Gujarat High Court
Javed Anand vs State Of Gujarat on 8 February, 2019
Equivalent citations: AIRONLINE 2019 GUJ 975
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/10200/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10200 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary
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JAVED ANAND
Versus
STATE OF GUJARAT
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Appearance:
MR. MIHIR THAKORE, LD. SNR. COUNSEL with MR MM TIRMIZI(1117) for
the PETITIONER(s) No. 1,2
MR. MITESH AMIN, LD. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/02/2019
CAV JUDGMENT
1. By this application under section 438 of the Cr.P.C., 1973 (for short "the Code"), the applicants-original accused have Page 1 of 56 R/CR.MA/10200/2018 CAV JUDGMENT prayed for the following reliefs;
"(A) YOUR LORDSHIPS BE PLEASED TO order that in the event of arrest of the applicants in connection with the offence registered as CR No.I-20/2018 with DCB Police Station, Ahmedabad City, the applicant be released on bail in the interest of justice.
(B) YOUR LORDSHIPS BE PLEASED TO order that pending admission and, or final disposal of this application the applicants be not arrested in connection with the offence registered as CR No.I-20/2018 with DCB Police Station, Ahmedabad City, in the interest of justice.
(C ) YOUR LORDSHIPS BE PLEASED TO grant such other and further relief in the interest of justice."
2. The first information report registered with the DCB Police Station, Ahmedabad City bearing C.R. No.I-20 of 2018 reads as under;
"I, Raeeshan Azizkhan Pathan, Aged 51 years, Occupation: Business, Resident of 28, Ajit Residency, Mil Compound, Rakhiyal, Ahmedabad;
I am residing at the above mentioned address with my family past ten years and doing the business of construction and purchase and sale of vehicles.
I was working as a field coordinator with the CJP (Citizen for Justice and Peace) Trust between the period from 28.02.2002 to 18.01.2008 at Ahmedabad. I was doing the work of the trust as per the instructions of the trustee, namely, Smt. Teesta D/o. Atul Setalvad, Resident of Nirant Bungalows, Juhu Tara Road, Mumbai (West). Besides, another trust, namely, Sabrang Trust run and managed by Teesta Setalvad and her husband Javed Anand had also obtained the fund for the victims of the riots in the name of CJP (Citizen for Justice and Peace).
The Government of India had floated a scheme viz. "Scheme for experimental and Innovative Programme for Page 2 of 56 R/CR.MA/10200/2018 CAV JUDGMENT education at the elementary stage including nonformal education under the Department of School Education & the Sarv Siksha Abhiyan. Under the said scheme, the Director cum Trustee Smt. Teesta Setalvad and Mr. Javed Anand, Trustee of the Sabrang Trust had obtained an amount of Rs.1.40 Crore from the MHRD (Ministry of Human Resource Development) towards the project "KHOJ" between the period 2010 and 2013.
I addressed a letter dated 9.5.2014 to the Secretary, HRD Ministry, New Delhi, Government of India to inquire about the amount obtained by the Sabrang Trust. In this regard, they recommended to constitute a committee. It revealed from the investigation conducted by the committee that Smt. Teesta Setalvad D/o. Atul Setalvad, Director cum Trustee and Mr. Javed Anand, who is also a trustee of the Sabrang Trust illegally got the amount sanctioned and in the said illegal activity, the officers/employees of the HRD Ministry are also involved.
An opinion of the NCERT (National Council of Educational Research & Training) was sought for by the HRD Ministry, Government of India. The NCERT gave a negative opinion. Despite the same, the HRD Ministry constituted a team called FIT (Field Investigating Team) in which two persons were appointed viz. (I) on behalf of the HRD Ministry, Government of India, Ms. Seema Rajput and (ii) Shri M.S. Nimbalkar of the Maharashtra Primary Education Council. They gave their report in favour of the Sabrang Trust for its project "KHOJ". But in the said report also, in place of Mr. M.S. Nimbalkar, the name of another person, namely, Ms. Manisha Salgavkar, Gender Coordinator was mentioned. With the signature of only oner person, namely, Seema Rajput, the said report was submitted and on the basis of the said report, the project "KHOJ" was recommended to the Grant-in-Aid Committee for grant of Rs.1.40 Crore.
As per my knowledge, the Director cum Trustee of the Sabrang Trust Smt. Teesta D/o. Atul Setalvad, despite being the member of the CABE (Central Advisory Board for Education), appeared before the Grant-in-Aid Committee (GAIC) and made presentation for its project and got sanctioned the same. The said CABE is one of the Boards of the MHRD. Despite the same, by misusing her post, got illegally sanctioned an amount of Rs.1.40 Page 3 of 56 R/CR.MA/10200/2018 CAV JUDGMENT Crore for her Sabrang Trust.
In the aforesaid meeting of the Grant-in-Aid Committee (GAIC), one member of the said committee raised a question on the authenticity of this proposal and draw the attention towards the scheme of the Government under which demand of disproportionate amount was raised. Despite the same, the concerned officers illegally sanctioned the huge amount of grant (public money).
A huge part of the amount sanctioned in favour of the Sabrang Trust for its project "KHOJ" has been utilized for their personal use. The expense report has also not been sought for by the HRD Ministry and by worthily assessed the expenses, has not tried to stop the misuse of public money.
Besides, in the report of the Committee which was constituted by the HRD department considering our application, it is clearly stated that this literature of Ms. Teesta Setalvad, Director cum Trustee of the project "KHOJ" of the Sabrang is likely to create enmity, ill-will and differences between the two communities.
Besides, the allegations have also been made on the Constitution and the Court of justice which is dangerous to national integration.
Hence, It is my complaint to carry out an investigation in accordance with law against the officers/employees of the HRD Ministry, Government of India and Smt. Teesta D/o. Atuul Setalvad and her husband Javed Anand (Trustee, Sabrang Trust) as Smt. Teesta D/o. Atuul Setalvad (Director cum Trustee, Sabrang Trust) and her husband Javed Anand (Trustee, Sabrang Trust), resident of Nirant Bungalows, Juhu Tara Road, Mumbai (West), in collusion with the officers/employees of the HRD Ministry, Government of India hatched a criminal conspiracy and illegally obtained an amount of Rs.1.40 Crore from the HRD Ministry with the mala fide intention and utilized the same for their personal use and by misusing her post has illegally taken the benefit of the same. Further the literature of Ms. Teesta Setalvad may create an enmity, ill-will and differences between the two communities. Besides, they also made allegations on the Constitution and the Court of justice which is dangerous to the Page 4 of 56 R/CR.MA/10200/2018 CAV JUDGMENT national integration. My witnesses would be those who may be found during the investigation.
The facts of this complaint are as per what has been stated by me. I have received the copy of the complaint."
3. Thus, the allegations levelled in the first information report are as follows;
(a) The applicants are alleged to have misappropriated a huge amount as trustees of the Sabrang Trust for their personal use The amount alleged to have been misappropriated was sanctioned and allotted in favour of the Sabrang Trust for a particular project.
