Delhi District Court
Mr. Shivpriya vs State on 7 July, 2021
IN THE COURT OF NAVEEN GUPTA
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS, DELHI
Crl. Revision No.29/21
Case I.D. No. 47/21
PS EOW
In the matter of:
Mr. Shivpriya
S/o Mr. Kishori Mohan Sharma
Through Parokar Mr. Sunil Kumar (brother of revisionist)
R/o Pearl Gateway Tower, 1801,
Sector-44, Noida, UP. .......... Revisionist
Versus
State
Government of NCT of Delhi
Through Police Station EOW, Mandir Marg .......... Respondent
Date of institution : 03.07.2021
Date of reserving the order : 06.07.2021
Date of order : 07.07.2021
ORDER
1. By this order, the Court has decided the revision petition filed by the revisionist, challenging the order dated 23.06.2021 passed by Ld. Duty MM, Shahdara, Karkardooma Courts, Delhi, whereby the Court has allowed the application moved for remanding the accused (revisionist herein) to judicial custody for 14 days.
2. Brief facts and circumstances leading to filing of the present revision are that an FIR bearing No. 33/19, under Sections 406/ 420/ 120-B IPC was registered at PS EOW on 12.03.2019 bearing the name of CR No. 29/2021 Shivpriya v. State 1 of 7 (Case I.D. No. 47/21) Digitally signed by NAVEEN GUPTA NAVEEN GUPTA the revisionist in the column of suspect/accused. On 23.06.2021, the investigating officer (for short 'IO') moved an application before the Court for remanding the accused to judicial custody for 14 days. In the said application, the IO has inter-alia stated that the allegations have been made against M/s. Amrapali Leisure Valley Pvt. Ltd. and its Directors including Shivpriya (revisionist herein) in respect of the projects Jaura Heights and Verona Heights. It had been promised to the victims that possession of flats booked by them in the said project shall be delivered within 42 months with additional grace period of 6 months. The possession of the flats was to be given by the year 2018, however, the construction of the projects is at very nascent stage. The accused company has collected around 50% of the price from the home buyers, while it has abandoned the project. From perusal of the balance sheet and financial data available, it has been found that Rs.1009.4 crores approximately was raised by the accused company for the allotment of the flats from the innocent victims. The officials of the accused company initially diverted the fund raised from the buyers, as short term loans to other entities and later, converted the same towards long term loans and advances amounting to Rs.570 crores. The IO mentioned in the application that the accused persons including Shivpriya were arrested in the present case on 23.06.2021. Further, in the abovesaid application, the investigating officer has given following reasons for remanding the accused to judicial custody:
There are more than 36 cases registered against Amrapali Group of Companies in Delhi and Noida, UP.
The investigation of the present case is still in progress and charge-
sheet is to be filed.
They may influence the witnesses to frustrate the case of prosecution.
CR No. 29/2021 Shivpriya v. State 2 of 7
(Case I.D. No. 47/21)
Digitally signed by
NAVEEN GUPTA NAVEEN GUPTA
3. By the impugned order dated 23.06.2021, Ld. Duty MM, Shahdara allowed the abovesaid application with observations that 'it seems that after filing of the complaint in the present matter in February/March, 2019, the investigation had been initiated and due to current pandemic of Covid-19, the investigation came to a halt in the year 2020 and uptil now.
As per the case diary of the IO, the bank accounts statements of M/s. Amrapali Leisure Valley Pvt. Ltd. have been recently obtained in June, 2021 and as per which, all the three accused persons seem to be authorized signatories of bank accounts of the said entity. It seems that a huge amount of money in crores were collected/invested by the complainants/investors in the year 2012-2013 and despite which, hardly any construction started. All the three accused persons are involved in similar such cases with respect to different real estate projects started by Amrapali Group of Companies. The group of companies itself is more than 40 companies. Considering the facts of the present case and the above reasons, this Court is satisfied that the arrest of the accused persons was not improper. If the accused persons are released, there is a likelihood that they would tamper with evidence and influence witnesses and may even avoid trial proceedings.'
4. Aggrieved from the abovesaid order, the revisionist has moved the present revision petition. The Court has heard arguments from Ld. Counsel for the revisionist and Ld. Addl. PP for the State representing the respondent.
5. Ld. Addl. PP for the State has argued that the impugned order, by virtue of which the accused had been remanded to judicial custody, is an interlocutory order. Hence, the present revision petition is not CR No. 29/2021 Shivpriya v. State 3 of 7 (Case I.D. No. 47/21) Digitally signed by NAVEEN GUPTA NAVEEN GUPTA maintainable. He has relied upon a precedent laid down by Hon'ble Supreme Court in State Represented by Inspector of Police & Ors. v. N.M.T. Joy Immaculate, (2004) 5 SCC 729.
6. Ld. Addl. PP has further stated that the revisionist is involved in 62 criminal cases, wherein some of the cases pertain to offences attracting punishment for more than 7 years. She is still running in judicial custody in 14 criminal cases. The accused persons were arrested in the present case for proper investigation and securing their presence before the court of law for facing trial. Ld. Addl. PP has further stated that during the course of investigation, Insp. Rajneesh Kumar had examined the victims and collected the documentary evidence against the accused persons. The investigation of the present case was halted due to imposition of national lockdown pursuant to Covid-19 pandemic. Thereafter, the investigation was assigned to the present IO SI Parveen Badsara on 01.02.2021. He perused the case file and bank record of the accused company. Since sufficient evidence had come on record against the accused persons and there were sufficient grounds for effecting the arrest of accused persons, they were arrested on 23.06.2021. Ld. Addl. PP has further stated that so far as argument of the revisionist is concerned that she had resigned from the Directorship of the accused company, it is pertinent to note that she was an active Director at the time of commission of alleged offence.
