Jharkhand High Court
Jharkhand Against Corruption Through ... vs Chief Secretory on 6 May, 2013
Author: Prakash Tatia
Bench: Chief Justice, Jaya Roy
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No. 89 of 2013
with
I.A. No. 2766 of 2013
Jharkhand Against Corruption ..........Petitioner
Vrs.
The State of Jharkhand and others ...... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY
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For the Petitioner: Mr. Rajeev Kumar, Advocate
For the Respondents: Mr. M.S. Anwar, A.G.
Md. Mokhtar Khan, Adv., C.B.I.
Sh. R. Pandey, Adv.
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Order No.9 Dated 6th May, 2013.
I.A. No.2766 of 2013
Heard learned counsel for the applicant, Smt. Sita Soren,
on her I.A. No. 2766 of 2013, seeking permission to intervene in
this matter so that she may bring on record true facts.
2. It will be appropriate to recapitulate the facts of the case
that in the election of Rajya Sabha in the State of Jharkhand,
there were serious allegations of giving bribe for votes and it is
popularly known as "Horse Trading" during election. In view of
the serious allegations coupled with the recovery of about more
than Rs. 2 crores, the Election Commissioner issued notification
on 30.3.2012 whereby counting of the votes of the final election
of the Council of States-Rajya Sabha was stayed. Two petitions,
one being 'Public Interest Litigation' and another individual
litigation were filed which are registered as W.P.(PIL) No.1801
of 2012 and another W.P.(C) No. 1802 of 2012. Both the
petitions were heard together and dismissed by this Court vide
Judgment dated 05.04.2012 in which one of us
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(Prakash Tatia, C.J.) was a party. While dismissing the petitions,
the matter was handed over to C.B.I. for investigation and for
taking further steps. In pursuance of the said Judgment dated
05.04.2012, C.B.I. registered a case and started investigation. The present petition has been filed with the allegation that the investigation is not proceeding in spite of passage of long period. However, petitioner alleged that during pendency of the investigation, the witnesses namely Vikash Kumar @ Shunty Pandey, Vikash Singh and one Jaya Kant Kumar, who are the prosecution witnesses, have been threatened and there is allegation of abduction as levelled by the complainant on the basis of which a F.I.R. was registered by the police. In that case also, the accused is not being apprehended. The accused is the applicant of I.A. No. 2766 of 2013 namely, Smt. Sita Soren. When this matter was listed before this Court on 11 th January, 2013, this Court directed the State Government to give their stand on the plea of the petitioner that some of witnesses have been tortured and one of the witness has been kidnapped and F.I.R. has been registered and in that situation, what steps have been taken by the State Government to protect the witnesses in C.B.I. case. On 22nd January, 2013, C.B.I. submitted investigation report in a sealed cover which after perusal, to maintain secrecy, we returned back it to learned counsel for the C.B.I. It was submitted on 22nd January,2013 that investigation is in the process of completion and for taking further steps, some administrative sanction will be necessary, therefore, two 3 months time was required. This Court observed that since this investigation is at the final stage, seeking time of two months is too large time, however, C.B.I. was given above time. On 22nd January, 2013, the status report was submitted by the State Government also, obviously, to answer the allegations of torture and kidnapping, referred above, wherein the present applicant is the accused. This Court ordered on 22nd January, 2013 that since there are serious allegations and matter is sensitive one, without observing anything, we directed the State Government to complete the investigation expeditiously so as to find out the truth in the matter.
3. Thereafter, the matter came-up before this Court on 19th February,2013. On that day, learned counsel, who appeared for Smt. Sita Soren in I.A. No.2766 of 2013, pointed that he has filed one Vakalatnama on behalf of Sri M.L. Manjhi, who is father of the applicant Smt. Sita Soren, M.L.A. This Court observed that mere filing of the power without one being party is of no help, then this Court observed that otherwise also in this matter the only direction issued to the State Government is to complete the investigation and then the State Government was directed to submit status report within two weeks so as to know the progress in the investigation. On 06th March, 2013, learned counsel for the petitioner submitted that the investigation in the alleged case of kidnapping of one of the witnesses in the case of Horse Trading in Rajya Sabha Election, 2012 is not proceeding and the accused is not being arrested. It 4 was pointed out that accused has already been provided with security personnel from the State and the accused is moving with security personnel and, therefore, the State has every knowledge of movement of the accused of the case, and if the accused is required to be arrested for the lawful reason, then why the I.O. is not arresting the accused. This Court took note of this fact and found that it is difficult to believe that security personnel of the State, obviously, who are attached to the applicant-accused, have no contact with their higher officers including investigating agency and this Court observed that in this situation, it is difficult to believe that if arrest of the accused is necessary, in that situation why the accused has not been arrested. Today, it is submitted by the learned Advocate General that the applicant-accused has yet not been arrested.
