Delhi High Court
Chandra Swami vs Cbi on 1 May, 1996
Equivalent citations: 1996(37)DRJ462
JUDGMENT Usha Mehra, J.
1. Right to life and liberty arc the hallmarks of our Constitution. Constitution of India guarantees the freedom of movement and zealously safeguard and protect the liberty of an Indian citizen. The Apex Court in few of its judicial pronouncements coined the maxim "Bail and not jail be the rule" while dealing with applications of bail. But at the same time, it has been laid down by the Apex Court in umpteen number of cases that while granting the concession of bail, it must be kept in mind that such liberty as enshrined in the Constitution should not he unbridled. It is subject to restrictions. Personal liberty can be enjoyed but not at the cost of moral norms and values of the society nor it should be outside the four walls of the law. If such liberty violates public policy and infringes the provisions of law then it has to be curtailed. Therefore, while dealing with the right of personal liberty of an individual and consequential curtailment on account of the restrictions imposed, Courts cannot be carried away or be under awe on account of the status of that individual, howsoever high that individual may be, he is not above law. Keeping this dictum in mind, we have to see whether petitioners have any cause of grievance.
2. To appreciate the arguments of the counsel for the parties, let us have quick glance at few facts of this case. The petitioners have been charged for an offence of cheating. The charges were levelled against these petitioners by one Mr.L.B.Pathak.
On the basis of those allegations an FIR was registered way back on 25th September,1987. On the basis of that FIR a complaint was filed in Court on 5th February,1988 under Section 120-B and 420 I.P.C. against both the petitioners. Investigation was taken up on the basis of the said complaint. Present petitioners, were arrested on 13th February, 1988. They applied for bail. 'The then Additional Chief Metropolitan Magistrate (in short 'ACMM') vide his order dated 17th February,1988 granted bail to both the petitioners. Petitioner No. 1 herein, Mr. Chandraswamy was primarily granted bail on account of his illness. ACMM took into consideration the report submitted by the joint medical examination of Jain Medical Centre and by the Doctors of Dr.Ram Manohar Lohia Hospital. Basing his order of bail on those medical reports submitted by the Doctors and as mentioned in para No,2 of his order, the ACMM granted bail to petitioner No.1. To petitioner No.2 Shri Kailash Nath Aggarwal bail was granted on account of his grand nephew's marriage. Keeping these factors into consideration ACMM enlarged them on bail. The said bail was not on merits. While contesting that application, C.B.I, had pointed out that the offences, alleged against the petitioners were very serious in nature. However, the Court without touching the merits of the case and without discussing the objections raised by C.B.I. granted bail keeping in view the medical status of the petitioner No.1 Mr. Chandraswamy and marriage ceremonies of petitioner No.2's grand nephew. The bail was granted of course subject to conditions which find mention in that order. One of the condition is that they will not leave the country except with prior permission of the Court, secondly they will not hamper the investigation in any manner directly or indirectly.
3. As per the version of prosecution, the investigation went on till about February,1996. The reason for such a long delay in completing the investigation, according to C.B.I., was primarily due to the fact that the alleged offence was committed in a foreign country. C.B.I, had to collect the documents and record statements of the witnesses in foreign countries. Hence it took time in collecting the documents and recording of statements. Till such time the allegations made in the complaint were substantially corroborated by cogent and reliable evidence, the C.B.I, could not file the report as envisaged under Section 173 Cr.P.C. Prima facie case had to be made out on the basis of material to be collected, otherwise prosecution could not substantiate the charge in the Court. It was only when prima facie material corroborating each and every allegation of the FIR was collected that the charge sheet could be filed. It was filed on 12th April,1996.
4. That the learned ACMM took cognizance on the basis of the material placed on record along with the charge sheet. He issued non-bailable warrants against both the petitioners. These petitioners were arrested on 2nd May,1996 at Madras. They were produced before the Magistrate and the said Magistrate directed them to appear before the CMM, Delhi. Accordingly, they appeared before the Duty Magistrate on 3rd May,1996. He after hearing the counsel for the parties directed them to appear before CMM. On 4th May,1996 after hearing the counsel for the parties, the impugned order was passed thereby refusing to enlarge the petitioners on bail and cancelling the bail already granted on 17th February,1988.
