Karnataka High Court
Shri.Sushil Kumar Valecha vs Central Bureau Of Investigation on 11 July, 2014
1 Crl.RP 193/14
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JULY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL REVISION PETITION No.193 OF 2014
BETWEEN:
Sushil Kumar Valecha,
Aged about 65 years,
S/o. Late K.C. Valecha,
Director,
M/s. Shri Lal Mahal Limited,
No.B-16, Bhagawandas Nagar,
New Delhi - 110 026. ... PETITIONER/S
[BY Sri. Dil Jit Singh Ahluwalia, Adv. for
Sri. Rajendra S., Adv.]
AND:
Central Bureau of Investigation,
Anti-Corruption Bureau,
Bangalore,
No.36, Bellary Road, Ganganagar,
Bangalore - 560 032.
Rep. by the Addl S.P.,
CBI: BS & FC, Bangalore. ... RESPONDENT/S
[By Sri. C.H. Jadhav, Sr. Adv.]
***
2 Crl.RP 193/14
This Crl.R.P. is filed U/Section 397 r/w. 401
Cr.P.C. praying to call for and examine the record
of proceedings before the Spl.CBI Judge, Bangalore
in Spl.C.C. No.54/2014 for the purpose of
satisfying itself as to correctness, legality or
propriety of the impugned Order dated: 11.03.2014
leading to arrest and police remand of the
petitioner.
This Crl.R.P. having been heard and reserved
for Orders, this day the Court pronounced the
following:
Date of Reserving the Order : 27.06.2014
Date of Pronouncement of Order: 11.07.2014
ORDER
This petition is directed against the order passed by the learned City Civil and Sessions Judge (Special Judge), CBI cases, Bangalore granting permission to the CBI - the respondent herein for custodial interrogation of the petitioner for 7 days.
2. The facts reveal that the petitioner who is arraigned as 4th accused was prosecuted for the charge under Section 120B read with Sections 409, 420 IPC and under Sections 13(2) read with 3 Crl.RP 193/14 Section 13(1)(c)(d) of Prevention of Corruption Act, (hereinafter referred to as 'the Act' for short) and charge-sheet against him was filed by the respondent before the Court below and is numbered as Spl.C.C. No.54/2014. A notice was issued to the petitioner under Section 160 Cr.P.C for his appearance before the respondent on 20.09.2013. He did not appear on the ground that he was on medical treatment. Later, his whereabouts were not known and hence, the respondent filed an application before the Trial Court for issuance of non-bailable warrant. Anyhow, the said order was complied at the direction of this Court asking him to appear before the CBI on 10.02.2014 with liberty to the petitioner to seek necessary orders from CBI Court, in case if he was to be arrested. On appearance of the petitioner, he was interrogated by I.O. and as he is said to have given an evasive reply withholding the facts, the CBI sought for 4 Crl.RP 193/14 the custodial interrogation and the petition was filed. The request of the respondent was objected on the ground that once the charge-sheet is filed, the custodial interrogation by the police is not permitted and in addition, the petitioner submitted his detailed objections putting forth other grounds. Anyhow, the Trial Court after hearing the counsel for the parties allowed the petition of the respondent and entrusted the custody of the petitioner to the CBI for a period of 7 years from the date of order till 17.03.2014. It is this order of the learned Special Judge, which is assailed in this revision.
3. I have heard Sri. Dil Jit Singh Ahluwalia, learned Counsel for the petitioner and also Sri. C.H. Jadhav, learned Senior Counsel for the respondent.
4. Learned Counsel for the petitioner submitted that once the charge-sheet is filed and cognizance is taken by the Court, the accused 5 Crl.RP 193/14 cannot be entrusted to the police custody for interrogation and the learned Special Judge has committed an error in passing the impugned order despite the closure of investigation and filing of the charge-sheet. He submits that the learned Special Judge has committed an error in appreciating the provision of Section 167(2) and 309(2) Cr.P.C. and wrongly applied the principle laid down by the Apex Court in the decisions cited. It is his further submission that when the Special Judge has no jurisdiction to entertain the application for custodial interrogation subsequent to filing of the charge-sheet, the order of learned Special Judge is patently illegal and requires to be quashed in this revision and that the said order is an intermediate order which can be revised by this Court in revision.
On the other hand, learned Senior Counsel for CBI submits that as the order that has been passed is an interlocutory order, the revision under 6 Crl.RP 193/14 Section 397 Cr.P.C. is barred and therefore, questioned the maintainability of this revision petition. Furthermore, he submits that during the investigation, when the petitioner was not available for interrogation, in law, the police custody for interrogation can be permitted despite filing of the charge-sheet. He submits that this Court and also the Apex Court have permitted the custodial interrogation and that the impugned order is therefore just and proper.
