes it clear that the Magistrate may authorise
\nthe detention of the accused otherwise than in the custody of police,
\nthat is, judicial custody,  beyond the period on the ground mentioned
\ntherein. But he wording clearly suggests “no magistrate shall
\nauthorize detention of the accused person in custody under this
\nchapter for a total period exceeding <\/p>\n
(i)
\nxxxxxx<\/p>\n
(ii)
\nsixty days, where the investigation relates to any other offence,
\nand, on the expiry of the said period of ninety days, or sixty days,
\nas the case may be, the accused person shall be released on bail if
\nhe is prepared to and does furnish bail, and every person
\nreleased on bail under this sub-section shall be deemed to be
\nreleased under the provisions of Chapter XXXIII for the purposes of
\nthat Chapter.” (emphasis supplied)  <\/p>\n
This
\nitself would suggest that the person has to be in judicial custody
\nbefore this provision could be invoked.\n<\/p>\n
19.\tThe
\nsubmissions made by learned Sr. Counsel Mr. Raju referring to the
\nfacts in the present case with much emphasis that the applicant
\nshould be deemed to have been in custody in respect of the subsequent
\nFIR being C.R. No. I-3\/2010 registered with CID Crime, Rajkot Zone,
\nfor the alleged offences under the PC Act is a novel argument without
\nany basis or any provision.  Further, if the submissions were to be
\naccepted, at the most, initially when the report was made for adding
\noffences under the PC Act in M. Case No. 1\/2008 and thereafter it was
\nwithdrawn, and separate FIR has been filed being C.R. No. I-3\/2010
\nfor the alleged offences under the PC Act, it may lead to a recourse
\nfor appropriate remedy as may be advised.  Further, the proceedings
\nfor quashing such FIR is a different aspect which the petitioner may
\nhave the remedy or he could have raised objection at that time when
\nthe report for addition of offences under the PC Act in M. case No.
\n1\/2008 was sought to be withdrawn. The same has not been challenged.\n<\/p>\n
20.\tThe
\nconduct of the applicant is also required to be appreciated that
\nthereafter when he has filed regular bail application before the High
\nCourt as well as before the Hon’ble Apex Court, he has confined
\nthe application for bail under sec. 439(2) for the offences under IPC
\nin connection with M. Case No. 1\/2008 and not a whisper has been made
\nwith regard to this aspect.  Even thereafter he has filed
\nanticipatory bail application under sec. 438 before the Special Judge
\nbeing Criminal Misc. Application No. 237 of 2010 in connection with
\nthe subsequent FIR being C.R. No. 3\/2010 registered with CID Crime,
\nRajkot Zone, which has been withdrawn.  If there was any
\nmisconception, he could have taken further recourse as may be advised
\nfor anticipatory bail and in fact it would suggest that the applicant
\npetitioner has also admitted about the separate FIR for the alleged
\noffences under the PC Act against him.\n<\/p>\n
21.\tTherefore,
\nwhen he could not either pursue or could not easily convince the
\ncourt for grant of anticipatory bail, it was withdrawn, and the
\nmatter rested there. Now, in the guise of such application for
\ndefault bail under sec. 167(2), it cannot be permitted to be argued
\nthat he is deemed to have been in custody in connection with the
\nseparate FIR being C.R. No. I-3\/2010 registered with CID Crime,
\nRajkot Zone when he was in custody for the offences under IPC in
\nconnection with M. Case No. 1\/2008.  This deeming fiction as sought
\nto be canvassed is not permitted in law and there is no such
\nprovision shown. The reference made to the judgment of the Hon’ble
\nApex Court in the case of State of Maharashtra v. Bharati Chandmal
\nVarma (Mrs.)<\/a> @ Ayesha Khan  (supra)  stands on a different
\nfooting and it will not have application to the facts of the present
\ncase as there it was a case with regard to calculation of the period
\nfor the purpose of default bail under sec. 167(2) after the MCOCA was
\ninvoked and observations have been made in that context, but there it
\nwas not the fact that the petitioner was not in the custody. In the
\nfacts of the present case, the petitioner is not at all in the
\ncustody and therefore the provisions of sec. 167(2) will not have any
\napplication.\n<\/p>\n
22.\tWhile
\ndiscussing the provisions of sec. 438 & 429 of CrPC, in its
\njudgment in the case of Sunita Devi v. State of Bihar and anr.