5. Aggreived by these two orders of 2nd and 4th May, 1996 respectively, whereby CMM took congnizance and issued non-bailable warrants and refusing to grant and cancelling the bail already granted, that the present petition has been filed. In this petition, two relief have been sought, namely, (i) quashing of the order dated 2nd May,1996 thereby taking cognizance and issue of non-bailable warrants and also order of 4th May,1996 thereby cancelling the bail already granted on 17th February,1988; and (ii) relief of bail.
6. So far as the first relief is concerned, petitioners reserved their right to address arguments at a later stage. They restricted their arguments only on the second relief i.e. grant of bail. Main plank of Mr. G. Ramaswamy, Senior Advocate's arguments was that CMM had no authority to cancel the bail ex parte. By issuing non- bailable warrants it amounted to cancellation of bail. CMM was fully aware that petitioners were on bail since 1988 and had not miss-used the' same. Nothing warranted the CMM to issue non-bailable warrants thereby depriving the petitioners the concession of bail which they had been enjoying without giving any cause to any one. Mr.G. Ramaswamy further contended that the CMM could not have issued Non-bailable warrants nor could have cancelled their bails without affording opportunity to the petitioners. Issuing of the non-bailable warrants without calling upon the petitioners amounted to cancellation of bail ex parte which act of the CMM is against the settled law. The charge sheet was filed after eight years. Mere filing of change sheet was no ground to cancel the bail particularly when the petitioners were already on bail. Moreover, bail once granted cannot be cancelled except in exceptional circumstances as indicated by various Courts including the Apex Court. Moreover, no fresh grounds have been assigned by the C.B.I, which compelled the CMM to pass the impugned orders. Issuance of non-bailable warrants was against the spirit of Section 87 Cr.P.C. which provides that warrants for arrest will be issued if the Court believes that the petitioners would abscond or will not obey the summons or fail to appear inspite of the summons having been served. Non of these eventualities existed in the case in hand. Section 204 Cr.P.C. which deals with the issue of process stipulates that in a warrant case, warrants can be issued only when the court comes to the conclusion that summons, for causing the accused to be brought or to appear at certain time before Court or appear at the time, may not be possible. Relying on Section 87 read with Section 204 Cr.P.C., Mr.G.Ramaswamy, Sr. Advocate contended that only summons should have been issued in this case because there was no material before the CMM produced by the C.B.I, to show that the petitioners would not have appeared in response to the summons or that they were going to abscond or would not be available at the time of trial. The CMM also lost sight of the fact that the petitioners had been enjoying bail which they have not miss-used till date. In the absence of any such material, issuance of non-bailable warrants in itself was bad. It is in this background, Mr.G.Ramaswamy contended that re- arrest of the petitioners was not only against the law but also of the facts of this case. Moreover, petitioners had furnished a bond under Form-45 agreeing to abide by the terms stipulated therein. In view of their having furnished the bond and agreeing to abide by it, the order of CMM to re- arrest was not only wrong but against the dictate of Supreme Court in the case of Free Legal Aid Committee, Jamshedpur v. State of Bihar, AIR 1982 SC page 1943 wherein the Supreme Court has gone on record to say that:
"To avoid hardship to an accused if the Magistrate, while releasing the accused on bail requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as-and when required before him but also to appear when called upon in the Court of Session. A Magistrate should normally follow this procedure unless there are any particular reasons for not doing so."