(b) The applicants through the Sabrang Trust though were not eligible for the grant, still managed to get the grant fraudulently sanctioned in collusion with the officials of the HRD Ministry. It is further alleged that the HRD Ministry did not seek any expense report from the applicants to ensure that the grant had been utilized for the purpose for which it was granted.
(c ) The applicant No.2, despite the purported conflict of interest (on account of her being one of the members of the CABE Committee) proceeded to collect the grants under the Scheme of Assistance under Innovative and Experimental Education Programs-Grants to the voluntary agencies under the Sarva Shiksha Abhiyan.
4. The applicant No.1 claims to be a journalist and social activist working in Mumbai past more than 37 years. He Page 5 of 56 R/CR.MA/10200/2018 CAV JUDGMENT claims to be a columnist, and writing regularly for the Indian Express, Times of India, Hindustan Times, Asian Age, The week and many periodicals and newspapers. The applicant No.1 is a founding trustee of the Sabrang Trust, Citizens for Justice and Peace and a co-editor of Sabrang India and online news magazine. The applicant claims to have been awarded with the "Knight of the Order of Merit" by the then French President in the year 2005 and 2007 respectively. The applicant No.1 claims to have been awarded with the Minorities Rights Award by the National Minorities Commission and many other awards for his writing and his work on communal harmony.
5. The applicant No.2 is the wife of the applicant No.1. She claims to be a writer, award winning journalist and educationist and human rights activist and founding trustee and secretary, Citizens for Justice and Peace (CJP). According to her, she has been a journalist since 1983 and was a reporter with The Daily and the Indian Express apart from being the Senior Correspondent with the Business India. According to the applicant No.2, she has been the editor of the Communalism Combat since August, 1993. She claims that apart from her work in the field of journalism, she is also recognized as a prominent Educationist, Social and Human Rights Activist due to her work with the organizations like the Citizens for Justice and Peace (as Secretary) and KHOJ, Education for a Plural India Programme (as Director). In the year 2007, she was conferred with the Padma Shri for her contribution in the field of Public Affairs in the State of Maharashtra.
6. It appears from the materials on record that the Page 6 of 56 R/CR.MA/10200/2018 CAV JUDGMENT applicants were served with a notice dated 31.03.2018 issued under section 41A of the Code asking them to appear before the officer in charge of the Respondent No.1- Police Station at 11:00 a.m on 01.04.2018. In the said notice, it was stated that an offence had been registered against them for the offences enumerated above. According to the applicants, on receipt of such notice dated 31.03.2018, they obtained a copy of the first information report. The applicants, by letter dated 01.04.2018, informed the officer in charge of the respondent No.1 -Police Station that they would not in a position to visit the police station and sought for some time to appear and cooperate with the investigation.
7. It appears that in the meantime, the applicants herein preferred an application in the Bombay High Court for transit anticipatory bail being the Anticipatory Bail Application No.627 of 2018.
8. The transit Anticipatory Bail Application No.627 of 2018 was heard by a learned Single Judge of the Bombay High Court, and the following order was passed;
"In the meantime, till the next date, the applicants are granted interim transit bail till 2nd May, 2018. Accordingly, the following order is passed.
ORDER (I) In the event of the arrest, the applicants are granted interim transit bail till 2nd May, 2018, on executing P.R. Bond in the sum of Rs.25,000/- each, with one or two sureties in the like amount;
(ii) The applicants shall appear before the concerned Officer on 6th April, 2018 at 10:00 a.m. Thereafter, the Page 7 of 56 R/CR.MA/10200/2018 CAV JUDGMENT applicant No.1 shall appear as and when called for.
(iii) Mr. Pranav Badheka undertakes to inform the above order passed today, to the concerned Investigating Officer.
(iv) Registry to place the aforesaid application before the Hon'ble the Acting Chief Justice to enable her to constitute a larger bench to decide the framed issues;
(v) In the eventuality, till the next date i.e. 2nd May, 2018, the reference is not enlisted for hearing, the applicants are at liberty to renew that prayer for continuation of the interim relief;
(vi) At this stage, learned counsel for the respondent No.1-State of Gujarat seeks stay of the order. The request for stay is rejected.
(vii) Stand over to 2nd May, 2018."
9. It also appears that the State of Gujarat challenged the order passed by the learned Single Judge of the Bombay High Court, granting transit anticipatory bail before the Supreme Court by filing the Special Leave to Appeal (Criminal) No.3135 of 2018. The Special Leave to Appeal came to be disposed of by the Supreme Court vide order dated 09.04.2018 in the following terms;
"Heard Mr. Tushar Mehta, learned Additional Solicitor General, Mr. Mahesh Jethmalani, learned senior counsel for the petitioner and Mr. C.U. Singh, learned senior counsel for respondent Nos.1 and 2.
Being an interim transit bail we make it clear that its life as granted by the High Court of Judicature at Bombay is limited upto 31st May, 2018. t is for the respondent Nos.1 and 2 to approach the competent forum in the State of Gujarat, within the said period for further appropriate relief. Needless to say that the Forum concerned will consider the matter on its own merit.Page 8 of 56 R/CR.MA/10200/2018 CAV JUDGMENT
The impugned order passed by the High Court of Judicature at Bombay will stand clarified to the above extent. The Special Leave Petition is disposed of as above. Pending application, if any, also stand disposed of."
10. The applicants, thereafter, preferred the Anticipatory Bail Application No.3025 of 2018 in the Sessions Court at Ahmedabad. The said application came to be rejected by the Sessions Court vide order dated 23rd May, 2018 in the following terms;
"10. So, the discretionary relief as regards, granting of anticipatory bail is an exceptional power and getting such kind of relief the applicant has to prima facie bring on record that the charge levelled against him are mala fide and stamps from ulterior motive. It is required to be noted that nothing has of the sought has been brought on record and on considering the nature and gravity of the accusation, at this juncture there is prima facie case with which the applicants are charged is made out. It is also required to be noted that the allegation against the applicants regarding the use of obtained fund for their personal purpose and of misusing and misappropriation the public money and for the said purposes it appears that custodial interrogation is required to unearth the conspiracy. As far as the complaint is concerned there are clear allegation against this applicants and considering the nature and gravity of accusation and the role of the applicants this application deserves to be rejected and no discretionary relief like anticipatory can be granted in favour of the applicants. It is also required to be noted that the investigation is in crucial stage, so also this application deserves to be rejected.
11. Considering the parameters which govern the grant of the discretionary relief of anticipatory bail does not cover this application. It has also come on record regarding obtaining of prima facie documents supporting the complaint and when serous non-bailable offences have been registered against them, in that circumstances also, no relief as prayed for can be granted. If the relief Page 9 of 56 R/CR.MA/10200/2018 CAV JUDGMENT as prayed for is granted, it would seriously effect the investigation as the investigation is in crucial stage and it would to some extent intrude in the sphere of investigation of crime.
12. The learned Advocate for the applicants have placed reliance on the citation in the case of Bhadresh Bipinbhai Sheth vs. State of Gujarat, reported in 2015 SAR (CRIMINAL) 1179. But the facts appears to be totally different then that on hand and in the citation, there was addition of harge of serious nature and after nearly thirteen years and in that circumstances, it was held that the appellant is entitled to relief of anticipatory bail and hence, the said citation is not applicable to the present facts and circumstances on hand.
