Delhi High Court
Ashwani Lochan Aggarwal vs State on 8 December, 2006
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. Although this petition is styled as a revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") and is directed against the order dated 14.11.2006 passed by the learned ACMM (Delhi), the learned Counsel for the petitioner, on the objection having been raised by the learned Counsel for the State as to its maintainability, requested that it be treated as an application for bail under Section 167(2) of the Code. The petition has, therefore, been argued as such and not as a revision petition.
2. The order dated 14.11.2006 came to be passed on an application under Section 167(2) of the Code filed on behalf of the petitioner seeking bail on default of the investigating agency completing the investigation within 60 days. There is a controversy as to whether the 60 days period as provided in Clause (a)(ii) of the proviso to Section 167(2) of the Code would be applicable to the present case. The petitioner would have the Court believe that the period applicable is 60 days. On the other hand, the State has taken the stand that the period permissible for completing the investigation while keeping the petitioner in custody is 90 days as stipulated in Clause (a)(i) of the proviso to Section 167(2) of the Code. If it is 60 days then, the petitioner would be entitled to bail as the period of 60 days has elapsed and the investigation has not been completed. But, if it is 90 days then, the petitioner would not be entitled to bail as the period of 90 days has not elapsed.
3. This controversy has arisen because initially when the First Information Report (FIR No. 278/06) was registered at Police Station Civil Lines on 7.9.2006, it was registered under Sections 120B/468/471/420 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). There is no dispute that if these were the only provisions of the IPC with regard to which the investigation was in progress then, Clause (a)(ii) of the proviso to Section 167(2) of the Code would be applicable and the limitation for completing investigation would be 60 days. But, the matter does not stop here.
4. After the FIR was registered for the said offences, the accused were arrested on different dates. The petitioner was arrested on 10.9.2006. An application for 14 days remand to police custody was moved on behalf of the Crime Branch. In this application only Sections 120B/468/471/420 IPC were mentioned. The prosecution case was spelt out in the application. It was mentioned that the special team of the Crime Branch had busted a gang of criminals. Their modus operandi was that they procured fake mark-sheets of various technical and non-technical courses such as B. Tech., M. Tech. and MBA from universities at Chhatisgarh. These universities had been abolished by the Supreme Court as they were found to be illegal. However, to safeguard the future of students who had been duped into taking up courses in these universities, the Supreme Court directed that students enrolled with these universities could migrate to other universities and the mark-sheets hitherto issued by these illegal universities would entitle the students to migrate to legitimate universities. It is further alleged that some of these illegal universities conspired with educational consultants like Xel Informatics and started issuing mark-sheets to students who were not even enrolled in these illegal and de-recognized universities. It is alleged that recognized universities such as Vinayaka in Salem, Tamil Nadu and Vidhyapeeth in Udaipur, Rajasthan, in conspiracy, started accepting these mark-sheets and conducted examinations all over India. The allegations go further to suggest that thousands of technical and non-technical degrees have been distributed in this way after charging handsome sums from the students who were directly given final year mark-sheets. The accused, including the petitioner (Ashwani Lochan Aggarwal), are alleged to be active members of the gang which adopted this modus operandi. The petitioner is alleged to have played his part in also securing fake admissions in the University of Science and Technology, Raipur and Vinayaka in Salem. On the basis of the allegations contained in the said remand application, the learned ACMM granted 10 days police remand of the petitioner.
5. On 21.9.2006 an application for judicial remand for 14 days was moved. It was allowed. Then followed the remand applications of 5.10.2006 and 19.10.2006. Which were also for 14 days each. They were also allowed by the learned ACMM. All these applications had reference to the offences under Sections 120B/468/471/420 IPC. But, in the next remand application of 2.11.2006, which, if allowed, would take the custody period beyond 60 days, the commission of a fresh offence under Section 467 IPC (forgery of valuable security, will, etc.) was alleged against the petitioner. Now, there is no dispute that in respect of the offence under Section 467 IPC the period prescribed under Section 167(2) of the Code is 90 days. This is because, the punishment prescribed for the offence under Section 467 IPC is imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, as also the liability to fine. As the offence is capable of being punished with life imprisonment, Clause (a)(i) of the proviso to Section 167(2) of the Code would apply. And, consequently the relevant period would be 90 days.
6. Mr A.K. Panda, the learned senior counsel appearing on behalf of the petitioner, made a two-fold submission. Firstly, he submitted, the alleged offence under Section 467 IPC was introduced when the end of 60 days period was fast approaching and the completion of the investigation was nowhere in sight. It was introduced only to scuttle the petitioner's right to bail on default which would accrue to him on 10.11.2006, on the completion of 60 days of remand. By introducing Section 467 IPC on the same set of facts, the investigating agency has, according to Mr Panda, enlarged the period from 60 days to 90 days in a mala fide manner which is impermissible in law. Mr Panda's second submission was that the allegations even if taken at face value do not disclose any offence under Section 467 IPC. He submitted that the allegation against the petitioner as contained in the report dated 14.11.2006 on the bail application before the learned ACMM requires to be seen. The allegation is as under:
The accused was working with Xel Informatics, an Educational Consultant as well as Rajiv Gupta, Chancellor of UTS. The accused is actively involved in the whole racket. He had established links with various study centres and Directors of VMRF University and knew that fake mark sheets of students will be used for their final examination. The recovery of mark sheets of number of students and other details about the whole operation is clear indication of involvement of the accused in the case. The accused also disclosed that he was aware about the whole operation.
xxxx xxxx xxxx xxxx During the course of investigation it was found that Section 467 IPC is also made out against the accused persons and accordingly the section was added on 26.10.06. In the last JC Remand of the accused dated 2.11.06 the Section 467 IPC is also duly mentioned...