\nreported in AIR 2005 SC 498,  the Hon’ble Apex Court has refeferred
\nto this aspect of custody as to when the person can invoke the
\nprovisions of sec. 438 and 439.  It is also made clear that once the
\nperson is in custody provisions of sec. 439 would apply.  It has been
\nspecifically observd in Para 8 that,<\/p>\n
“It
\nis clear from a bare reading of the provisions that for making an
\napplication in terms of Seoction 439 of the Code a person has to be
\nin custody.  Section 438 of the Code deals with “Direction for
\ngrant of bail to person apprehending arrest”.\n<\/p>\n
Therefore,
\nas it has been observed anticipatory bail is granted in anticipation
\nof arrest in non-balilable cases, whereas sec. 439 will come into
\nplay when the person is in custody. Further, it has been observed in
\nPara 16,  <\/p>\n
“Since
\nthe expression “custody” though used in various
\nprovisions of the Code, including Section 439, has not been defined
\nin the Code.  It has to be understood in setting in which it is used
\nand the provisions contained in Section 437 which relates to
\njurisdiction of the Magistrate to release an accused on bail under
\ncertain circumstances which can be characterized as “in
\ncustody” in a generic sense.  The expression “custody”
\nas used in Section 439, must be taken to  be a compendious expresion
\nreferring to the events on the happening of which Magistrate can
\nentertain bail petition of an accused.”\n<\/p>\n
23.\tAgain,
\nit has been observd that “the fundamental requirement is that
\nthe accused should be in custody.” The provisions of sec.
\n167(2) which in turn provide that the person has to be in custody and
\ntherefore such provision will not be attracted in the facts of the
\ncase.\n<\/p>\n
24.\tIn
\nthe facts of the present case, it cannot be said that merely because
\nthe bail is granted in connection with one FIR, the applicant should
\nbe deemed to have been in custody in connection with another FIR
\nparticularly when anticipatory bail has been withdrawn. Therefore, in
\nconnection with the second FIR being C.R. No. I-3\/2010 registered
\nwith CID Crime, Rajkot Zone, the provisions of sec. 167(2) for
\ndefault bail would not be attracted.  It is not even the case of the
\napplicant that the separate FIR being C.R. No. I-3\/2010 is not
\nmaintainable or that second FIR could not be filed.  Even if it is
\nso, the remedy lies elsewhere for appropriate steps as may be
\nadvised, but sec. 167(2) will not be attracted.\n<\/p>\n
25.\tIt
\nis well accepted by judicial pronouncements that there could be
\nseparate FIRs for separate offences.  A useful reference can be made
\nto the observations made by the Hon’ble Apex Court in the
\njudgment in the case of Nirmal Singh Kahlon v. State of Punjab &
\nors.<\/a> reported in(2009) 1 SCC 441 where the Hon’ble Apex
\ncourt has quoted  earlier judgment of 3-Judge Bench of the Apex Court
\nin the case of Upkar Singh v. Ved Prakash,<\/a> reported in (2004)
\n1 SCC 292.\n<\/p>\n
26.\tTherefore,
\nin view of the aforesaid discussion with regard to the rival
\nsubmissions and the provisions of sec. 167(2) of CrPC it will not
\nhave any application as the applicant cannot be said to be in custody
\nas sought to be canvassed on the basis of the deemed custody and in
\nfact he is granted regular bail as discussed hereinabove.  Therefore,
\nwhen he is not at all in the custody, the provisions of sec. 167(2)
\nof CrPC would not be attracted and the present application deserves
\nto be rejected and accordingly stands rejected.  Rule is discharged.”\n<\/p>\n
\tThus,
\neven on perusal of the said decision, it is crystal clear that the
\npetitioner was not rearrested for the very offence. Hence, the
\ncontention of the petitioner that he was rearrested is devoid of any
\nsubstance and merit.\n<\/p>\n
7.2\tSo
\nfar as the contention of the petitioner that the so-called summons
\naffixed on the house of the petitioner is undated and not even
\naddressed to the petitioner, which is not in consonance with the
\nprovision of Section 160 of the CrPC is concerned, it is required to
\nbe noted that the copy of the summons which has been placed on record
\nand which the petitioner has at present is an “Office Copy”,
\nwhich does not bear the date and name of the petitioner. In this
\nrespect, Mr.Jani has submitted that the original summons does bear
\nthe name of the petitioner as well as the specific date. Mr.Saiyed is
\nnot in a position to discard the said contention raised by the
\nlearned Public Prosecutor. In fact and in reality, the trial Court
\nhad perused the copy of the original summons and passed the order.