13. So, as discussed above, the court has considered the averments of the complaint, role of the applicants in the commission of crime which are serious in nature and on the basis of personal liberty, the applicants cannot be permitted to misuse the process of law by invoking the provisions of Section 438 of the Cr.P.C, and the papers and conduct of the applicants re not supporting the arguments on behalf of the applicants and as stated above, at this juncture, considering the police papers, affidavit filed by the I.O., it appears that the applicants are involved in the serious offence and hence, no discretionary relief at this juncture can be granted. Looking to the present case, at this stage, while exercising jurisdiction under section 438 of the Cr.P.C if the application is allowed, then faith of public in administration of justice is likely to be shaken. Looking to the several factors, pertaining to the applicants- accused, like larger interest of the public and society, it would lead to conclusion that the application is required to be rejected. The investigation is in crucial stage and so, at this juncture, the discretionary relief in the nature of anticipatory bail cannot be granted. Therefore, looking to the facts of the case, in my opinion, at this juncture, it is not desirable to exercise the discretion in favour of the applicants-accused. Hence, the present application is required to be rejected. Hence, I pass the follwing order in the interest of justice:-
ORDER Page 10 of 56 R/CR.MA/10200/2018 CAV JUDGMENT The application presented by the applicants under section 438 of Cr.P.C is hereby rejected."
11. Being dissatisfied with the order passed by the Addl. Sessions Judge, City Sessions Court at Ahmedabad declining to grant the anticipatory bail the applicants have come up with this application before this Court.
12. Submissions on behalf of the applicants 12.1 Mr. Mihir Thakore, the learned senior counsel appearing for the applicants vehemently submitted that the prosecution instituted against the applicants is politically motivated and tainted with malafides. He would submit that the fist information report has been lodged by none other than one Raees Azizkhan Pathan. It is the case of Mr. Thakore that the said Raees Khan has levelled false and frivolous allegations against the applicants on number of occasions at the behest of the political parties in the State of Gujarat. It is pointed out by Mr. Thakore that Raees Khan is a disgruntle ex-employee of the Citizens for Justice and Peace and was relieved of his duties and employment by the applicant No.2 herein on account of his dubious conduct towards the victims of the riots for which the Citizens for Justice and Peace has been working past couple of years.
12.2 Mr. Thakore submitted that it all started with issue of a notice by the officer in charge of the concerned police station under section 41A of the Code. According to Mr. Thakore, a notice under section 41A for appearance before the police officer is issued when the arrest of a person is not required Page 11 of 56 R/CR.MA/10200/2018 CAV JUDGMENT under the provisions of sub-section (1) of section 41 of the Code. It is submitted that the person to whom such notice is issued, if complies and continues to comply with the notice, then such person cannot be arrested in respect of the offence referred to in the notice unless for the reasons that may be recorded the police officer is of the opinion that such person should be arrested.
12.3 According to Mr. Thakore, since his clients have cooperated in the investigation, this Court may exercise discretion in favour of the applicants and grant the anticipatory bail.
12.4 Mr. Thakore submitted that the entire prosecution is based on documentary evidence which includes the statements of account, bills, vouchers etc. According to Mr. Thakore, all the relevant documents, necessary for the purpose of effective investigation, have been handed over to the Investigating Officer. The additional documents demanded by the Investigating Officer have also been furnished.
12.5 Mr. Thakore would submit that having regard to the nature of the allegations, no custodial interrogation is necessary in the case on hand and, therefore, the anticipatory bail may be granted to the applicants.
12.6 Mr. Thakore laid much emphasis on the fact that no cause of action could be said to have arose within the State of Gujarat so as to confer the territorial jurisdiction upon the police of the State of Gujarat to investigate into the first information report. It is pointed out that all the allegations in Page 12 of 56 R/CR.MA/10200/2018 CAV JUDGMENT the first information report are relating to the transactions which took place within the State of Maharashtra. Mr. Thakore would submit that, in fact, after registration of the first information report, the Gujarat Police should have transferred the same to the appropriate police station in the State of Maharashtra for the purpose of investigation. Mr. Thakore submitted that the allegations of misappropriation of the funds are absolutely baseless and without any corresponding materials in support of such allegations.
12.7 The other grounds raised in the memo of the application for grant of anticipatory bail are as under;
"(B) That the Ld. Judge ought to have appreciated that the offence under section 153(A) of Indian Penal Code is not attracted inasmuch as there is no element to create enmity or hatred between any two communities as has been alleged in the FIR. Thus, the impugned judgment and order of the Ld. Judge is required to be quashed and set aside.
(C ) That the Ld. Judge ought to have appreciated that the Applicants state that the entire FIR and the statement of the complainant do not show anything that creates enmity between any groups. Thus, the impugned judgment and order is required to be quashed and set aside.
(D) That the Ld. Judge ought to have appreciated that the Applicants are prominent public figures and have been instrumental through Citizens for Justice and Peace in conviction of high ranking officials of the ruling party i.e., BJP, for their role in the Gujarat Riots, 2002. Thus the institution of the current case against the Applicant on the basis of the false and frivolous complaint is completely mala fide and done with the sole purpose of maligning the Applicant and curtailing their liberty. Thus, the impugned judgment and order is required to be quashed and set aside.
Page 13 of 56 R/CR.MA/10200/2018 CAV JUDGMENT(E) That the Ld. Judge ought to have appreciated that the allegation of the complainant that the grant money was used for personal use is completely false and baseless. The accounts and spending of the project money was submitted to the Central Government and the same was approved by the HRD Ministry, as per the sanctioned budgets and utilization certificates issued by Chartered Account for the same were also provided. Thus, this is the fit case for exercising discretion in favour of the applicants.
(F) That the Ld. Judge ought to have appreciated that the Applicants state that the allegation regarding the applicants not being eligible for the project funds is also completely false and incorrect. The applicants had applied for the funds and after a proper evaluation by the committee appointed by the HRD ministry the grant was approved by the HRD Ministry. A Copy of the Trust Deed of Sabrang Trust has been annexed alongwith this application. Thus the Ld. Judge ought to have exercised discretion in favour of the applicants in the interest of justice.
(G) That the Ld. Judge ought to have appreciated that the Aims and Objectives of Sabrang Trust as spelt out in para 3 of its lndenture of Trust (a copy of which is annexed to this Application at Exhibit RR) are as follows:
"Promoting Communal Harmony in India, Promoting Friendship between all peoples and particularly between the peoples of India and its neighbours. combating all kinds of bigotry and intolerance. which create inter- religious strife and differences among people, promoting rationalism and tolerance... AND TO DO ALL THINGS WHICHEVER WHICH IN THE OPINION OF THE TRUSTEES BRING ABOUT THE AFORESAID OBJECTS..."
In view of all that has been stated above, the applicants aver that Sabrang Trust was certainly eligible for the grant it applied for. Thus, the impugned judgment and order of the Ld. Judge is required to be quashed and set aside in the interest of justice.