4. In the backdrop of these facts, this I.A. No. 2766 of 2013 has been submitted by Smt. Sita Soren in this Court on 4th May, 2013 through her counsel. Applicant Smt. Sita Soren has pointed out that her father lodged a complaint case against husband of Smt. Reena Devi and her brother Pramod Kumar Pandey, who was working as a Driver of the applicant- intervener, for theft of 'Tippers' and their spare parts. Learned counsel for the applicant pointed out that 'Tippers' are the Dumper. It is submitted that only as a counter blast, the allegation of kidnapping has been levelled against the applicant and she lodged F.I.R. i.e., Doranda P.S. Case No. 616/2012 under Section363 and 365 of the I.P.C. against the intervener. It 5 is submitted that the intervener is availing the remedy given under law and not an absconder and at present, one Special Leave Petition (Criminal) No. 3827 of 2013 is pending before the Hon'ble Supreme Court in which she has prayed for Anticipatory Bail. It is submitted that the writ petitioner is trying to mislead the Court by giving incomplete information. In view of the above reasons, the applicant may be given opportunity of being heard.
5. At this juncture, we may observe here that before entry of the applicant's father or applicant in this litigation, on 22nd January, 2013 it was pointed out that there are allegations of torture and kidnapping of the witnesses of serious case of Horse Trading in the Rajya Sabha Election, 2012, this Court observed that allegations are serious as well as sensitive and, therefore, without observing anything, this Court directed the State Government to complete the investigation expeditiously so as to find out the truth in the matter. It is well settled law that accused has no right of hearing during investigation. It is also well settled law that the Court cannot interfere in the investigation and, therefore, this Court directed the State Government to complete the investigation so as to find out the truth in the matter. This petition is also having the limited scope wherein none of the investigations is under challenge nor any direction has been sought for the C.B.I. that how the C.B.I. should proceed in this investigation. There is no prayer for interference and there cannot be prayer of any body as to how 6 the investigation is proceeding in the criminal case and particularly, the criminal case which has been registered on the complaint or on the report of complainant levelling allegations of torture and kidnapping of witnesses of Horse Trading case of C.B.I.
6. This Court is of the view that every witness is entitled to protection, if he has reasonable cause for presuming that there is threat because of he being a witness in criminal case. During the course of hearing, the State came out with the case that arrest of the accused is necessary. This Court never passed the order of arrest of any person etc. but sought only the status report and progress report of the investigation. It was the State, who stated that arrest of the accused is essential to complete the investigation. Then, this Court observed that in the fact situation, where the accused was in the full protection given by the State Government by providing securing guards, then how it can be believed that her movement is not known to the police and the State Government and we are of the view that if security guards were not informing the concerned police personnel and the State Government about the movement of the person, then what sort of the security and the security guards are? Therefore, this Court directed the State Government to explain the situation in which the accused, whose arrest is essential in the opinion of the investigating agency, is not being arrested.
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7. In the totality of the facts, which is given in detail so as to make things clear that neither the prosecution is in pursuance of the petitioner nor investigation is as per the direction or guidelines of this Court, nor the Court is interfering in the investigation and the Court will not pass any order which may amount to interference in the investigation of the case. The case is of serious nature as well as of sensitive nature but at the same time, it is the duty of the investigating agency to investigate the case with all due care and caution as well as full fairness. In these facts and circumstances, we cannot allow any body to enlarge the scope of this litigation wherein the Court is concerned with the completion of the investigation only in the Horse Trading case of Rajya Sabha Election-2012 and the protection to the witnesses of that case. If the applicant is permitted to become party and given opportunity of hearing, that will result into only making allegations and counter allegations. The Court itself is sufficiently competent to ignore and reject all allegations which may be levelled even by the petitioner which may have no relevance except the prayer that investigation in the Horse Trading of Rajya Sabha Election-2012 may be completed expeditiously without being uninfluenced and with all fairness by giving full protection to the witnesses and any person who is relevant in the matter. Therefore, the application filed by the applicant Smt. Sita Soren being I.A. No. 2766 of 2013 is hereby rejected.
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8. Principal Secretary, Home, Government of Jharkhand, Director General of Police, Government of Jharkhand and Senior Superintendent of Police, Ranchi are present in the Court in pursuance of order dated 15th April, 2013. After taking note of the allegation of kidnapping of one of the witnesses of Horse Trading of Rajya Sabha Election, 2012, we found that investigating agency finding some substance in the allegation, to complete the investigation, wanted to arrest one accused, Smt. Sita Soren. She is a Member of the Legislative Assembly and has been provided security guards also. Finding that fact situation, this Court has shown its surprise that how a persons with the security guards, provided by the State Government, is hiding herself and what the security guards are doing if they are with her and if security guards are not with the accused, then when they were withdrawn from a person to whom security was provided by the State Government. Whether the civilian are insecured and accused is more secured? Why the security was withdrawn from the accused person if it was necessary and provided because of threat to her life or her person?