\nThus, it transpires that the original summons was bearing date as
\nwell as the name of the petitioner. Hence, this contention of the
\npetitioner also does not merit acceptance.\n<\/p>\n
7.3\tFurther,
\nit is required to be noted that it is not the Investigating Officer
\nbut the petitioner who has suppressed material facts from the
\nknowledge of the trial Court. The petitioner had shown his addresses
\nto be of Ahmedabad as well as Gandhinagar in all his applications
\nbefore different Courts of law and when the summons were issued at
\nthe address of Ahmedabad as mentioned in one of the  applications of
\nthe petitioner, the mother of the petitioner has communicated that
\nthe petitioner is not residing at the said address of Ahmedabad.
\nThus, the conduct of the petitioner is manifest. Thus, either the
\npetitioner or his mother is making a false statement and they are
\ntrying to play legal jugglery only with a view to avoid consequences
\nof the summons. It is required to be noted that mere allegation of
\nmala fide will not vitiate the action on the part of the
\nInvestigating Agency. The petitioner has been facing charge of
\nserious offences against him. As per the case of the prosecution, the
\npetitioner was using two unofficial ‘SIM’ cards for which the payment
\nwas made by a private company, which is not a minor offence.\n<\/p>\n
7.4\tIt
\nis pertinent to note that even this Court while dealing with Criminal
\nMiscellaneous Application No.895 of 2010 filed by the petitioner
\nunder Section 482 of the CrPC for quashing of the very FIR i.e.
\nI-C.R. No.3 of 2010, on 10th January 2011 , has observed
\nas under :\n<\/p>\n
\t“1.\n<\/p>\n
\tPetitioner is original accused. He seeks quashing of complaint
\nbearing I-C.R. No.3 of 2010 filed before C.I.D. Crime, Rajkot Zone
\nPolice Station on 31.3.2010.\n<\/p>\n
\t2.
\n\tBrief facts are as follows:\n<\/p>\n
\t2.1
\nPetitioner is an IAS Officer of Gujarat cadre. A complaint bearing
\nM.Case No.1 of 2008 was filed before Rajkot Zone CID Crime, Rajkot
\nalleging offences punishable under Sections 200, 203, 217, 465, 466,
\n467, 468, 471, 472, 474, 475, 484 and 120-B of Indian Penal Code. In
\nconnection with the said M.Case No.1 of 2008, FIR 1 of 2008 was
\nregistered before the Bhuj Police Station. Primarily allegations
\ncontained in the said complaint pertained to land alloted by the
\npetitioner after the earthquake of January, 2001 when the petitioner
\nwas posted as Collector of Kachchh district. The complaint alleges
\nseveral irregularities in allotment of such lands in favour of public
\ntrusts and other persons and entities.\n<\/p>\n
\t2.2\tWhile
\nthe investigation into the said complaint bearing M.Case No.1 of 2008
\nwas going on, an application came to be filed before the concerned
\nMagistrate by the Investigating Officer on 19.2.2010 stating that
\nwhile investigation into the said complaint, the Investigating
\nOfficer had collected call details of two mobile numbers 98240 01729
\nand 99251 99749. It was revealed that the sim cards of the said
\nnumbers were in the name of the company called Ratan Enterprise Ltd.