So, Mr Panda submitted, Section 467 IPC was introduced on 26.10.2006 on the allegation that fake mark-sheets were prepared and utilised by the accused including the petitioner. He then referred to the Supreme Court decision in Shriniwas Pandit Dharamadhikari v. State of Maharashtra to submit that forged certificates for getting admission to an university would not bring the offence under Section 467 IPC. In that case, the Supreme Court held thus:
The appellant was convicted of offence under Sections 417, 420 read with Section 511 and Section 471 read with Section 467 of the Indian Penal Code and sentenced to various terms of imprisonment and fine for those offences. Having heard counsel for both sides we do not find any reason to disturb the order of conviction in respect of offences under Sections 417 and 420 read with Section 511 but as regards the offence under Section 471 read with Section 467 IPC we do not think that the two certificates the appellant has been found to have forged to get admission in the Arts and Commerce College affiliated to Poona University could be described as valuable security as the expression is defined in Section 30 of the Indian Penal Code. We therefore alter the conviction under the aforesaid sections to one under Section 471 read with Section 465 of the Indian Penal Code...
Since, the aforesaid judgment of the Supreme Court did not spell out the nature of the two certificates in question, Mr Panda took time to inspect the record and then indicate the nature of the certificates which were considered by the Supreme Court not to constitute "valuable security" as defined in Section 30 IPC. Inspection of the file of criminal appeal No. 202 of 1975 and two other connected appeals before the Supreme Court was carried out and the result was set out in the shape of an affidavit dated 28.11.2006 of Mr Anil Karnwal, Advocate, to the following effect:
4. That upon inspection of the file of the Criminal Appeal No. 202 of 1975 & two other connected appeals before the Hon'ble Supreme Court of India, the deponent found that the appellant in the said Criminal Appeal has framed the following substantial Question of Law as under:
Whether Migration Certificate and the Mark Sheet would constitute Valuable Security within the meaning of Section 30 of the Indian Penal Code?
5. That as per the facts stated in the aforesaid Criminal Appeal No. 202 of 1975 & other two connected Criminal Appeals, the appellant obtained a Degree from Poona University, on the basis of the following two forged certificates along-with his application form which he had submitted to the Poona University:
1. A forged Migration Certificate of the Board of Secondary Education, M.P. (Bhopal). [ Exhibit - A].
2. A forged Mark-Sheet of the Intermediate Arts Examination held by the Board in the year 1968. [Exhibit - B].
So, it was submitted by Mr Panda, the Supreme Court found that the forged Migration Certificate and the forged Mark-Sheet used for securing admission to an university could not be described as valuable securities within the meaning of Section 30 IPC. That being the case, he contended that, in the present case also fake and forged mark-sheets are in issue. The Supreme Court having held forged mark-sheets not to be valuable securities, the case would not fall under Section 467 IPC. This is so because Section 467 IPC has reference to a forged document which purports to be (1) a valuable security or a will or an authority to adopt a son; or (2) a forged document which purports to give authority to any person (i) to make or transfer any valuable security, or (ii) to receive the principal, interest or dividends thereon, or (iii) to receive or deliver any money, movable property, or valuable security; or (3) any forged document purporting to be (i) an acquittance or receipt acknowledging the payment of money, or (ii) an acquittance or receipt for the delivery of any movable property or valuable security. The documents other than valuable security referred to above are clearly not in issue in the present case. Thus, as per the contention on behalf of the petitioner, unless the fake / forged mark-sheets involved in the present case can be brought with the meaning of valuable security which is defined in Section 30 IPC, no case under Section 467 IPC can be made out against the petitioner. And, because the Supreme Court held that a mark-sheet is not a valuable security, there is no question of invoking Section 467 IPC against the petitioner. Therefore, the relevant period would remain 60 days. It was thus contended that the said period of 60 days having already expired and the investigation not having been completed, the petitioner ought to be released on bail forthwith.
7. Ms Richa Kapoor, appearing on behalf of the State, submitted that in the course of investigation it was discovered that the fake and forged mark-sheets were not only used for securing admission in recognised universities but, mark-sheets pertaining to final year students were also being used as provisional degrees. She submitted that these documents constituted valuable securities as defined in Section 30 IPC. She submitted that Section 467 IPC was added on 26.10.2006 when the investigation revealed that not only were these fake and forged mark-sheets being used for securing admissions to universities but many of these forged documents were used as provisional degrees which also qualified the holders to secure jobs. Investigation is in progress and there is every likelihood that the accused persons, who have been indulging in preparing fake and forged mark-sheets have also issued degrees as well to students.