7. Having allowed the concession of bail way back in 1988 there was no justification to cancel the same and consequently taking them into custody. Supreme Court in the case of Aslam Babalal Desai v. State of Maharashtra held that mere filing of charge sheet is no ground to cancel the bail already granted. It further laid down the conditions though illustrative in nature to be kept in mind while cancelling the bail, those are, namely, :-
i) If accused miss-uses his liberty by indulging in similar criminal activity,
ii) Interferes with the course of investigation,
iii) Attempts to tamper with evidence or witnesses,
iv) Threatens the witnesses or indulges in similar activities which would hamper smooth investigation,
v) There is likelihood of his fleeing to another country,
vi) Attempt to make himself scarce by going underground or becoming unavailable to the investigating agency, vv) Attempts to place himself beyond the reach of his surety etc.
8. Relying on the observations of the Supreme Court in Aslam Babalal Desai's case (supra) Mr.G.Ramaswamy contended that in the case in hand there was no material before the CMM to take such drastic step. The investigation in this case has already been completed. Evidence stood collected. There was no apprehension nor an iota of evidence to prove that the petitioners tried or attempted to interfere with the evidence or the witnesses or made themselves scares or tried to abscond or flee from India. Rather till November,1995 petitioners had been going out of India. Even the C.B.I. in its affidavit filed in November,1995 clearly stated that there was no evidence to point that the petitioners tampered with the evidence. In the absence of any material indicating that any of the conditions as mentioned by the Supreme Court had been violated, the liberty enjoyed by the petitioners could not have been withdrawn. The seriousness of offence was also raised in 1988 when the bail was granted, therefore, mere saying that the charges are serious is no ground to cancel the bail.
9. The parameters of cancellation of bail have also been laid down by the Supreme Court in the case of Bhagirathi Judeja v. State of Gujarat 1984 CRL.L.J. page 160 when the Court observed that :-
"Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances."
10. The petitioners should not be detained by way of punishment. Since there is no evidence that they abused the concession of bail, question of re-arresting or cancellation of bail on the face of it is an illegal order. No allegations by the C.B.I, that petitioners miss-used the bail or that they at any time tried to tamper with evidence.
No request of cancellation of bail in writing was made by the C.B.I. The Court suo-
moto could not have cancelled the bail nor could import personal knowledge of any kind nor could drew presumption that petitioners miss-used the concession of bail granted in their favour.
11. So far as the curtailment of foreign visits are concerned, this Court permitted the petitioners to visit vide order dated 24th November,1995 in Crl.M.4352/95 in CRL.M(M).447/88 which order was on merits and after considering all the apprehensions expressed by the C.B.I.
12. Mr.A.K.Dutta, appearing for the C.B.I, while refuting the arguments of Mr.G.Ramaswamy contended that Code of Criminal Procedure (in short 'Cr.P.C.') prescribe different stages concerning a criminal case. Chapter XII Cr.P.C. deals with the information to the police and their powers to investigate. This Chapter starts from Section 154 and ends with Section 173 Cr.P.C. which deals with the report of police officer on completion of investigation. Once the investigation is complete, the police files the report called the Charge sheet under Section 173. Thereafter Chapter XV Cr.P.C. comes into play. It deals with the complaint to Magistrate and prescribes procedure for taking cognizance by a Magistrate. If the Magistrate thinks that cognizance has to be taken then the matter shifts to Chapter XVI Cr.P.C. which deals with commencement of proceedings before the Magistrates. That is where the Magistrate issues the process under Section 204. By pointing out these provisions, Mr. A.K.Dutta contended that at each stage the procedure and follow up action are different. When bail was granted to the petitioners on 17th February, 1988 the matter was at the stage of investigation. The Court had yet not taken any cognizance nor the charge sheet had been filed. At that time, the only material before the Court was the complaint/FIR. The Corroborated evidence had yet to be collected. At that stage, the seriousness and the gravity of the offence could not be apprehended. In fact when the bail was granted on 17th February, 