(H) The Applicants state that the allegations in the FlR are completely vague and on the face of it does not make out any offence.
Page 14 of 56 R/CR.MA/10200/2018 CAV JUDGMENT(l) None of the alleged offences have taken place in Gujarat. The office of the HRD Ministry where the proposal was submitted is in Delhi, the schools where the projects took place are all in Maharashtra and there is absolutely nothing that has taken place in Gujarat. The DCB, Police Station has no jurisdiction to investigate the alleged offence. The officer of the DCB, Police Station ought to have registered the FIR and transferred the same to either Delhi or Maharashtra for investigation. The investigation into offences which have not taken place in their jurisdiction shows that the investigating officer is acting with vendetta and out of political interest.
(J) This is not a case for custodial interrogation and the case can be investigated further without arresting the Applicants.
(K) Applicants have already appeared before the investigating officer on 6th April 2018 as per the directions of the Hon'ble Bombay High Court and provided the investigating authorities with all the necessary documents required by them. Applicants have tendered absolute cooperation to the investigating authorities.
(L) The Applicants state that they are willing to further cooperate with the investigation and also willing to share any further documents in the furtherance of the investigation which the investigating agency deems necessary and which is in the possession of the Applicants.
(M) The Hon'ble Supreme Court of India in the case of Arnesh Kumar Vs. State of Bihar AIR 2014 SC 2756 has clearly held that in an offence punishable with less than 7 years of imprisonment the police must give a notice to the Accused and give him an opportunity to explain and should not arrest the Accused automatically just because an FIR is registered.
(N) The Applicants have not been convicted in any other criminal case.
(O) The applicants are innocent and have been falsely implicated in this case.
Page 15 of 56 R/CR.MA/10200/2018 CAV JUDGMENT(P) The applicants are residents of Mumbai residing at the address mentioned in the cause title and have roots in the society and there is no reason to believe that they may abscond."
12.8 Mr. Thakore, while making good his case for anticipatory bail, submitted that it is not necessary for the accused praying for anticipatory bail to make out special circumstances. No special circumstances are necessary to be pointed out for the purpose of grant of anticipatory bail. To fortify this submission, Mr. Thakore has placed strong reliance on the decision of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors., AIR 2011 SC 312, more particularly, the following observations;
"SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia's case (supra) was correctly understood, appreciated and applied.
119. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can Page 16 of 56 R/CR.MA/10200/2018 CAV JUDGMENT be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing.
Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.
120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw `no justification' to require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and Others (1994) 4 SCC
260. Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should Page 17 of 56 R/CR.MA/10200/2018 CAV JUDGMENT necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
I. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the Page 18 of 56 R/CR.MA/10200/2018 CAV JUDGMENT accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.
126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report Page 19 of 56 R/CR.MA/10200/2018 CAV JUDGMENT suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. 128 In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.
129) In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.
130. Exercise of jurisdiction under section 438 of Cr.P.C. is extremely important judicial function of a judge and Page 20 of 56 R/CR.MA/10200/2018 CAV JUDGMENT must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications.
131. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-a-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests.
132. The performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them. In case, they have not been able to maintain balance between personal liberty and societal interests, the lacunae must be pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the judicial officers and all concerned must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case.
133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it".
134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would Page 21 of 56 R/CR.MA/10200/2018 CAV JUDGMENT not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Another (supra).
136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, a two-Judge Bench of this Court observed "the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia's case (supra).
137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing section 438 Cr.P.C.
139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that Page 22 of 56 R/CR.MA/10200/2018 CAV JUDGMENT `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
"......... In Halsbury's Laws of England (4th Edn.) Vol. 26:
Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:
"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947 KB 842 :
(1947) 2 All ER
193.); or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision;
or when the decision is given in ignorance of the terms of a statute or rule having statutory force."
140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.
141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:
"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."Page 23 of 56 R/CR.MA/10200/2018 CAV JUDGMENT
142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:
"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."
143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:
"...It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act."
144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:
"With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."
145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Page 24 of 56 R/CR.MA/10200/2018 CAV JUDGMENT Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:-
"We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."
148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the Page 25 of 56 R/CR.MA/10200/2018 CAV JUDGMENT judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-
"Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should.
The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.
Page 26 of 56 R/CR.MA/10200/2018 CAV JUDGMENT151. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia's case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under section 438 Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit. "
12.9 Mr. Thakore submitted that the principles laid down by the Supreme Court in the case of Siddharam Satlingappa Mhetre (supra) is on the basis of the decision of the Supreme Court in the case of Gurbaksh Singh vs. State of Punjab, reported in AIR 1980 SCC 1632, wherein it was held as follows;
"21.
xx xx xx To say that the applicant must make out a "special case"
for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case".
Xx xx xx "22. By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These Sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in Page 27 of 56 R/CR.MA/10200/2018 CAV JUDGMENT exceptional cases only, because it is of an extra-ordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations."
12.10 In such circumstances, referred to above, Mr. Thakore prays that there being merit in this application, the same may be allowed and the applicants may be granted the anticipatory bail, as prayed for in this application.
13. Submissions on behalf of the State.
13.1 On the other hand Mr. Mitesh Amin, the learned Public Prosecutor has vehemently opposed this application seeking anticipatory bail. Mr. Amin submitted that no case worth the name could be said to have been made out by the applicants for grant of discretionary relief of anticipatory bail. Mr. Amin would submit that the allegations levelled in the first information report are quite serious and requires thorough investigation. Mr. Amin would submit that from day one, the applicants have not cooperated in the investigation. It is submitted that by merely handing over a bunch of documents, it cannot be said that the applicants are cooperating in the investigation. There are many aspects of the matter which needs to be thoroughly investigated by the Investigating Officer, and for that purpose, the custodial interrogation of the applicants is necessary. Mr. Amin would submit that just because initially a notice under section 41A of the Code came to be issued, by itself, does not mean that later, the Investigating Officer cannot effect arrest of the applicants. Mr. Page 28 of 56 R/CR.MA/10200/2018 CAV JUDGMENT Amin further submitted that the custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is armed with a favourable order under section 438 of the Code. Mr. Amin submitted that the investigation carried out so far has revealed that one transaction took place in the State of Gujarat and it is necessary to carry out thorough investigation with regard to the said transaction. Mr. Amin laid much emphasis on the fact that the case on hand is one of misappropriation of funds sanctioned and allotted by the Union of India for the benefit of the students hailing from a poor strata of the society. According to Mr. Amin, the funds were not only obtained by committing fraud but after obtaining the funds, they have been misused by the applicants, i.e,. the funds have been utilized for their personal use.
13.2 Mr. Amin submitted that the submission canvassed on behalf of the applicants as regards the territorial jurisdiction of the police of the State of Gujarat is without any merit. Mr. Amin would submit that whether an officer in charge of a police station has the requisite jurisdiction to make investigation or not would depend upon a large number of factors including those contained in sections 177, 178 and 181 of the Code. Mr. Amin submitted that in a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, the investigation can be conducted by the officer in charge of the police station concerned which has jurisdiction to investigate in relation thereto.
