Calcutta High Court (Appellete Side)
Cbi vs Sri Prateek Bhalotia And Ors on 24 April, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
In the High Court at Calcutta
Criminal Revisional Application
Appellate Side
24.04.2014
Court No. (31) CRR 1230 of 2014 With CRR 1294 of 2014 CBI ...Petitioner Vs. Sri Prateek Bhalotia and Ors.
...Opposite Parties For the petitioner: ‐ Sri Md. Ashraf Ali For the opposite parties 3 to 6: ‐ Sri F.M.Razack; Sri P.Sinha;
Sri A.Mitra;
Sri Manoj Malhotra;
Sri Dolon Dasgupta;
For the opposite party no.1 :‐ Sri Sekhar Basu; Sri Milan Mukherjee;
Sri Sabyasachi Banerjee;
Sri Soorjya Ganguly;
Sri Rishab Banerjee;
Sri Anirban Dutta;
For the opposite party no.1 in CRR 1294 of 2014:‐ Sri Saibal Mondal By filing CRR 1230 of 2014 the CBI as petitioner has challenged order impugned dated 7th April 2014 passed by the ld. 3rd Special Court, Calcutta in case on. RC 0102014A0009 dated 3rd April 2014.
Also by filing the connected CRR 1294 of 2014 the CBI has challenged further order dated 10th April 2014 2 passed by the said 3rd Special Court, Calcutta in the same case viz, RC0102014A0009 dated 3rd April 2014. By the first impugned order dated 7th April 2014 the ld. Special Court was pleased to consider the prayer for police custody made by the CBI in respect of all the 7 accused persons. The ld. Special Court was pleased to take notice of the following facts in its order dated 7th April 2014:-
a) That at the stage of dictating its order at 7 pm an application was filed on behalf of the accused persons at 4.20 pm to the effect that none of the accused were produced in spite of the direction of the ld. Special Court. Ultimately the accused persons were produced before the ld. Special Court at 4.50 pm and vehement objection raised on behalf of the accused persons over such delayed production. The ld. Special Court was pleased to record the fact that time and again the prosecuting agency has produced the accused persons beyond Court hours. The ld. Special Court was pleased to take exception on this fact.
b) The ld. Special Court was pleased to record that no further remand will be accepted after 4.30 pm. If any accused person was produced before the ld. Court after court hours the court shall not entertain such production. Moreover, the production of the accused beyond court hours is not envisaged in law. 3
Accordingly, the ld. Special Court was pleased to show cause S.P, ACB, CBI.
c) On the merits of the case the ld. Special Court on perusal of the case diary was pleased to find that during police custody of three of the accused persons "Though little, but some materials have been collected by the CBI in respect of this case."
The ld. Special Court was also pleased to hold that the case diary reflects several statements of the witnesses which shows the connection of the accused persons with this case. After taking into account the rival submissions, the ld. Special Court was inclined not to allow the prayer for police custody of accused nos .2 and 3 but in respect of accused nos.4 to 7 the police custody was allowed for four days.
d) With regard to the accused no.1 the ld. Special Court was pleased to hold that sufficient interrogation has been done by the CBI within 3 days of police custody and since the accused no.1 is suffering from brain haemorrhage, on medical grounds the bail prayer of the said accused no.1 was allowed.
e) The accused nos.2 and 3 were remanded to judicial custody till 10th April 2014. The accused nos. 4 to 7 were remanded to police custody for 4 days. The next date of production was fixed on 10th April, 2014. The ld. Special Court was pleased to direct that the 4 Investigating Agency must produce the accused before the ld. Special Court positively before 2 pm on the next date failing which the detention of the accused persons shall be treated to be illegal and irrespective of the merit of the case they will be enlarged on bail. Since the order was passed at 7.30 p.m. the bail of the accused no.1 was made conditional upon the undertaking given by his ld. advocate to appear before the Court at 10.30 a.m. positively on the next date, i.e. 8th April 2014 and arrange for surety as directed.
f) In view of the inability expressed by CBI to keep the accused nos. 2 and 3 in judicial custody, they were directed to be detained at the Head Office of CBI at Nizam Palace, Kolkata for production on the next date i.e. 8th April, 2014.