1988, active investigation had not yet commenced. As the offence had been committed in foreign countries, it took time for the investigation to conclude and to collect evidence and record statements. Therefore, till such time, prima facie substantial material could come in the hands of the investigating agency, the seriousness of the offence was not appreciated. Even the prosecution itself was not sure whether the allegations levelled in the complaint would be substantiated or not. Therefore, when bail application was filed in 1988, in absence of corroborative material, the prosecution could not take the matter seriously. Moreover, the bail was granted primarily keeping in view the medical status of the petitioner No. 1 and marriage ceremonies in the family of petitioner No.2. MrA.K.Dutta, however, conceded that no application for cancellation of the bail was moved by the C.B.I. For that he stated that it could not be done until and unless the investigation was complete and prima facie evidence and material had come into the hands of the C.B.I. But with the charge sheet which was filed on 12th April,1996 material documents and evidence indicating the cheating done by the petitioners coupled with the fact that during the course of this investigation further revelation about the involvement of the petitioners in almost 8 to 10 cases of cheating of other persons also fall into the hands of the C.B.I. This material filed on record would justify the apprehension of the C.B.I, that if the petitioners come to know of the fresh evidence coming into the hands of the C.B.I., they would try to tamper with the same and this is what was expressed before the Court at the time of filing charge sheet and even when order dated 4th May,1996 was passed. In fact CMM after considering all aspects of the case and the apprehensions of the prosecution came to the conclusion that it was not a case where summons should be issued. In doing so the CMM was justified as C.B.I, expressed apprehensions against the petitioners. Moreover, CMM was empowered to issue non-bailable warrants under Section 204 Cr.P.C. In this regard, Mr.A.K.Dutta placed reliance on the decision of the Supreme Court in the case of Rajnikant Jivanlal Patel and Anr. v. Intelligence Officer, Narcotic Control Bureau, . "The Court was dealing with a matter where the charge sheet was not filed within the stipulated period and, therefore, the provisions of Section 167(2) were invoked. The Court opined that the bail under Section 167(2), where the charge sheet was not filed within time, be granted to such a person due to default. The accused be released on bail on the default of the prosecution in not filing the charge sheet within the prescribed period. In such circumstances grant of bail to the accused is an absolute right. But at the same time, if the investigation reveals that the accused had committed a serious offence and the charge sheet was filed, then the bail granted under the proviso(a) of Section 167(2) should be cancelled, because if the bail had been granted in default under Section 167(2) it would amount to granting bail under Section 437(1) & (2) Cr.P.C. Sub Section (5) of Section 437 empowers the Court to re-arrest the accused provided court is satisfied that the circumstances exist warranting the cancellation of the bail. Relying on this provision the Court while taking cognizance ordered for the re-arrest of the petitioners as the circumstances did exist to do so. No separate application seeking cancellation of bail was necessary. Sub Section (5) no where stipulates that order of arrest be passed on an application. Since sufficient material had been placed on record corroborating the allegations made in the complaint coupled with the apprehensions expressed by the C.B.I, due to serious ness of the offence of cheating involving the petitioners in number of cases, the orders passed by learned CMM is justified.
13. I have tried to paint on this canvas the scenario under which the bail had been sought. Arguments had been, heard in extenso in order to understand as to what prompted the learned CMM to decline bail to the petitioners. At the outset, I may mention that Mr.G.Ramaswamy, Sr.Advocate appearing for the petitioners had submitted that he was not pressing at this stage the first relief sought under Section 482 Cr.P.C. i.e. quashing and setting aside the proceedings dated 2nd May,1996 and of 4th May, 1996 respectively. He, in fact, restricted his arguments for the grant of bail covered under Section 439 Cr.P.C. Therefore, any observation made while disposing of this prayer under Section 439 Cr.P.C. will have no bearing on his prayer mentioned in para l(a) of the prayer clause.