8. Ms Kapoor submitted, with reference to a Division Bench decision of this Court in Pradeep Mehta v. State and Anr. 2006 [3] JCC 1604, that the period of 90 days would be applicable because the expression used in Section 167(2) of the Code is "where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years". She urged that where the investigation related to such an offence, the period of detention permissible during the investigation would be 90 days. And, it would not make any difference if, after completion of investigation, such an offence is not found to be made out. In this context she quoted the following portion from Pradeep Mehta (supra):
The language of Section 167(2) is very clear in this regard. It is provided that the period of detention would be ninety days in case the police is investigating an offence which is punishable with death, life imprisonment or for a period of not less than ten years. Whether or not on the completion of investigation any such offence is made out is irrelevant for the applicability of Clause (i) of proviso (a) to Section 167(2) Cr.P.C.
In answer to Mr Panda's submission that Section 467 IPC was introduced only to scuttle the petitioner's right to bail on default which would accrue to him on 10.11.2006, on the completion of 60 days of remand and that by introducing Section 467 IPC on the same set of facts, the investigating agency has illegally enlarged the period from 60 days to 90 days, Ms Kapoor placed reliance on the following passage in Pradeep Mehta (supra):
16. Similarly the submission of Mr Mathur that it would be giving unnecessary latitude to the police to keep anyone in jail for ninety days on the pretext that it is investigating an offence which is punishable with death, imprisonment for life or for a term of not less than ten years even when no such offence is made out is not well founded. If an accused feels that he is being kept in custody without any such offence having been made out on the basis of material collected during investigation he can always approach the Court for bail even before the expiry of maximum period of detention of sixty/ninety days and if the Court is convinced the accused can always be released on bail and there is no requirement of law that an accused has to be kept in jail up to sixty/ninety days.
In this backdrop, Ms Kapoor submitted that if the petitioner felt that Section 467 IPC was being misapplied by the investing agency on the basis of the material collected during investigation, it was open to the petitioner to apply for bail on merits and take up this point. But, the petitioner would not be entitled to bail on default under Section 167(2) of the Code because the offence under Section 467 IPC was under investigation.
9. In my view, the first point urged by Mr Panda, stands answered by the above-quoted observations of the Division Bench decision in Pradeep Mehta (supra). As regards his second point based on the Supreme Court decision in Shriniwas Pandit Dharamadhikari (supra), it would be instructive to note that the said decision pertained to the stage of conviction/ acquittal post trial, whereas the present case is in the stage of investigation. As pointed out by Ms Kapoor, the present case is not one of fake mark-sheets simpliciter, but one where some of the forged mark-sheets have allegedly been utilised as provisional degrees for the purposes of securing jobs. This latter aspect was not considered in Shriniwas Pandit Dharamadhikari (supra), where the fake make-sheet and fake migration certificate were utilised only for the purposes of securing admission in an university. Therefore, at this stage it cannot be conclusively held whether the documents in question in the present case were valuable securities or not.
10. It must be kept in mind that investigation is within the exclusive domain of the police/ investigating agency. It is their right, nay duty, to investigate into a cognizable offence. If any authority were needed, reference to two decisions of the Supreme Court would suffice. In Union of India v. Prakash P. Hinduja , the Supreme Court held:
20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.
In T.T. Antony v. State of Kerala , the Supreme Court held:
23. The right of the police to investigate into a cognizable offence is a statutory right over which the court does not possess any supervisory jurisdiction under CrPC. In Emperor v. Khwaja Nazir Ahmad the Privy Council spelt out the power of the investigation of the police, as follows: (AIR p. 22) In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.
24. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well-recognised limitations. One of them, is pointed out by the Privy Council, thus: (AIR p. 22) [I]f no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation;.
25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice.
So, although investigation is within the exclusive domain of the police/ investigating agency, any transgression of this power of investigation is subject to judicial review by the High Court under Articles 226/227 of the Constitution or under Section 482 of the Code. Section 167(2) of the Code, however, stands on an altogether different footing. If any offence punishable with death, life imprisonment or imprisonment for a term of not less than ten years is being investigated, the court, at that stage, considering an application under Section 167(2) for bail on default cannot go into the question of whether the offence is made out or not. If the police transgresses its power of launching a legitimate investigation, the remedy is not in approaching the court under Section 167(2) but, in either applying for bail on merits (as suggested in Pradeep Mehta (supra)) or in approaching the High Court under Article 226/227 of the Constitution or under Section 482 of the Code for interdicting such an investigation, as indicated in T.T. Antony (supra).
11. This discussion leads to the inescapable conclusion that the petitioner is not entitled to bail on default as the period of 90 days applicable in the case of an investigation relating to the offence under Section 467 IPC has not elapsed. The petition is dismissed. However, dismissal of this petition does not debar the petitioner from applying for regular bail on merits.