9. Be that as it may be, Director General of Police, Government of Jharkhand submitted that the witness herself surrendered the security guards and lastly on 26th February, 2013 the P.A of the accused, Rakesh Choudhary, informed constable No. 775, Vikash Kumar Singh, to bring the accused from airport and then he brought her from airport and on the 9 same day at 3.00 p.m., with the constable No. 304, Chanchal Kumar Patar, on the way of Jamshedpur till Chawka, the accused gone with him thereafter, changed the vehicle. She has gone towards Jamshedpur and directed the Constable No. 304, Chanchal Kumar Patar, to return back. These persons are also not knowing where the accused has gone. Some details have been given with respect to steps taken for arrest of the accused. It is also submitted that Statement of one of the witnesses Vikash Kumar Pandey @ Shunty Pandey has been recorded under Section 164 Cr. P.C. The investigating team is searching the accused and trying to find out by tracing the call details of her telephone numbers. The investigating agency also obtained the IMEI numbers of the mobiles so that her location may be traced out, if SIM card is inserted in the same mobile set.
10. Be that as it may be, the accused has not yet been arrested even when she is a public figure and was provided with the security guards. We direct the Director General of Police, Government of Jharkhand to state before us whether the security guards were in touch with the accused after 19th February, 2013 and 26th February, 2013 on mobile, on what dates these security guards reported that the accused directed them not to report on duty as security guards for her and whether any such report is made part of the record or not and the security guards have been assigned other duty or not and if assigned, then on what duty?
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11. We direct the principal Secretary, Home, Government of Jharkhand and the Director General of Police, Government of Jharkhand to take more serious efforts in the matter of investigation and the mind may not be diverted from investigation to concentrate only upon one issue to arrest of the main accused because the investigation includes very many things other than the arrest also. At the same time, there is a caution that in the name of doing other works of investigation, if the arrest of accused is necessary, the appropriate action may be taken without any further delay. Therefore, status report be submitted by the respondent-State Government on the next date. On the next date, we are exempting appearance of the Principal Secretary, Home, Government of Jharkhand and the Director General of Police, Government of Jharkhand, who are present in the Court today.
12. Heard learned counsel for the C.B.I.
13. Learned counsel for the C.B.I submitted status report, which is, in fact, the conclusion report whereby the C.B.I has informed this Court that the prosecution has decided to prosecute the case and at present, everything has now been completed and they are proceeding to file charge-sheet, which may take maximum 15 days time.
14. We are returning the status report submitted by the C.B.I for the purpose of maintaining secrecy.
15. On 15th April, 2013, it has been stated by learned counsel for the petitioner that the C.B.I has already delayed the 11 investigation and during this period, one of the accused persons got bail from the trial court in such a serious matter. Upon query, learned counsel for the C.B.I submitted that earlier the case was before the State Police Agency and thereafter, it was handed over to the C.B.I only on 19th April, 2012. According to learned counsel for the C.B.I., on 20th April, 2012, an application was submitted for addition of the charges which have foundation in the F.I.R itself, but have not been mentioned in the F.I.R. while registering the F.I.R.
16. The matter requires serious consideration and, therefore, the C.B.I is directed to give some particulars to this Court, which are as under:
(a) When the criminal case was registered in the Horse Trading case of Rajya Sabha Election- 2012?
(b) When the mater reached to the C.B.I and registered as C.B.I. case?
(c) Before reaching to the C.B.I. what investigation was completed by the State investigating agency?
(d) In chronological orders, dates be given of the bail applications submitted in this case, and the copies of the orders may also be submitted which were passed on the bail applications.
17. Learned counsel for the C.B.I submitted that for cancellation of bail, the C.B.I has moved before higher Court.
18. We are not very much concerned with this plea because of the plain and simple reason that we are not interfering in the 12 right of any person in obtaining the order of the Court of law as the Court in their domain, the highest authority, to pass appropriate order, may it be grant of bail or may it be the rejection of the bail and we are making it clear that the Courts in seisin with the trial or may during the investigation, need not be influenced by any of the orders passed by us in this petition.
19. The State may submit status report by or before 11th June, 2013.
20. Put up this case on 9th May, 2013.
21. A copy of this order may be handed over to learned counsel for the C.B.I as well as learned counsel for the State.
(Prakash Tatia,C.J.) (Jaya Roy, J.) Sudhir/Alankar