By the subsequent order dated 10th April, 2014 impugned in CRR 1294 of 2014 the ld. Special Court was again pleased to consider the bail applications filed on behalf of the accused persons in custody alongwith the remand application filed on behalf of the CBI praying for police custody in respect of the other accused persons. The ld. Special Court was also pleased to consider the reply to the show cause filed by the SP, ACB, CBI expressing his unconditional apology due to the late production of the accused persons. Such apology was accepted. The ld. Special Court was further pleased to take note of the 5 submission made on behalf of the prosecuting agency that the allegation of bribery amounted to a sum of Rs.1 crore and the money was seized from different places of the country, the police custody of all the accused persons is necessary for interrogation. On 10th April, 2014 it was brought to the notice of the ld. Special Court that the present revisional application being CRR 1230 of 2014 is pending before this Hon'ble Court. In view of the pendency of CRR 1230 of 2014 before this Hon'ble Court, although no order of stay was passed at that stage by the Hon'ble Court no further order was passed by the ld. Special Court on 10th April 2014 except that the accused persons were in police custody for more than two days and the CBI having received sufficient opportunity to interrogate them, the further detention of the said accused persons in police custody is not necessary. Therefore, the ld. Special Court was pleased to direct judicial custody in respect of the accused persons with the observation that the Investigating Agency may conduct the custodial interrogation in terms of any direction to be passed by this Hon'ble Court. Accordingly, the accused persons were remanded to judicial custody till 22nd of April, 2014 on which date they were required to be next produced. Sri Ashraf Ali, ld. Counsel for the petitioner has argued the following:-
6
That this is a serious case involving alleged gratification sought to be obtained by a Commissioner, Central Excise, Kolkata II Commissionerate alongwith another official of the same department. The opposite party nos.1 and 2 in CRR 1230 of 2014 were arrested on the 5th of April, 2014 in Kolkata and they were produced before the ld. Special Court on the same date. However, the ld. Special Court was pleased to remand them to police custody only till 7th of April, 2014 against the prayer for 7 days police custody. According to Sri Ali, the bribe money was recovered on the 4th of April, 2014 and on 15th April, 2014 the other accused persons being the opposite parties no.4 and 6 were arrested in Mumbai. The OP 3 in CRR 1230 of 2014 was arrested on the 5th of April, 2014. Transit remand of the Ops 3 to 6 was granted by the ld. Special Court, Greater Mumbai till 7th of April, 2014.
Sri Ali further submits that on 7th April, 2014 the investigating officer reached the CBI office Calcutta with the Ops 3 to 6 and, on the same date the OPs 1 and 2 were produced before the ld. Special Court in Kolkata. The OPs 3 to 6, who were arrested in Mumbai and on transit remand were also produced on the same date, i.e. 7th April, 2014 when the ld. Court was pleased to pass its order. Sri Ravinder 7 Kumar Bhalotia, the Accused no.1 is on bail which was allowed on medical ground.
The OP 7 in CRR 1294 of 2014 was arrested on the 8th of April, 2014 and produced before the ld. Special Court at Calcutta on the 9th of April, 2014.He was directed to be produced on the next date and, on 10th of April 2014 further orders, as noted above by this Court, was passed by the ld. Special Court remanding the accused to judicial custody.
Sri Ali further submits that the OP 7 in CRR 1294 of 2014 is of the rank of Superintendent of Central Excise under the OP2 of CRR 1230 of 2014, both being officers of the Excise Collectorate and alleged to be the beneficiaries of the illegal gratification. Sri Ali submits that at the time of production before the ld. Special Court of the OP 7 of CRR 1294 of 2014, the OPs 1 and 2 of CRR 1230 of 2014 were already in judicial custody. Sri Ali complains of the fact that the Investigating Agency having regard to the nature of the alleged crime ought to have received adequate opportunity to confront the accused persons with each other in police custody to ascertain the details of the illegal gratification and the manner in which the said illegal gratification was sought to be paid at Kolkata and at Mumbai.
He submits that the ld. Special Court ought to have noticed the fact that the Investigating Agency, in 8 view of the alleged crime which has spread out to two cities separated by a large distance, ought to be allowed to avail of interrogation in police custody and, in the absence of such opportunity, the investigation is bound to suffer prejudice. The fact that the alleged crime involves a substantial sum of money as well as the fact that the payment of the alleged illegal gratification was spread out through several persons and, in at least two cities, the ld. Special Court failed to exercise jurisdiction vested in it under Section 167 CrPC. He submits that the ld. Special Court committed error in fact and in law by not allowing the police remand required in cases of such magnitude. Sri Basu, ld. Senior Counsel appearing on behalf of the OP 1 and Sri Ghosh, ld. Counsel appearing for the OP2 in both the CRRs have argued that a pure question of law has arisen for consideration by this Court based on the factual matrix of this case.