5. The respondent has challenged the maintainability of this revision on the ground that the order impugned is an interlocutory order and therefore, he submits that under Section 397(2) Cr.P.C., this revision cannot be maintained. Under the aforesaid provision, this Court in a revision cannot exercise its powers in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. Therefore, as the question raised goes to the root 7 Crl.RP 193/14 of the matter, the maintainability of this revision has to be considered at the first instance.
6. As to what is interlocutory order is not defined in the criminal procedure code. Therefore, the question as to whether the order of remand passed by the trial Court is an interlocutory order or otherwise needs consideration. The perusal of the provisions of Criminal Procedure Code, 1973, reveals an order relating to remand of the accused to the custody, both under Section 167(2) Cr.P.C. and under Section 309(2) Cr.P.C. During the pendency of an investigation, the Magistrate having jurisdiction, wherein the accused is ordered to be detained in the custody, can authorize detention of an accused in the custody of the Police for a period not exceeding 15 days, if he satisfied that adequate grounds exist for doing so. If he does not find 8 Crl.RP 193/14 any such grounds, the accused has to be detained in the judicial custody.
But, once the charge-sheet is filed, so far as an order of remand is concerned, it is only Section 309(2) Cr.P.C. under which a Court after taking cognizance of an offence may adjourn the case from time to time and may by warrant remand the accused, if he is in the custody. An order of remand under this provision cannot be beyond 15 days. So, under the aforesaid provisions, an order of remand is of two types; (1) In the Police custody for interrogation and (2) In the judicial custody. A Magistrate before whom the enquiry is pending and wherein the charge-sheet is not filed, has got both the powers of entrusting the accused either to the Police Custody or to detain him in the judicial custody, whereas the Court in which trial is pending after the cognizance is taken on the basis of the charge-sheet filed is said to have the powers only to remand the accused to the 9 Crl.RP 193/14 judicial custody. The reason would be when the investigation is over, the question of entrusting the accused to the Police custody does not arise as the charge-sheet has been filed after completion of the investigation. But, anyhow if an order of remand is looked into in a wider sense, it is of two types as aforesaid i.e., (1) Entrusting the accused to the Police custody or (2) To the judicial custody.
7. Now, as could be seen from the facts of the case on hand, the charge-sheet was filed and it is only after the charge-sheet the trial Court entrusted the petitioner herein [4th accused] to the Police custody and therefore, this order is being challenged on the ground that it is patently illegal and the trial Judge has no jurisdiction to entertain any application for Police custody. 10 Crl.RP 193/14
8. On the question as to whether the order is an interlocutory order, reliance is placed by learned counsel for the petitioner on the decision of the Apex Court reported in (2013)7 Supreme Court Cases 789 [Mohith alias Sonu and another Vs. State of Uttar Pradesh and another]; wherein, the facts reveal that an application was filed under Section 319 Cr.P.C., summoning the appellants therein, which was rejected for the second time, as there was insufficient evidence against the appellants, the High Court had set aside the Order under Section 482 Cr.P.C. and the Order of the High Court was challenged in an appeal before the Hon'ble Apex Court. It was the contention of the appellants therein that; (1) the order passed by the trial Court under Section 319 Cr.P.C. refusing to issue summons ought to have been challenged before the High Court invoking its revisional jurisdiction under Section 397 or 401 Cr.P.C. and not under Section 482 Cr.P.C. and (2) the High 11 Crl.RP 193/14 Court while exercising its inherent jurisdiction under Section 482 Cr.P.C. ought to have given an opportunity of hearing to the appellants before the order was to set aside. The Apex Court allowed the appeal and held;
"An order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) Cr.P.C.".
So as could be seen from the principles laid-down by the Apex Court, the question as required to be considered in the case on hand is "whether the order impugned affects the rights of the accused or decides certain rights of the parties and if there is a decision of the rights of the parties or the order affects the rights of an accused?", then it cannot be an interlocutory order so as to 12 Crl.RP 193/14 bar a revision to the High Court under Section 397(2) Cr.P.C. It is only an order of the aforesaid nature affecting the rights of the accused or deciding certain rights of the parties that could be revised in a revision under Section 397 Cr.P.C. Anyhow, as held by the Apex Court, an order passed by the Court under Section 319 Cr.P.C. was not held to be an interlocutory order and the Apex Court was of the opinion that the rights of an accused are affected, a revision could be maintained under Section 397 Cr.P.C. Though the principle laid-down by the Apex Court is in the context of an order under Section 319 Cr.P.C., the principle aforesaid will be applicable to the facts on hand as well. Now it is necessary for this Court to decide as to whether the rights of the petitioner are affected under the impugned order or not and whether there is any decision of the rights of the parties under the impugned order.