14. Question arises whether the learned CMM had sufficient material to reject the bail particularly when the petitioners were already enjoying that liberty. Whether CMM ought or ought not to have issued non-bailable warrants is not the issue at this stage. Petitioners had presented two applications for consideration, one of bail and the other for recalling the order regarding issuing of non-bailable warrants. While disposing the second application CMM considered the submission of the counsel for petitioners that bail could not be cancelled ex parte. Issuance of non- bailable warrants amounted to cancellation of bail. While opposing this application, the C.B.I, asked for cancellation of the bail and justified the order on the basis of material available. After hearing at length the impugned order was passed. Since petitioners application for recalling the order was dismissed after giving full opportunity, therefore, it cannot be said that no reasonable opportunity was afforded to the petitioners before cancelling their bail. Whether issuance of non-bailable warrants (NEW) by the CMM amounted to cancellation of bail that argument would be considered under first prayer under Section 482 Cr.P.C. Similarly the question whether under the provisions of Section 87 and Section 204 Cr.P.C. the Court could only issue summons and not warrants, will also be gone into while dealing with their prayer No.1 under Section 482 Cr.P.C. Suffice it to say, that bail has been sought by the petitioners on the ground that they have not misused this concession nor interfered either with the investigation or with the evidence and witnesses. There is no apprehension of their fleeing from this country. Once these facts are alleged the Court has to grant them bail. Moreover, bail once granted cannot be cancelled except in special circumstances. There is no quarrel with this proposition. However, if the facts show otherwise and raises reasonable apprehension or expected interference and tampering with evidence, then to my mind, petitioners are not entitled to the concession of bail. Admittedly, petitioners were on bail since 17th February,1988. That by itself, to my mind, does not guarantee that they can again get the bail or that that bail was in perpetuity and could not be recalled. At this juncture, it must be pointed out that apparently sufficient material has been placed on record coupled with the apprehension expressed by the prosecution that the petitioners will tamper with the evidence freshly collected, to justify in refusing their bail and for recalling the order of bail granted on 17th February, 1988. This apprehension has not only been expressed by the C.B.I, for the first time before CMM at the stage of arguments but in fact had been expressed as soon as fresh material was collected after recording the statements of Mr. W.E. Millar and Mr. Kishore Kamdar. That is the reason C.B.I, opposed petitioners application seeking permission of the Court to go out of India. Keeping in view the apprehension expressed by C.B.I., the Apex Court stayed the order of this Court thereby granting permission to the petitioners to leave the country. No doubt C.B.I, filed an affidavit dated November, 1995 stating therein that there was no evidence to show that the petitioners were tampering but at the same time there existed strong apprehensions that they would do so. Reason for this strong apprehensions were explained by the counsel for the C.B.I, that is the fresh material collected which emerged from the statements of Mr.W.E.Millar and of Mr.Kishore Kamdar showing petitioners having indulged in similar criminal activities. Their statements revealed acts of cheating by the petitioners with number of persons. Basing on these apprehensions expressed and prima facie proved from the documents placed on record it cannot be said that they are entitled as of right to get the bail because such a concession they have already enjoyed. On account of strong apprehensions expressed of tampering, if the liberty of the petitioners is not curtailed or withdrawn, they may try to influence the witnesses and tamper the evidence cannot be ruled out. For expressing this apprehension, to my mind, it was not necessary for the prosecution to file a separate application. The apprehensions based on the material placed on record could be expressed orally. As already observed, because of these apprehensions the Apex Court had to curtail the movement of the petitioners. They were not permitted to leave the country. If these apprehensions were unfounded and without substance, then the order of this Court granting permission to go out of India would not have been stayed by the Apex Court. In fact when petitioners were granted bail on 17th February, 1988 the matter was at preliminary stage. Investigation was yet to start. Moreover, the contents of the complaint were in the realm of mere allegations. It required to be substantiated. It is only after investigation revealed facts that C.B.I. started expressing apprehensions of tampering. The scenario changed as to what it was in February, 1988 to what it is now. From the scrutiny of the material and the submissions it can prima facie be said that the petitioners, if granted bail, may try to tamper the evidence or influence the witnesses. In fact the CMM or for that matter any Court under Sub Section 5 of Section 437 Cr.P.C. has the power to re-arrest an accused if there are apprehensions that he will either tamper the evidence or influence the witnesses, which in this case has been strongly expressed by the prosecution. Petitioners would not be justified to say that Court has no power to recall the bail or refuse the same. For refusal this Court has not to look else where, the facts placed on record are sufficient to form an opinion. Prosecutor on the basis of material placed on record expressed serious apprehensions of tampering by the petitioners.