According to the ld. Counsel, the Hon'ble Apex Court in the decision reported in 1992 (3) SCC pg.141 in the matter of Central Bureau of Investigation Vs Anupam J. Kulkarni has made it clear while examining the provisions of Section 167 CrPC that the total period of remand to police custody / judicial custody shall initially be 15 days by a single order or several orders of the Judicial Magistrate or 7 days by order/orders of 9 the Executive Magistrate, as the case may be. The period of remand ordered by the Executive Magistrate shall be deducted in computing the total period of custody.
Both the ld. Counsel have emphatically pointed out before this Court that in Kulkarni's case (supra) the Hon'ble Apex Court has been pleased to categorically hold that the period of police remand shall be only confined to the first 15 days of custody and further remand for 90/60 days in terms of proviso 2 Sub- section 2 of Section 167 CrPC shall only be to judicial custody. The period of detention shall be computed from the date of the order of remand.
Drawing this Court's attention to para 13 of Kulkarni's judgment the ld. Counsel point out to the following finding of the Hon'ble Apex Court:-
"There cannot be any detention in the police custody after the expiry of first 15 days even in a case where some more offences, either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier case he can formally by arrested regarding the involvement in the different case and associate him with the investigation of that other case and the 10 Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during first period of 15 days and thereafter in accordance with the proviso as discussed above..."
Both Sri Basu and Sri Ghosh submit that the ratio of the decision in Kulkarni's case makes it abundantly clear that police remand can only apply to the first 15 days of custody and that the first period of detention is to be computed from the date of the order of remand. On the expiry of the first 15 days there is no further scope by the ld. Special Court to direct police remand.
Both the ld. Counsel rely upon decisions of the Hon'ble Apex Court in Devender Kr. And Anr. Vs. The State of Haryana and Ors. reported in 2010 SCC pg.753 and in Budh Singh Vs. The State of Punjab reported in 2000 (9) SCC pg. 266. They point out that the facts of Budh Singh's case (supra) are parmateria to the facts of this case. In Budh Singh's case the Hon'ble Apex Court was pleased to hold that upon expiry of the first 15 days of detention, there cannot be any scope of directing police remand. In the said case the Hon'ble Apex Court was pleased to refer to Kulkarni's case.
11In Devender Kumar's case the Hon'ble Apex Court at para 10 thereof was pleased to hold as follows:-
"With regard to the second point which was urged by Mr. Luthra, the same was considered in depth and was settled in the case of Anupam J. Kulkarni's case (supra) referred to hereinabove. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Special Court, but not after the expiry of the said period. Of course, we do not agree with the submissions made by Mr. Luthra that the second application for police remand is not maintainable even if made during the first 15 days period after arrest. The said point has also been considered and decided in the above case. Within the first 15 days of arrest the Magistrate may remand the accused either to judicial custody or police custody for a given number of days, but once the period of 15 days expires, the Magistrate cannot pass orders for police remand."
Sri Razack, ld. Counsel appearing on behalf of the OPs 3 to 6 in both CRRs in addition to relying on the ratio of the judgment of the Hon'ble Apex Court in Kulkarni's case has urged the additional point that Section 6A of the Delhi Special Police Establishment Act, 1946 (for short the 1946 Act) creates a bar to 12 further investigation of this case by the CBI in view of the failure on the part of the Investigating Agency to obtain approval of the Central Government. He submits that in terms of Section 6 A of the 1946 Act the employees of the Central Government of the level of Joint Secretary and above, if sought to be investigated by the CBI for any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (for short the PC Act), cannot be investigated or inquired into without the approval of the Central Government.
He submits that in the facts of this case the alleged illegal gratification was to be paid to the OP 2, the Commissioner, Central Excise, Kolkata II Commissionerate who is admittedly an officer in/above the level of Joint Secretary in the Central Government. He asserts that the Investigating Agency shall not be able to point out before this Court that any approval of the Central Government as mandated under Section 6 A of the PC Act was obtained by it prior to causing enquiry into or investigation of this case. In the absence of such approval the investigation cannot be carried forward and must be deemed to be bad in law.
By way of reply Sri Ali points out that vide Section 6 A (2) of the 1946 Act, the following is provided:- 13
" Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause © of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988)."