7. Ld. Counsel for the revisionist has argued that Ld. Duty MM, Shahdara has remanded the revisionist to judicial custody in mechanical manner. Present FIR had been registered on 12.03.2019, but the IO did not arrest the revisionist till 23.06.2021. It is pertinent to note that the revisionist had been in custody since 28.02.2019 in other cases. It is CR No. 29/2021 Shivpriya v. State 4 of 7 (Case I.D. No. 47/21) Digitally signed by NAVEEN GUPTA NAVEEN GUPTA worth mentioning that vide order dated 28.02.2019, the Hon'ble Supreme Court has allowed the application filed by the Deputy Commissioner of Police, EOW, Delhi Police seeking permission to arrest and take into custody various Directors, Anil Kumar Sharma, Shiv Priya and Ajay Kumar with observations that 'Let the police investigate the entire gamut of the scenario of the various projects, as projected in this case and various orders passed and investigate the entire matter. Prima-facie, we find that the case requires serious investigation in the facts projected by the Directors, CFO and the statutory auditors.' Ld. Counsel has further stated that vide order dated 23.07.2019 of the Hon'ble Supreme Court, Sh. R. Venkataramani, Learned Senior Advocate was appointed as the Court Receiver. Thereafter, all records of the alleged company were handed over to forensic auditor/receiver and as such, the revisionist in no manner is having any control over the same. Furthermore, the revisionist had resigned from Directorship of the accused company on 30.08.2016.
8. Ld. Counsel for the revisionist has further argued that the IO did not comply the provisions provided under Sections 41(1)(b) and 41-A Cr.P.C. and also the mandate given by the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756. Accordingly, the arrest of the revisionist was not made in accordance with the applicable provisions of law. He has further stated that since the IO had not followed the mandatory provisions of Cr.P.C. as well as the guidelines provided in the above-mentioned precedent, Ld. Duty MM, Shahdara should not have allowed the application of IO requesting remand of the accused to judicial custody. Thus, the precedent relied upon by Ld. Addl. PP for the State is not applicable in the facts and circumstances of the present case and this revision petition is maintainable.
CR No. 29/2021 Shivpriya v. State 5 of 7
(Case I.D. No. 47/21)
Digitally signed by
NAVEEN GUPTA NAVEEN GUPTA
9. First of all, this Court is required to look into the aspect of maintainability of the present revision petition. Vide the impugned order dated 23.06.2021, Ld. Duty MM, Shahdara has remanded the accused (revisionist herein) to judicial custody for 14 days. In the case of N.M.T. Joy Immaculate (supra), the Hon'ble Supreme Court has held that:
13. Section 167 Cr.P.C. empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 Cr.P.C. confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Sessions and also until the conclusion of the trial. Section 309 Cr.P.C. confers power upon a Court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor it can have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye's case (supra), it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 Cr.P.C., a revision against the said order is not maintainable.
10. In the abovesaid precedent, the Hon'ble Supreme Court has categorically held that 'if an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings.'
11. The Hon'ble Gujarat High Court has recently followed the above mentioned precedent in Ramanbhai Bholidas Patel v. State of Gujarat, in R/CR.RA/65/2021 decided on 22.01.2021, wherein the Court has held that:
3. At the outset, learned Public Prosecutor has raised a preliminary objection with regard to the maintainability of the present Revision Application in as much as according to him, an order remanding the accused to the custody would be an interlocutory order and therefore, the CR No. 29/2021 Shivpriya v. State 6 of 7 (Case I.D. No. 47/21) Digitally signed by NAVEEN GUPTA NAVEEN GUPTA same would not be maintainable as specified under Section 397 (2) of the Cr.P.C.
8. In so far as the preliminary objection raised by the learned Public Prosecutor, this Court is of the considered opinion that in view of the clear dictum laid by the Hon'ble Supreme Court that an order granting remand is an interlocutory order, therefore, present Revision Application challenging order impugned would not be maintainable.
[Emphasis supplied]
12. It is pertinent to note that by virtue of the impugned order, Ld. Duty MM, Shahdara has remanded the accused to judicial custody. Thus, by applying the abovesaid precedents, the impugned order dated 23.06.2021 is an interlocutory order since the order does not culminate the proceedings against the accused (revisionist herein). That being so, the present revision petition challenging the order of Ld. Duty MM, Shahdara dated 23.06.2021, is not maintainable.
Accordingly, the revision petition is dismissed. Revision file be consigned to Record Room. Trial Court Record be sent back to the Ld. Trial Court alongwith a copy of this order.
Digitally signed by NAVEEN GUPTA NAVEEN GUPTA Announced Through NAVEEN GUPTA Video Conferencing Addl. Sessions Judge - 05 on 7th July, 2021 Shahdara District, Karkardooma Courts, Delhi CR No. 29/2021 Shivpriya v. State 7 of 7 (Case I.D. No. 47/21)