\nand Wellspan respectively. It was further revealed that the telephone
\nbills of Rs.46,554\/- and Rs.2,26,036\/-  were borne by such companies
\nthough telephone was used by the petitioner. It was thus alleged that
\npetitioner procured such mobile sim cards from the companies and used
\nthem for 5 years and bills were paid by the companies. The
\nInvestigating Officer, therefore, requested that the offence under
\nSections 7,11 and 13 of Prevention of Corruption Act also be added to
\nthe FIR being investigated into.\n<\/p>\n
\t2.3\tIt
\nis the case of the petitioner that pursuant to the said report filed
\nby the Investigating Officer, the investigation was carried out
\nagainst the petitioner not only with respect to offences as
\npreviously disclosed but also with respect to the offences punishable
\nunder Prevention of Corruption Act added subsequently. In-fact case
\nwas on account of addition of provisions of Prevention of Corruption
\nAct transferred to Judge, Special Court, Bhuj. Petitioner has
\nproduced communication dated 11.3.2010 from the Investigating Agency
\nto the Special Court seeking permission to record further statement
\nof the witnesses in connection with Mobile Telephone numbers. It is
\nthe case of the petitioner that such interrogation was permitted and
\ncarried out and statements of the petitioner and other co-accused
\nwere recorded.\n<\/p>\n
\t2.4\tAt
\nthat stage, application came to be filed before the Special Court on
\n1.4.2008 by the Investigating Agency  contending inter-alia that the
\noffence punishable under Sections 7,11 and 13 of the Prevention of
\nCorruption Act are relatable only to the present petitioner whereas
\nin the M.Case No.1 of 2008 there are offences punishable under IPC
\ninvolving other accused as well. It was, therefore, pointed out that
\nagainst the present petitioner separate complaint bearing I-C.R.No.3
\nof 2010 has already been lodged after necessary permission from the
\nAdditional Director General of Police. Sections 7, 11 and 13 of the
\nPrevention of Corruption Act which have been added in M.Case No.1 of
\n2008 be permitted to be deleted.\n<\/p>\n
\t2.5\tOn
\nsuch application, learned Special Judge passed an order on 1.4.2010
\nordering the application to be kept with original FIR and report to
\nthe effect that Prevention of Corruption Act was added erroneously.\n<\/p>\n
\t3.\tIt
\nis the case of the petitioner that subsequent FIR bearing I-C.R.No.3
\nof 2010 was wholly impermissible. Petitioner has, therefore,
\nquestioned legality thereof primarily on two grounds.\n<\/p>\n
\t(I)\tContention
\nof the petitioner is that for the same set of events two FIRs cannot
\nbe registered. Counsel for the petitioner submitted that previously
\nM.Case No.1 of 2008 was initiated in which later on provisions under
\nPrevention of Corruption Act were added. Subsequently, however,
\nseparate FIR bearing I-C.R.No.3 of 2010 was filed simultaneously
\nrequesting the Special Court to delete the provisions of Prevention
\nof Corruption Act case arising out of M.Case No.1 of 2008.\n<\/p>\n
\t(II)
\nSecond contention of the counsel for the petitioner was that entire
\ninvestigation was carried out in the case arising out of M.Case No.1
\nof 2008 including for the offence punishable under the Prevention of
\nCorruption Act. Further or fresh investigation would amount to abuse
\nof process of Court. Heavy reliance was placed in the case of
\nT.T.Antony v\/s. State of Kerala and Ors. reported in (2001)
\n6 SCC 181; wherein, the Apex Court made following observations.\n<\/p>\n
\t“19.\n<\/p>\n
\tThe scheme of the Cr.P.C. is that an officer-in-charge of a Police
\nStation has to commence investigation as provided in Section 156 or
\n157 of Cr.P.C. on the basis of entry of the First Information Report,
\non coming to know of the commission of a cognizable offence. On
\ncompletion of investigation and on the basis of evidence collected he
\nhas to form opinion under Sections 169 or 170 of Cr.P.C., as the case
\nmay be, and forward his report to the concerned Magistrate under
\nSection 173(2) of Cr.P.C. However, even after filing such a report if
\nhe comes into possession of further information or material, he need
\nnot register a fresh FIR, he is empowered to make further
\ninvestigation, normally with the leave of the Court, and where during
\nfurther investigation he collects further evidence, oral or
\ndocumentary, he is obliged to forward the same with one or more
\nfurther reports; this is the import of sub-section (8) of section 173
\nCr.P.C.\n<\/p>\n
\t20.
