Bombay High Court
Sameer Dyandev Wankhede vs Union Of India And Ors on 22 May, 2023
Author: M.M. Sathaye
Bench: Abhay Ahuja, M.M. Sathaye
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.9645 OF 2023
Sameer Dyandev Wankhede ... Petitioner
Vs.
Union of India and ors. ... Respondents
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Mr.Aabad Ponda, Senior Advocate with Mr.Karan L. Jain, Advocates for
the Petitioner.
Mr.Kuldeep Patil with Ms.Saili Dhuru, Advocates for Respondent
No.2/CBI.
Ms.Manisha Jagtap, Advocate for Respondent No.3/NCB.
Ms.M.H.Mhatre, APP for Respondent No.4/State.
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CORAM : ABHAY AHUJA AND
M.M. SATHAYE, JJ.
DATE : 22 MAY, 2023.
(VACATION COURT)
P.C. :
1. Heard learned counsel for the parties.
2. On 19th May, 2023, this court (Coram : Sharmila U. Deshmukh and Arif S. Doctor, JJ.) passed the following order :-
"1. Not on board. Taken on board.
2. By this petition the petitioner seeks quashing of the FIR dated 11/5/2023 registered at CBI/AC-II/New Delhi registered against the petitioner and Ors under section 7 Priya Soparkar 1 of 6 ::: Uploaded on - 22/05/2023 ::: Downloaded on - 26/05/2023 23:18:02 ::: 2 11 wpst 9645-23-cr.doc or 7A or 120B of the IPC.
3. The petition has been urgently circulated seeking ad-interim relief not to take coercive action against the petitioner.
4. Heard.
5. Learned counsel appearing for the petitioner submits that the FIR has been registered on 11/5/2023 pursuant to the sanction which has been granted under section 17A of the Prevention of Corruption Act, 1988 (for short, "the Act") on 11/5/2023. He would submit that the second proviso to Section 17A of the Act creates a legal bar. He would further submit that the Apex Court in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604 held that one of the conditions in which FIR ought to be quashed is where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding is instituted. He would submit that inquiry in the present case is relatable to the offence of the year 2021 and as such the prescribed period of 4 months under section 17A of the Act has already lapsed. He would further submit that even taking into consideration the report of the Special Inquiry Team dated 25/10/2021, bar under section 17A of the Act would still apply. He would further point out that on 14/5/2023 the notice has been issued under section 41A of Cr.P.C. and as such the arrest of the person is not required unless there is non compliance. He would further point out that the directions which are set out in the notice under section 41A of Cr.P.C. makes the petitioner vulnerable in as much as in event of non compliance of the directions the power under section 41A (3) (4) of Cr.P.C. still be invoked.
6. Per contra, learned counsel for respondent No.2 and learned counsel for Respondent No.3 submits that the sanction has been granted on 11/5/2023 and as such the period of 4 months would commence after the order of Priya Soparkar 2 of 6 ::: Uploaded on - 22/05/2023 ::: Downloaded on - 26/05/2023 23:18:02 :::
3 11 wpst 9645-23-cr.doc sanction. He would further submit that the provisions of section 17A of the Act are contained in Chapter IV which deals with investigation into the case and investigation has commenced now. He would further request for time to place on record affidavit in reply and sanction which has been granted in the present case.
7. Considered the submissions. Today the petitioner is before us for a limited relief not to take any coercive action against the petitioner. Learned counsel appearing for the petitioner makes a statement on instructions of the petitioner, present in court, that the petitioner will co- operate with the investigation and attend the office of respondent No.2 at BKC, Mumbai tomorrow a 11.00 a.m. and as and when required.
8. Considering that the Petitioner undertakes to appear before the Investigating Agency -Respondent No.2 tomorrow, prima facie, the question of invoking Section 41A(3) and (4) of Cr.P.C. does not immediately arise. As the respondent No.2 seeks time to file affidavit in reply and as we have listed the matter for further hearing on 22/5/2023, in view of the above, in the meantime respondent not to take any coercive action till next date i.e. 22/5/2023.
9. Let affidavit in reply on behalf of respondents be tendered in the Registry on 22/5/2023 with an advance copy to the learned counsel for the petitioner.
10. Stand over to 22/5/2023."
3. Today when the matter is called out, learned counsel for the Respondent No.3 - Narcotics Control Bureau ("NCB" for short) tenders across the bar a reply dated 22nd May, 2023. Ms.Jagtap, learned counsel Priya Soparkar 3 of 6 ::: Uploaded on - 22/05/2023 ::: Downloaded on - 26/05/2023 23:18:02 ::: 4 11 wpst 9645-23-cr.doc for the NCB - Respondent No.3 would submit that as stated in the reply prior permission under section 17A of the Act was obtained in 21 days and as such there is no breach of section 17A of the Act.
4. Mr.Kuldeep Patil, learned counsel for the Central Bureau of Investigation ("CBI" for short) submits that as far as the question of approval of section 17A of the Prevention of Corruption Act, 1988 ("the Act" for short) is concerned, the CBI would like to adopt the reply filed by Respondent No.3.
5. To this, Mr.Ponda, learned counsel for the Petitioner seeks some time to file a counter affidavit submitting that there are detailed factual allegations that need to be rebutted in the matter before the matter is heard any further.
6. Mr.Kuldeep Patil, learned counsel for the CBI would further submit that if a blanket extension is given to the order dated 19 th May, 2023, the same may come in the way of any arrest or action that the CBI may want to take under section 41 of the Cr.P.C. and therefore, the said order cannot be indefinitely continued. He however submits that the Priya Soparkar 4 of 6 ::: Uploaded on - 22/05/2023 ::: Downloaded on - 26/05/2023 23:18:02 ::: 5 11 wpst 9645-23-cr.doc investigation is going on and that the Petitioner has been attending to the investigation. He submits that on the prayers sought in the writ petition with respect to quashing of the FIR, a detailed reply would be necessary and seeks some time to file the same. He also submits that since investigation is going on, Petitioner would be required to attend the investigating agency as and when called for and also that the Petitioner should not transmit any messages to the media or to any other person with respect to the subject matter of the FIR and also not to tamper with the evidence in any manner whatsoever.
7. Having heard learned counsel for the Petitioner, for the CBI as well as for the NCB, the following order is passed:-
(i) List the matter on 8th June, 2023.
(ii) Let the CBI file a reply by 3 rd June 2023. Counter/Rejoinder affidavit, if any, be filed by 7th June, 2023.
(iii) The protection granted by order dated 19th May, 2023 to continue till the next date subject to the following conditions:-
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(a) The Petitioner shall not publish any material by way of whatsapp or by any other mode with respect to the subject matter of the petition or investigation or give any press statement or tamper with evidence in any manner whatsoever.
(b) The Petitioner shall attend to the Investigating Agency as and when called for by the concerned Officer.
(c) The Petitioner to file an affidavit undertaking in this regard by end of today.
(M.M. SATHAYE, J.) (ABHAY AHUJA, J.)
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