13.3 Mr. Amin submitted that this application deserves to be rejected only on the ground of antecedents of the applicants. According to Mr. Amin many prosecutions of the Page 29 of 56 R/CR.MA/10200/2018 CAV JUDGMENT like nature have been instituted against the applicants.
13.4 Mr. Amin also placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the State of Gujarat, duly affirmed by the Addl. Deputy Commissioner of Police, Crime Branch, Ahmedabad. I may quote the relevant averments, on which reliance has been placed;
"3. From the plain reading of the above referred FIR, it appears that against the present applicants as well as against the officers of Ministry of Human Resource Development is to the effect that the present applicants being the Trustees of Sabrang Trust under the scheme of Sarva Siksha Abhiyan got grant of 1.40 crores, which during the investigation has revealed that the same was obtained fraudulently and the amount so received is misappropriated .
4. The proposal/application of applicants was submitted to National Council of Educational Research and Training for its scrutiny who after examining the proposal made remarks in its scrutiny report dated 29/04/2010. As per remarks proposal submitted was not found viable. NCERT suggested for re-submission of the proposal after considering concerned remarks and more particularly relevance of the project in context with Right to Education Act, 2009. After receiving scrutiny report, MHRD, through its letter dated 05/05/2010, intimated Sabrang Trust about scrutiny report as well as necessity of resubmission of proposal as suggested in the scrutiny report. Pursuant to it, Sabrang trust through petitioner No. 2, resubmitted their project proposal on and around 18/05/2010. Same was again scrutinized through its scrutiny report dated 09/07/2010 and again NCERT expressed its concern about viability of project as well as its efficacy and it not being in consonance with RTE Act, 2009 and hence proposal was "Not Recommended".
5. During the intervening period and more particularly when the resubmitted proposal was under scrutiny by Page 30 of 56 R/CR.MA/10200/2018 CAV JUDGMENT NCERT, MHRD constituted Field Investigation Team comprising of Ms. Seema Rajput, consultant ALS unit, TSGED-CIL, New Delhi and Smt. M. S. Nimbalkar, In charge Deputy Director Maharashtra Prathmik Sikshan Parishad for evaluation of petitioner's project.
6. Through note dated 22/07/2010, MHRD recorded non recommendation of resubmitted proposal by NCERT but at the same time MHRD intimated Sabrang trust to place their proposal in the meeting of Grant In Aid Committee to be held on 09/08/2010. Before the meeting, Field Investigation Team submitted their report dated 25/07/2010 was discussed. Which said "the team is of the opinion that the proposal of VA may be considered for approval of grant by MHRD", and relying on it GIAC said that they are not in agreement with the non- recommendation of NCERT.
7. On bare perusal of FIT report dated 25/07/2010, it reveals that though team of 2 persons was constituted but report is signed by only 1 member. Signatory to the report is interrogated and her interrogation raises more than reasonable doubt and suspicion about the authenticity of the report as well as addition of some of the context of the report. It is also pertinent to examine this field investigation report in the content of same being totally oblivious and ignorant of NCERT's second time endorsement of "Not Recommended" as well as context of scrutiny report. It is also pertinent to note here that observation of Grant in Aid Committee (GIAC) which found field investigation team's report more acceptable than refusal by NCERT. Though report of field investigation team does not have any reference nor even whisper about NCERT's refusal.
8. Investigator has also interrogated one professor of NCERT who as a representative of NCERT was present in the meeting dated 09/08/2010 of GIAC. Said witness had made her point about NCERT's non-recommendation which was considered negatived by GIAC by saying GIAC can overrule such non recommendation.
9. With a notification dated 05/04/2010, NCERT as the academic authority is statutorily authorized to lay down the curriculum and evaluation procedure for elementary education and to develop a framework of national Page 31 of 56 R/CR.MA/10200/2018 CAV JUDGMENT curriculum under clause (a) of sub section 6 of section 7 of the Right of Children to Free and Compulsory Education Act, 2009. Considering this NCERT is designated academic authority, Hence report of FIT as well as GIAC discarding and negativing NCERT's report is illegal and therefore giving grant by itself is illegal, and thereby act of disbursing grant in aid money by MHRD together with an act of receiving such money by Sabrang Trust is an act of criminal breach of trust and as grant in aid is illegally disbursed by officers of Ministry of Human Resource Development, i.e. public servant of Union of India, offence falls under section 409 of IPC.
10. Initially informant applied to MHRD complaining about educational programme of Sabrang Trust to which MHRD constituted committee of 3 persons comprising of (1) Shri Abhijit Bhattacharya, Advocate Supreme court, (2) Shri Gaya Prasad, Director, Department of School Education and Literacy (MHRD) and, (3) Shri S.A.Bari, Vice Chancellor, Central University of Gujarat, who after examining the education programme and other material gave following findings :
(1) That, from the very beginning the applicant Sabrang Trust/KHOJ is ineligible to make any application and, hence, all money disbursed by the Ministry of Human Resource Development has been wrongly done for which the concerned officials thereof cannot escape accountability, responsibility and cupability for this act and;
(2) Applicant Director, Sabrang Trust/KHOJ is capable of hatred-filled, disharmony-spreading, ill-will generating, enmity creating explosive writings for which sections 153-A and 153-B can/may be invoked to proceed against the Director, Sabrang Trust/Khoj. With these words, this committee sums up its inquiry report to be considered by the competent authority of the Ministry of Human Resource Development, Government of India, as deemed fit.
11. Investigator had initially questioned both the petitioners on furnishing accounts. Petitioners' through their chartered accountant had responded to the investigator's letter dated 18/05/2018 but the same is not found satisfactory. Considering their investigation Page 32 of 56 R/CR.MA/10200/2018 CAV JUDGMENT material undersigned is of the view that necessary cooperation is not given by petitioners and it is found that petitioners are trying to evade response on certain crucial points.
12. Petitioners have raised issue of territorial jurisdiction but considering the provisions of the Code of Criminal Procedures, more particularly section 177, 178 in context with section 179, and 180 as well as following judgement of Hon'ble Supreme Court reported in (1999) 8 SCC Page 7-8 in the case of Satvinder Kaur Vs State (Govt. Of NCT of Delhi). I say that there is no bar of territorial jurisdiction. It is submitted that on examining ledger account of Sabrang Trust (account HRD) it is found that some amount is withdrawn from Ahmedabad. It is also found that from the account of Sabrang Trust (HRD account) a large sum of money is transfered in Ahmedabad service branch, Ahmedabad through demand draft in favour of Sabrang Trust (HRD account) which was deposited in a newly opened trust's account in a different bank and had subsequently transferred some amount of it to another trust run by the petitioners, viz., Citizen for Justice and Peace operating in Ahmedabad as well as Mumbai.
13. I say that notice under section 41A of CrPC was served upon petitioners' but subsequent there to considering the material of investigation, and as stated by me in my aff1davit submitted in anticipatory bail proceedings before learned Sessions Judge, I submit there is sufficient material to arrest petitioners and also undertake custodial interrogation of petitioners.