\n\tFrom the above discussion it follows that under the scheme of the
\nprovisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of
\nCr.P.C. only the earliest or the first information in regard to the
\ncommission of a cognizable offence satisfied the requirements of
\nSection 154 Cr.P.C. Thus there can be no second FIR and consequently
\nthere can be no fresh investigation on receipt of every subsequent
\ninformation in respect of the same cognizable offence or the same
\noccurrence or incident giving rise to one or more cognizable
\noffences. On receipt of information about a cognizable offence or an
\nincident giving rise to a cognizable offence or offences and on
\nentering the FIR in the station house diary, the officer-in-charge of
\na Police Station has to investigate not merely the cognizable offence
\nreported in the FIR but also other connected offences found to have
\nbeen committed in the course of the same transaction or the same
\noccurrence and file one or more reports as provided in Section 173 of
\nthe Cr.P.C.\n<\/p>\n
21 to 26 xxxx—xxxx  <\/p>\n
\t27.
\nA just balance between the fundamental rights of the citizens under
\nArticles 19 and 21 of the Constitution and the expansive power of the
\npolice to investigate a cognizable offence has to be struck by the
\nCourt. There cannot be any controversy that sub-section (8) of
\nSection 173 Cr.P.C. empowers the police to make further
\ninvestigation, obtain further evidence (both oral and documentary)
\nand forward a further report or reports to the Magistrate. In
\nNarangs’ case (supra) it was, however, observed that it would be
\nappropriate to conduct further investigation with the permission of
\nthe Court. However, the seeping power of investigation does not
\nwarrant subjecting a citizen each time to fresh investigation by the
\npolice in respect of the same incident, giving rise to one or more
\ncognizable offences, consequent upon filing of successive FIRs
\nwhether before or after filing the final report under Section 173(2)
\nCr. P. C. it would clearly be beyond the purview of Sections 154 and
\n156 Cr. P. C. nay, a case of abuse of the statutory power of
\ninvestigation in a given case. In our view a case of a fresh
\ninvestigation based on the second or successive FIRs, not being a
\ncounter case, filed in connection with the same or connected
\ncognizable offence alleged to have been committed in the course of
\nthe same transaction and in respect of which pursuant to the first
\nFIR either investigation is underway or final report under Section
\n173(2) has been forwarded to the Magistrate, may be a fit case for
\nexercise of power under Section 482 Cr. P. C. or under Article
\n226\/227 of the Constitution”.\n<\/p>\n
\t4.
\n\tOn the other hand, learned Public Prosecutor appearing on advance
\ncopy opposed the petition contending that both the incidents namely
\nfirst involved in M.Case No.1 of 2008 and the other referred to in
\nI-C.R.No.3 of 2010 are entirely different and distinct. He submitted
\nthat investigation is still going on. The petitioner is yet to be
\ninterrogated.  He further pointed out that M.Case No.1 of 2008 has
\nculminated into filing of the charge-sheet and penal provisions
\nincluded are only those punishable under IPC. Powers of quashing,
\ntherefore, be not exercised.\n<\/p>\n
\t5.
\n\tHaving heard the learned advocates for the parties and having
\nperused the documents on record, it clearly emerges that M.Case No.1
\nof 2008 refers to alleged irregularities in land deal and the
\nillegality committed in allotment of government land in and around
\nBhuj town after the earthquake of January, 2001, when the petitioner
\nwas posted there as Collector of the district. Complaint filed before
\nlearned CJM, Bhuj who ordered investigation and accordingly M.Case
\nNo.1 of 2008 was registered. In the said complaint, there is no
\nreference or even connection to any alleged use of Mobile phones by
\nthe petitioner for which the bills were allegedly paid by the private
\ncompanies.\n<\/p>\n
\t6.
\n\tOn the other hand, the complaint bearing I-C.R.No.3 of 2010 is
\nconfined only to allegations that petitioner while discharging his
\nduties as Collector, Kachchh had procured two mobile sim cards from
\nprivate companies and for which for nearly 5 years the telephone
\nbills were paid by the said companies.\n<\/p>\n
\t7.