15. Mr.G. Ramaswamy, Sr. Advocate fairly conceded that technically nothing survived to argue with regard to seeking stay of non-bailable warrants because that have already been executed.
16. Turning to the question of bail, one of the factor relied by the petitioners that they never mis- used the bail hence automatically become entitled to it after it was cancelled. I must say that the parameters for cancellation of bail as indicated by Supreme Court have been considered by this Court and I am sure these must have been borne in mind by the CMM while coming to the conclusion that their liberty be curtailed. Their liberty is not above law. Since strong apprehensions have been expressed particularly keeping in view their political clout at national as well as of international level it cannot be said that apprehensions are un- founded or that petitioners are incapable of doing so.
17. We have to consider whether any ground has been made out by the petitioners for the grant of bail. Mr.A.K.Dutta, counsel for C.B.I, expressed in no uncertain terms that fresh materials have been collected by the C.B.I. The petitioners being influential persons, having influence almost all over the world, if they come to know the details of the material collected against them, they would surely try to tamper with the same either by destroying that evidence or by putting pressure on the witnesses. In view of this strong apprehension expressed by the prosecution, to my mind, it will not be safe to release the petitioners on bail particularly when it is stated that umpteen number of serious cases of cheating involving crores of rupees are pending against them. No doubt the investigation in this case has been completed and statements recorded, but what about the other involving charge of cheating of serious nature? There I was told still materials are to be collected. Hence, the apprehension as expressed by the prosecution cannot be brushed aside. Given chance, anybody what to talk of the petitioners would try to destroy the evidence. Then why given them that chance. At this stage, if the bail is granted, it would as Mr.A.K.Dutta stated would amount to putting a seal of appreciation on the acts of the petitioners. Admittedly, refusal to grant bail should not be with the intention to punish an accused but at the same time one cannot loose sight of the fact that no one should be allowed to tamper with evidence or influence the witnesses. If these are the reasons justifying these apprehensions then bail must not be granted. Mere filing of charge sheet was not the ground to refuse the bail. Refusal of bail in this case is based on the serious apprehensions expressed by prosecution. These apprehensions are not speculative in nature but in fact based on the fresh material discovered by the C.B.I.
18. The contention of Mr.G.Ramaswamy that the cause of action alleged to have accrued out of India, therefore, liberty in India should not be curtailed. This argument cut no ice because in the modern society all the countries are interlinked and connected with satelite. A person need not visit the other country, suffice it for him to do so by using the latest electronic equipments including Cellular Phones. Through his contacts abroad, the chances of his trying to tamper the evidence or pressurise the witnesses cannot be overlooked. This apprehension of the C.B.I.has to be kept in mind while considering the right of the petitioners to enjoy the liberty and concession of bail. Mr. G.Ramaswamy's repeated argument that petitioners never "miss-used " this liberty, is devoid of merits. Petitioners were not to indulge in similar criminal activities, but the record and the material so far collected speaks otherwise. They had not only indulged in the act of cheating with the complainant but have been involved in similar activities qua others. Will it not be called mis-use of liberty by the petitioners?
19. For the reasons recorded above, at this stage, I do not consider it a fit case for the grant of bail. Before closing, I must mention the request made by Mr.G. Ramaswamy that the petitioners who are used to good living should be transferred, to their houses which may be treated as house arrest. I am afraid if this argument is accepted, then economic offenders who arc used to good living should also be provided with this latitude. If this criteria is accepted, then almost all the offenders, be that economic offences or criminals be provided this facility. Why the rich & mighty, why not the poors? The Constitution of India does not discriminate on the ground of status. Simply because the petitioner No. 1 is called Godman and proclaims himself to be a Swamy, does not mean he is above law. All arc equal before the law. Hence, this request can not be acceded.
20. No merits in the application under Section 439 Cr.P.C. Dismissed. Any observation or expression made above will have no bearing on the merits of the case. Now to come up for arguments on petitioners application under Section 482 Cr.P.C. on 16th May,1996.