Petitioners have criminal antecedents I. CR No. 1-2014 registered before DCB Police station u/s 406, 420, 467, 468, 120-B and u/s 72 of Information Technology Act,.
Ii M case no. 2/2011 registered before Navrangpura Police station u/s 196, 194, 195, 199 and 200 of IPC,.
Iii CR No. 1162/2014 registered before Ghatlodia Police station u/s 153-A, 295-A, 114 of IPC 85 u/s 65, 66-
c, 67 of Information Technology Act,.
Page 33 of 56 R/CR.MA/10200/2018 CAV JUDGMENTiv. CR No.I-3-2006 registered before Lunawada Police station u/s 192, 193, 201 120-B, 295A, 297, and 115 of the IPC, v. CBI / Economic Offence Wing/Mumbai C.C.No. 1060/PW/2016."
13.5 Thus, the following is discernible from the averments made in the affidavit-in-reply.
(I) The applicants are not cooperating in the investigation and have directly or indirectly failed to answer the questions put to them on crucial points.
(ii) The applicants, somehow, managed to get the grant sanctioned despite the fact that a negative report came on record filed by the MHRD. Even, otherwise, the Trust was ineligible to prefer any application for grant, and the ultimate sanction and disbursement of the amount by the Ministry of Human Resource Development indicates collusion and connivance of the applicants with the officials of the MHRD.
(iii) The NCERT expressed its grave concern as regards the viability of the project as well as its efficacy and the same being not inconsonance with the Right to Education Act, 2009, and in such circumstances, the proposal was not recommended.
13.6 Mr. Amin, in support of his submissions, has placed reliance on the following decisions;
"(i) Naresh Kavarchand Khatri vs. State of Gujarat & Anr., (2008) 8 SCC 300;Page 34 of 56 R/CR.MA/10200/2018 CAV JUDGMENT
(ii) State Rep. By the C.B.I vs. Anil Sharma, (1997) 7 SCC 197;
(iii) Rasiklal Dalpatram Thakkar vs. State of Gujarat & Ors., (2010) 1 SCC 1;
(iv) Satvinder Kaur vs. State Govt of NCT of Delhi, (1999) 8 SCC 728;
ANALYSIS
14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicants are entitled to the discretionary relief of grant of anticipatory bail.
15. Let me first consider the submission of Mr. Thakore as regards Section 41A of the Code. The argument of Mr. Thakore in this regard proceeds on the footing that once the Investigating Officer decides to issue a notice under section 41A of the Code, the same, by itself, is suggestive of the fact that the arrest of the accused is not necessary, as in the case on hand, the police officer concerned issued notice to both the applicants under section 41A of the Code and the applicants appeared also before the Investigating Officer with necessary documents. According to Mr. Thakore, now there is no question of effecting any arrest of the applicants. I am not impressed by such submission of Mr. Thaikore.
16. Section 41A makes it very clear that if a notice is issued to any person, then it shall be the duty of that person to comply with the terms of the notice. It further provides that if Page 35 of 56 R/CR.MA/10200/2018 CAV JUDGMENT such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may arrest him for the offence mentioned in the notice subject to any orders that may have been passed by a Competent Court in that behalf. It is extremely difficult to take the view that once the notice is issued under section 41A, thereafter, it is not permissible for the police officer to effect arrest. In the case on hand, the applicants although might have once appeared before the police officer pursuant to the notice which they received , but the complaint of the Investigating Agency, as on date, is that they have not cooperated in the investigation and have exhibited reluctance to reply to certain questions put to them by the police officer. It appears that the applicants have just handed over the papers in the form of the documentary evidence to indicate that the grant was sanctioned in accordance with law and the amount of the grant was used only for the purpose for which the grant was sanctioned, i.e., the project which the trust undertook at the relevant point of time. The State is right in submitting that this, by itself, does not amount to cooperating in the investigation. By merely asking the Chartered Accountant of the trust to clarify certain queries raised by the Investigating Officer is not sufficient. The applicants are expected to explain everything in details and by giving satisfactory answers to the various questions that the Investigating Officer has to put to them. If the Investigating Officer comes to this Court and says that the applicants are not cooperating and are evading to give suitable answers to the queries put to them, then, prima facie, it could be said that the applicants have failed to comply with the terms of the notice and, therefore, the police officer would be justified in effecting their arrest. So that the police officer can also pray before the Page 36 of 56 R/CR.MA/10200/2018 CAV JUDGMENT Court for custodial interrogation by seeking police remand of the applicants. In such circumstances, the first submission of Mr. Thakore as regards section 41A is rejected.
17. In the case of Hema Mishra vs. State of Utter Pradesh reported in (2014) 4 Supreme Court Cases 453, the Supreme Court held that in view of section 41-A Cr.P.C, it is compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But, all the same, the unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41-A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest 54 and the right to personal liberty guaranteed under Article 21 of the Constitution of India.
18. I am also not impressed by the submission of Mr. Thakore as regards the malafides on the part of the first informant, who at one point of time, was working with the Trust. The applicants have tried to label the first informant as a disgruntled person, but, in fact, it is this so called disgruntled person who knows the ins and outs of the applicants so far as the administration and affairs of the trust is concerned. He would be in a better position to inform about the administration of the Trust to the police. It is a different thing that, as on date, the first informant is no longer with the trust, may be on account of some differences between him and the applicants, but I find it difficult to take the view that what has been alleged in the first information report is something false Page 37 of 56 R/CR.MA/10200/2018 CAV JUDGMENT and tainted with malafides. There is prima facie materials as reflected from the papers of the investigation to indicate that the applicants obtained the grant by practicing fraud. The matter does not rest over here. There are allegations that the amount received by the trust by way of grant was not used in the project but the same came to be misappropriated by the applicants herein for their personal use. This seems to be the crux of the allegations against the applicants. Therefore, in my view, the applicants are not entitled to seek anticipatory bail only by levelling allegations of malafides and political bias.
19. I am also not impressed by the submission that as the applicants are journalists and social activists and are recipient of prestigious awards, they should be granted anticipatory bail as their arrest may tarnish their reputation in the society.
20. The grant of anticipatory bail is not a normal feature even where the offence alleged is non-bailable and there is apprehension in mind that the applicant shall be arrested. When wide power is given to the Court, it is to be exercised with restraint. As has been held in the Sibbia's case (supra):
"...Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
21. In paragraph 8, it has been observed by the Supreme Court:
"No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard Page 38 of 56 R/CR.MA/10200/2018 CAV JUDGMENT to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day- to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a Court of justice. The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973. "
22. The reputation of the applicants in the society as well as being renowned journalists and social activists has nothing to do with the criminal charge of defalcation and misappropriation of the amount of grant. The grant of anticipatory bail being extraordinary in character, such a prayer should be favourably considered in exceptional cases where it appears that the applicants are falsely implicated or a frivolous case has been launched with a motive to harass them or tarnish their image or reputation and the cases of the like nature. Thus, when a prima facie case is made out from the materials on record relating to the commission of non- bailable offences and there is no material in the record to Page 39 of 56 R/CR.MA/10200/2018 CAV JUDGMENT show or suggest that a false case has been foisted or that the authorities concerned and the Investigating Agencies are vindictive or acting with malafides, the prayer of the applicants for anticipatory bail cannot and should not be favourably considered merely on the ground that, if arrested, their reputation will be at stake.