\n\tIn nutshell, the allegations contained in both the complaints are
\ntotally different and distinct. Both the complaints relate to
\ndifferent allegations and different alleged irregularities and
\nillegalities. It cannot be stated that I-C.R.No.3 of 2010 pertains to
\nor arise out of same set of allegations contained in M.Case No.1 of
\n2008. The first contention of the petitioner that for the same event
\ntwo separate FIRs are registered, must be rejected. With respect to
\nsecond contention that the investigation is completed in the M.Case
\nNo.1 of 2008 with respect to all allegations, it may be recorded that
\nthe report dated 1.4.2010 on the basis of which the provision of
\nPrevention of Corruption Act were dropped \/ deleted from M.Case No.1
\nof 2008 itself suggests that the investigation was not fully
\ncompleted. It may be noted that the petitioner with the permission of
\nthe Court was interrogated by the Investigating Officer, however,
\nthat itself would not indicate that the entire investigation is
\ncarried out and completed.\n<\/p>\n
\t8.
\n\tIf at all, I am of the opinion that initial step of the State to add
\nthe provisions of Prevention of Corruption Act in existing complaint
\nbearing M.Case No.1 of 2008 was wholly erroneous.  Ex-facie there
\nis no direct link between the two set of allegations. As already
\nnoted, M.Case No.1 of 2008 pertains to alleged involvement of the
\npetitioner in irregularities of allotment of Government land as a
\nCollector. I-C.R.No.3 of 2010 pertains to alleged use of mobile
\nphones by the petitioner at the cost of the private companies. In
\nreport dated 1.4.2010 filed by Investigating Agency before the
\nSpecial Court also it has been stated that as there is no revelation
\nthat the allegation of misuse of mobile phones had any  link
\nwith allotment of land, which is subject matter of M.Case No.1 of
\n2008.\n<\/p>\n
\t 9.
\n\tIn the case of T.T.Antony (supra), the Apex court came to the
\nconclusion that there can be no second FIR and no fresh investigation
\non receipt of every subsequent information in respect of the
\ncognizable offences. In the present case, facts are vitally
\ndifferent.\n<\/p>\n
\t10.
\n\tI am, therefore, of the opinion that the investigation in I-C.R.No.3
\nof 2010 cannot be scuttled. Quashing petition is therefore
\ndismissed.”\n<\/p>\n
(Emphasis
\nSupplied)<\/p>\n
 \tEven
\non perusal of the aforesaid decision of this Court in respect of the
\nvery offence i.e. I-C.R. No.3 of 2010, it transpires that this Court
\nin the aforesaid decision has also prima facie accepted the case of
\nthe prosecution.\n<\/p>\n
\tSo
\n\tfar as the decision of the Apex Court relied upon by the learned
\n\tadvocate for the petitioner in the case of  Inder Mohan
\n\tGoswami (supra), especially paragraphs 54, 55 and 56,
\n\twherein it is held that the Court must very carefully examine
\n\twhether the criminal complaint or FIR has not been filed with an
\n\toblique motive. The learned advocate for the petitioner is not able
\n\tto point out any thing from the record as regards mala fide as
\n\talleged. Here in the present case, the trial Court after
\n\tascertaining all the facts and circumstances of the case as well as
\n\tevidence on record had issued the summons and thereafter,
\n\tnon-bailable warrant. Thus, the facts of the present case are
\n\tmaterially different.\n<\/p>\n
8.1
\n\tThe learned advocate for the petitioner has relied upon the decision
\nof the Apex Court in the case of T.T.Antony (supra),
\n to the extent that the Apex court came to the conclusion that there
\ncan be no second FIR and no fresh investigation on receipt of every
\nsubsequent information in respect of the cognizable offences. In the
\npresent case, facts are vitally different.\n<\/p>\n
8.2\tIn
\nthe case of State of Haryana (supra), the Apex Court
\nhas held that the expression ‘arrest’ has neither been defined in
\nCrPC nor in Indian Penal Code or any other enactment dealing with
\ncriminal offences. However, from Sections 46(1) and (2) of the CrPC,
\nthis much is clear that in order to make an arrest the police officer
\nor other person making the same shall actually touch or confine the