According to Sri Ali this is a case which falls within the four corners of Section 6A(2) and no approval is required involving arrest of a person on the spot on the charge of accepting or admitting to accept any illegal gratification. He submits that the facts of this case shall amply demonstrate that a prima facie case of alleged illegal gratification has been made out against the OP2 of CRR 1230 of 2014 and CRR 1294 of 2014. The circumstances leading to payments of such alleged illegal gratification have resulted in the arrest of several persons on the spot carrying money. In that view of the matter, the provisions of 6A (2) squarely apply and the question of obtaining approval of the Central Government shall not stand in the way. Sri Saibal Mondal, ld. Counsel appearing for the OP 7 in CRR 1294 of 2014, in addition to reiterating the arguments advanced on behalf of the other OPs with regard to the period of police remand has further argued that the entire documents in connection with the case have already been seized and no further 14 purpose will be served by keeping the accused persons in police custody. He submits that there is ample opportunity for the Investigating Agency to place questions to the accused persons and confront them in judicial custody with the prior permission of the ld. Special Court. However, no such prayer for permission to interrogate the accused persons in judicial custody appears to have been made before the ld. Special Court. It is his further submission that the grounds made out in CRR 1294 of 2014 do not indicate in any respect that the order impugned dated 10th April, 2014 is illegal.
Heard the parties. Considered the materials on record.
In the opinion of this Court the following conclusions emerge:-
a) That on the date of passing order today the first 15 days of the period of detention from the date of order of remand has expired in the case of OPs 1 to 6 of both CRRs due to efflux of time.
b) In respect of OPs 1 and 2 of CRR 1230 of 2014 and CRR 1294 of 2014 the first date of order of remand was on the 5th of April, 2014. In respect of the OPs 3 to 6 the first date of order of remand was on the 7th of April, 2014. In respect of OP 7 the first date of the order of remand was 9th of April, 2014. 15
c) In terms of the ratio of the decision of the Hon'ble Apex Court in Kulkarni's case and followed in Budh Singh's case and Devender Kumar's case the period of first 15 days in police custody to be computed from the date of remand has expired in the cases of each of the accused persons being the OP nos. 1 to 6 from the dates of their respective first orders of remand on the 5th of April, 2014 and on the 7th of April, 2014. However, the first 15 days of police custody from the date of the order of remand in respect of the accused -OP7 of CRR 1294 of 2014, who was produced and remanded on 9th April, 2014, is scheduled to expire today i.e. 24th April, 2014 in terms of the law laid down in Kulkarni's case .
d) This Court notices the fact that the ld. Special Court took umbrage at the conduct of the prosecuting agency with regard to the production of the accused persons before him. It appears to the mind of this Court that while on the one hand by order dated 7th April, 2014 the ld. Special Court was pleased to peruse the case diary and arrive at the conclusion "though little but some materials have been collected by the CBI in respect of this case", on the other hand by order dated 10th April, 2014 the ld. Special Court was pleased to observe 16 that the CBI has got sufficient opportunity to interrogate the accused persons in police custody.
e) The observations of the ld. Special Court on 7th April, 2014 to the extent that little but some materials have been collected by the CBI, to the mind of this Court ought to have guided the ld. Special Court in considering police custody. The ld. Special Court ought to have considered the fact that this case involves alleged illegal gratification of a substantial amount and the accused persons were arrested from different places. Therefore this Court finds reason in the argument of Sri Ali that interrogation was necessary in police custody.
f) This Court is of the further opinion that in view of the non-production of the accused persons before the ld. Special Court within Court hours as observed by it by order dated 7th April, 2014 for which the ld. Special Court issued show cause upon SP, ACB, CBI the ld. Special Court failed to appreciate the gravity behind the prayer for police remand made on behalf of the CBI. In the further opinion of this Court, although the ld. Special Court was correct in chastising the Investigating Agency for its failure to produce the accused within proper time, at the same time, the compulsions of production ought not to have overshadowed the 17 necessity of considering in proper perspective the prayer for police remand in the particular facts and circumstances of this case.
g) This Court is bound by the ratio of the decision in Kulkarni's case and therefore, in spite of appreciating the necessity of police remand made by the prosecuting agency for proper investigation of a case of this nature, is unable to direct the ld. Special Court to consider police remand upon expiry of the first 15 days from the date of order of remand in case of the OP nos. 1 to 6 - accused.
h) However, in view of the expiry of the first 15 days from the date of order of remand today, 24th April, 2014 in respect of the OP7-accused in CRR 1294 of 2014, this Court grants leave to the prosecuting agency to pray for a day' police remand of the said OP7 before the ld. Special Court which shall be then considered by the ld. Special Court in accordance with law.
Needless to state, the ld. Special Court will consider the requirement of further judicial custody in respect of each of the OP-accused persons on merits.
With the above observations CRRs 1230 and 1294 of 2014 are disposed of.
18There will be however, no order as to costs. Parties are granted the liberty to communicate and act on the gist of this order.
Urgent Xerox Photostat copies to be supplied to the parties.
(Subrata Talukdar, J.)