23. This Court had an occasion to consider the plea of the applicants herein for grant of anticipatory bail in connection with one another offence registered with the DCB Crime Police Station, Ahmedabad vide I-C.R. No.1 of 2014 for the offences punishable under sections 420, 406, 468 and 120B of the IPC and section 72(A) of the Information & Technology Act. While rejecting such application, seeking anticipatory bail, this Court was constrained, in the facts and circumstances of the said case and having regard to the materials on record, to observe as under;
"As observed earlier, the facts of this case are quite shocking and disturbing. How can one seek materialistic pleasure and happiness at the expense of the poor and needy persons. How can one even use five paise which is meant for the poor and the needy. The facts of this case reflect the sorry state of affairs of the NGOs. People from all corners of the world are ready to help them. There are people who may not be able to directly help and, therefore, they use the NGOs to help the poor and the needy. The donations are made with lot of trust and hope that ultimately the money would reach to the poor and the needy. However, here is a case where, in the name of the poor, needy and unfortunate riot affected victims, lacs of rupees was received and embezzled.
A person who considers the happiness and the pain of others as those of his own, is, in my opinion, the real social worker.Page 40 of 56 R/CR.MA/10200/2018 CAV JUDGMENT
Whilst giving freedom to the civil society to function with flexibility is positive, too much freedom can lead to abuses by certain groups or individuals calling themselves an 'NGO', thus giving civil society a bad name. Situations like these have a negative impact on the many honest NGOs and create a situation of low trust in the NGOs. This, in turn, leads to a situation where funding is not easily obtained and where the public is less ready to contribute to the sector. Ultimately, it is only the poor and the needy who are the sufferers. It is, therefore, very important to have strict laws regulating accountability and monitoring of the NGOs so as to maintain a high trust level and good functioning.
Proper registration, genuine board composition, compliance with procedures, and well laid-out policies relating to activities and resource mobilisation are the basic attributes of the well-governed organisations. Broadening and deepening the regulatory process, as well as enhancing the capacity of the department to carry it out, would be the best government response to this controversy.
A lot was argued regarding the reputation of the two applicants. My attention has been drawn to the various awards received by the two Trusts. It was also sought to be argued that the trustees are well-renowned persons of great repute. Well, by only looking towards the awards and the medals the hard reality should not be ignored. So far as the well-renowned persons being the trustees are concerned, I may only say that the two Trusts appear to be a one-woman and one-man show. The other trustees, I doubt, whether have any idea as regards the affairs of the Trusts. They may have lended their names unmindful that they may also lend up some day in difficulty."
24. Thus, the prominence or the reputation of the applicants in the Society strenuously canvassed in this case should not be allowed to overshadow the considerations of prima facie case and the likelihood of the investigation being adversely affected by pre-arrest bail.
25. In the aforesaid context, I may state that there are as many as five prosecutions instituted against the applicants for Page 41 of 56 R/CR.MA/10200/2018 CAV JUDGMENT various offences under the IPC like cheating, forgery, criminal breach of trust, perjury etc. I was inclined to reject this application only on the ground of the criminal antecedents of the applicants as pointed out by the State in its affidavit, duly affirmed by the Addl. Deputy Commissioner of Police, Crime Branch, Ahmedabad.
26. I am also not impressed by the submission of Mr. Thakore as regards the territorial jurisdiction of the police of the State of Gujarat to investigate the first information report. It has been vociferously submitted on behalf of the applicants that no cause of action could be said to have been arose within the State of Gujarat so as to confer the territorial jurisdiction to the police of the State of Gujarat to carry out the investigation. Mr. Thakore pointed out that except one entry of credit in the Bank Account within the State of Gujarat, all other transactions took place within the State of Maharashtra. According to Mr. Thakore, in fact, the entire project was for the students of the State of Maharashtra. It was in the mind of the applicants to give benefit of such project even to the students in the State of Gujarat, but the same never materialized at any point of time. In such circumstances, the investigation by the police of the State of Gujarat, itself, is illegal and without jurisdiction. In this regard, I may refer to the decisions of the Supreme Court, on which, strong reliance has been place by Mr. Mitesh Amin, the learned Public Prosecutor.
27. In Naresh Kavarchand Khatri (supra), the Supreme Court has observed as under;
"8. Whether an officer in charge of a police station has Page 42 of 56 R/CR.MA/10200/2018 CAV JUDGMENT the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the concerned officer in-charge of the police station which has jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure Code would also be relevant therefor. We need not dilate more on analyses of the aforementioned provisions as the said question has been gone into by this Court on more than one occasion.
9. In Satvinder Kaur vs. State (Govt. of NCT of Delhi) :
1999 (8) SCC 728 this Court noticing various provisions of the Code of Criminal Procedure opined:
"12. A reading of the aforesaid sections would make it clear that Section 177 provides for "ordinary" place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas.
Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime."
It was furthermore held :
"15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Page 43 of 56 R/CR.MA/10200/2018 CAV JUDGMENT Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction."
10. Yet again in Asit Bhattacharjee vs. Hanuman Prasad Ojha : (2007) 5 SCC 786 this Court clearly held :-
"32. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of the State of West Bengal's having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter.
33. Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever."
28. In Anil Sharma (supra), the Supreme Court has observed as under;
Page 44 of 56 R/CR.MA/10200/2018 CAV JUDGMENT"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disintering many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the oustodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disintering offences would not conduct themselves as offenders."
29. In Rasiklal Dalpatram (supra), the Supreme Court observed as under;
"19. Section 156 Cr.P.C. which is the focus of consideration in this case, reads as under :-
"156. Police officer's power to investigate cognizable cases. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned."
From the aforesaid provisions it is quite clear that a police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code. Sub-
Page 45 of 56 R/CR.MA/10200/2018 CAV JUDGMENTsection (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation under Sub-section (1) of section 202 Cr.P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him.
As far as the reference made to Sub-section (4) of Section 181 is concerned, the same appears to be misconceived having regard to the contents thereof which read as follows :-
"181. Place of trial in case of certain offences.
(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) Any offence of criminal misappropriation or of criminal breach of trust may he inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person."
Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr.P.C.
In the instant case, the stage contemplated under Section 181(4) Cr.P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the Page 46 of 56 R/CR.MA/10200/2018 CAV JUDGMENT learned Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai.
In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter. Having regard to the law in existence today, we are unable to accept Mr. Syed's submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of Page 47 of 56 R/CR.MA/10200/2018 CAV JUDGMENT investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai.
Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so."