\nbody of the person to be arrested, unless there be submission to the
\ncustody by word or action. The said decision would not be of any help
\nto the petitioner since the facts of the present case are materially
\ndifferent.\n<\/p>\n
8.3\tIn
\nthe case of Kunhayammed (supra), the Apex Court has
\nheld that the dismissal of a Special Leave Petition in limine by a
\nnon-speaking order does not justify any inference that by necessary
\nimplication the contentions raised in the Special Leave Petition on
\nthe merits of the case have been rejected by the Supreme Court and
\nthat such dismissal of the Special Leave Petition will not preclude
\nthe party from moving the High Court for seeking relief under Article
\n226 of the Constitution of India. Here it is pertinent to note that
\nthe petition before the Supreme Court was withdrawn by the
\npetitioner. Thus, the decision rendered by the High Court on 28th
\nOctober 2010 is binding to the parties.\n<\/p>\n
\tMr.P.K.\n<\/p>\n
\tJani, learned Public Prosecutor, has also relied upon a decision in
\n\tthe case of T.T. Antony (supra). Here it would be
\n\tbeneficial to reproduce the relevant paragraph of the said decision
\n\tas under :\n<\/p>\n
“20.\n<\/p>\n
\t…  … … On receipt of information about a cognizable offence or
\nan incident giving rise to a cognizable offence or offences and on
\nentering the FIR in the station house diary,  the officer in charge
\nof a police station has to investigate not merely the cognizable
\noffence reported in the FIR but also other connected offences found
\nto have been committed in the course of the same transaction or the
\nsame occurrence and file one or more reports as provided in Section
\n173 CrPC.”\n<\/p>\n
 \t(Emphasis
\nSupplied)<\/p>\n
\tIt
\n\tis required to be noted that the trial Court while dealing with the
\n\tsaid applications at Marks-5 and 10, has relied upon a decision of
\n\tthis Court in the case of Ajendraprasad Narendraprasad Pandey
\n\tv. State of Gujarat,<\/a> reported in 2006(2) GLH 412, and
\n\tpassed the order dated 23rd
\n\tNovember 2010.\n<\/p>\n
In
\n\tview of aforesaid and in light of the above cited decision of the
\n\tApex Court relied upon by the learned Public Prosecutor, I am of the
\n\topinion that the view taken by the trial Court is just and proper.
\n\tThe trial Court has assigned cogent and convincing reasons for
\n\tarriving at the conclusion. Over and above the reasons assigned
\n\thereinabove, I adopt the reasons assigned by the trial Court and do
\n\tnot find any illegality much less any perversity in the findings
\n\trecorded by the trial Court. No case is made out to interfere with
\n\tthe findings recorded by the trial Court. It is required to be noted
\n\tthat the trial Court has after hearing the parties and assigning
\n\tcogent and convincing reasons rejected the applications of the
\n\tpetitioner at Marks 5 and 10. Hence, present petition deserves to be
\n\tdismissed.\n<\/p>\n
\tFor
\n\tthe foregoing reasons, present petition fails and is, accordingly,
\n\tdismissed. Rule is discharged. Interim relief stands vacated.\n<\/p>\n
\t \tHowever,
\n\twith a view to ascertain the bona fides of the petitioner and to put
\n\tthe State machinery in a right direction in criminal proceedings, in
\n\tthe interest of justice, the order dated 23rd November
\n\t2010, which was stayed by this Court till date, is kept in abeyance
\n\tupto 17th February 2011, on condition that the petitioner
\n\twill appear before the concerned trial Court on that day. It is
\n\tclarified that no extension will be granted, if the petitioner does
\n\tnot comply with the aforesaid order.\n<\/p>\n
(K.S.\n<\/p>\n
Jhaveri, J)<\/p>\n
Aakar<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pradeep vs State on 11 February, 2011 Author: Ks Jhaveri,&Nbsp; 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-126118","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPradeep vs State on 11 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pradeep-vs-state-on-11-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pradeep vs State on 11 February, 2011 - 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