30. In Satvinder Kaur (supra), the Supreme Court observed as under;
"10. It is true that territorial jurisdiction also is prescribed under sub-sec- tion (1) to the extent that the Officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub-Page 48 of 56 R/CR.MA/10200/2018 CAV JUDGMENT
section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the Officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
11. Chapter XIII of the Code provides for "Jurisdiction of the Criminal Courts in inquiries and trials". It is to be stated that under the said Chapter there are various provisions which empower the Court for inquiry or trial of a criminal case and that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired or tried. This would be clear by referring to Sections 177 to 188. For our purpose, it would be suffice to refer only to Sections 177 and 178 which are as under :-
"177, Ordinary place of inquiry and trial - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178. Place of inquiry or trial. - (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local Page 49 of 56 R/CR.MA/10200/2018 CAV JUDGMENT areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."
12. A reading of the aforesaid sections would make it clear that Section 177 provides for `ordinary' place of inquiry or trial. Section 178 inter alia provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in other and where it consisted of several acts done in different local areas, it could be inquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that S.H.O. does not have territorial jurisdiction to investigate the crime.
13. The Court in the State of West Bengal v. S.N. Basak, [1963] SCR 52, dealt with a similar contention wherein the High Court had held that the statutory powers of investigation given to the police under Chapter XIV were not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and hence the investigation was without jurisdiction. Reversing the said finding, it was held thus :-
"The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156 with investigation into such offences and under these sections the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561A of Criminal Procedure Code. As to the powers of the Judiciary in regard to statutory right of the police to investigate, the Privy Council in King Emperor v. Khwaja Nazir Ahmad, (1944) L.R. 71 I .A. 203, 212 observed as follows :-
"The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved Page 50 of 56 R/CR.MA/10200/2018 CAV JUDGMENT under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that Section 561A has given increased powers to the Court which it did not posses before that Section was enacted. But this is not so, the section gives no new powers, it only provides that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act."
With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the Officer-in-charge of the police station."
14. Further, the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the F.I.R., prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. (Re: State of West Bengal v. Swapna Kumar, [1982] 1 SCC 561.) It is also settled by a long course of decision of this Court that for the purpose of exercising Us power under Section 482, Cr. P,C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations. (Ref. Pratibha Rani v. Suraj Kumar and another, [1985] 2 SCC 370 at 395).
15. Hence, in the present case, the High Court committed grave error in accepting the contention of the respondent that investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial Page 51 of 56 R/CR.MA/10200/2018 CAV JUDGMENT jurisdiction of police station at Delhi. The appreciation of the evidence is the function of the Courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that police station officer of particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of respondent no. 2 on the ground of want of territorial jurisdiction. "
31. Mr. Thakore also placed strong reliance on the decision of the Supreme Court in the case of Arnesh Kumar vs. State of Bihar & Anr., AIR 2014 SC 2756 to contend that the plain reading of the provision of section 41 makes it clear that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Mr. Thakore would submit that the police officer before arrest, in such cases, has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear, or tampering with such evidence in any manner, or Page 52 of 56 R/CR.MA/10200/2018 CAV JUDGMENT to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer, or unless such accused person is arrested, his presence in the Court whenever required cannot be ensured.
32. I take notice of the fact that the first information report against the applicants is also for the offence punishable under section 409 of the IPC. Section 409 of the IPC is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. In such circumstances, the principles enunciated in Arnesh Kumar (supra) may not strictly apply to the facts of the present case.
33. Despite all odds against the applicants, I am inclined to give one last chance to the applicants to join the investigation and cooperate with the Investigating Officer. I deem it necessary to refer to certain observations of the Apex Court in the case of Jogendra Kumar v. State of U.P. and Ors., AIR 1994 SC 1349 : [1994 Cri.L.J. 1981].
34. In the case of Jogendra Kumar (supra) it has been held as under :--
"..... No arrest can be made because it is lawful for the Police Officer to do so. The existence of power is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest an detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest Page 53 of 56 R/CR.MA/10200/2018 CAV JUDGMENT can be made in a routine manner on a mere allegation of commission of an offence made against a person it would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter the recommendation of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do."
35. From the aforesaid enunciation of law, there remains no iota of doubt that the individual liberty has to be respected and simultaneously the investigation has to take its course. As has been stated earlier a balanced view has to be adopted. A reconciliation has to be done between the social restraint and individual liberty.
36. By merely forwarding the documents through a messenger or the chartered accountant is not going to be sufficient in the facts and circumstances of the case. The applicants shall have to appear before the Investigating Officer as and when summoned and they will have to make good all the queries that may be put to them by the Investigating Officer. Any lapse on the part of the applicants in this regard shall be viewed very strictly and may entail the consequences of the anticipatory bail being cancelled and it will be open for Page 54 of 56 R/CR.MA/10200/2018 CAV JUDGMENT the Investigating Officer, thereafter, to effect arrest in accordance with law. At the cost of repetition, I state that I have thought fit to exercise my discretion in favour of the applicants having regard to the fact that what has been alleged in the first information report is something which transpired about five to seven years back and an exhaustive investigation will have to be undertaken having regard to the allegations on record. Let me make one more clarification. At any time, in the course of the investigation, if the Investigating Officer finds that the custodial interrogation of the applicants is necessary on certain relevant aspects, then it shall be open for the Investigating Officer to apply for police remand before the appropriate court in accordance with law.
37. In the result, this application is allowed. The applicants, in the event of their arrest in connection with the first information report registered as CR No.I-20/2018 with the DCB Police Station, Ahmedabad City, shall be released on bail on each furnishing a personal bond of Rs.1,00,000/- (Rupees One Lakh only) with one surety each of the like amount.
38. The applicants are directed to appear before the Investigating Officer on 15th February, 2019 for the purpose of interrogation and shall, thereafter, regularly remain present as and when called by the Investigating Officer. Any lapse on the part of the applicants in this regard will be viewed very strictly and may entail the consequences of the anticipatory bail granted by this Court being cancelled.
39. In the aforesaid context, I may quote the observations of Page 55 of 56 R/CR.MA/10200/2018 CAV JUDGMENT the Supreme Court in the case of State of Punjab vs. Raninder Singh & Anr, reported in 2008 CRI.L.J 801.
"5. It may be mentioned here that Section 438 (2) (I) of the Code of Criminal Procedure is very clear that while granting anticipatory bail the Court can lay down a condition that the accused shall make himself available for interrogation by a police officer as and when required. The purpose of such a provision is that anticipatory bail cannot be permitted to be abused. It is therefore, implicit that whenever the Court imposes such a condition in its order, and the accused called for interrogation or for certain investigation does not appear before the investigating officer then it will be open for the State to move the High Court for cancellation of bail."
40. The grant of anticipatory bail to the applicants shall not preclude the Investigating Officer to pray for police remand if during the course of the investigation it is found that custodial interrogation is necessary on any particular aspect of the matter.
41. It is needless to clarify that at any point of time if the Investigating Officer finds that the applicants are not cooperating with the investigation or are evading answers to specific questions, then it shall be open for the State to move the concerned Court taking up cancellation of bail matters for cancellation of the anticipatory bail.
42. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J. B. PARDIWALA, J) Vahid Page 56 of 56