13 Crl.RP 193/14
9. Learned counsel has placed reliance on the following decisions of the Apex Court;
(1) (2009)7 Supreme Court Cases 526 [Jeewan Kumar Raut and another Vs. Central Bureau of Investigation].
(2) (2009)6 Supreme Court Cases 332
[Mithabhai Pashabhai Patel and
others Vs. State of Gujarat].
(3) (2007)8 Supreme Court Cases 770
[Dinesh Dalmia Vs. CBI].
In the decision at Sl. No.1, it has been observed;
"34. A distinction between a remand of an accused at pre-cognizance stage vis-à-vis the post-cognizance stage is apparent. Whereas the remand at a pre- cognizance stage is to be made in terms of sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance stage can be effected only in terms of sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by this Court 14 Crl.RP 193/14 recently in Mithabhai Pashabhai Patel v. State of Gujarat".
In the decision at Sl. No.2, it has been observed;
"17. The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once the charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under sub-section (2) of Section 167 of the Code".
In the decision at Sl. No.3, it has been observed;
"29. The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub- section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub- section (2) of Section 309 of the Code 15 Crl.RP 193/14 would be attracted only after cognizance has been taken".
and it has been further observed;
"39. The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under sub-section (2) of Section 173 and further investigation contemplated under sub-section (8) thereof. Whereas only when a charge- sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of sub-section (8) of Section 173 of the Code".
So, as held by the Apex Court in the aforesaid decisions, a person cannot be entrusted to Police custody in case if the charge-sheet is filed and 16 Crl.RP 193/14 cognizance is taken. Admittedly, a charge-sheet was filed against the petitioner and the trial Court had taken cognizance. So, according to learned counsel for the petitioner, when the charge-sheet was filed, the custody of the petitioner could not have been entrusted to the CBI for 7 days under the impugned order and it is necessary for this Court to decide as to whether this order substantially affects the rights of the petitioner or decides certain rights of the parties.
10. If there is any decision on the aforesaid aspects, then, certainly it is not an interlocutory order and if it is not so, then the order impugned would be an interlocutory order and there is a bar for a revision of such an order under section 397(2) Cr.P.C.
11. What actually was done on the basis of the impugned order was that the custody of the 17 Crl.RP 193/14 petitioner was given to the CBI and it appears that they have collected some evidence against the petitioner through interrogation while the petitioner was in their custody. So, according to the petitioner, this process of collecting the evidence through custodial interrogation does not arise for the reason that a charge-sheet was filed and the cognizance was taken.
12. Though the order impugned in this revision appears to be illegal, the further question is as to whether it has affected the rights of the petitioner or has decided his rights. If for some reason, the petitioner was not entrusted to the Police custody, when he appeared before the Court after the cognizance was taken, the option open to the Court was, to remand him to the judicial custody and if an application is filed for bail, the trial Court ought to have considered the said application and to pass an appropriate order. This would be the consequence 18 Crl.RP 193/14 in case if there was no entrustment of the petitioner to the custody of the CBI for interrogation. So, what virtually was done under the order impugned was, collection of evidence against the petitioner. Anyhow, this evidence, which is collected will be considered only during the trial. The question as to whether such evidence collected under such custody after filing of the charge-sheet, is admissible or not is a matter for consideration for the trial Court, only during the trial and not at this stage. The trial Court has to look into the provisions of the Evidence Act to find out as to whether the evidence collected under the impugned order is admissible or not. Therefore, in my opinion, as this evidence, said to be collected, at present does not affect the rights of the petitioner and as the question of admissibility will be considered later by the Court and as the petitioner has a right to oppose the admission of 19 Crl.RP 193/14 such evidence, I do not think that the trial Court has decided any of the rights of the parties or that the impugned order affects the rights of the petitioner.
13. Learned Senior counsel for the respondent has placed reliance on the decision of the Apex Court reported in (2004)5 Supreme Court Cases 729 [State represented by Inspector of Police and others Vs. N.M.T. Joy Immaculate]; wherein, the larger bench of the Apex Court took into consideration an order of remand, which was challenged in a revision filed under Section 397 Cr.P.C. The facts would reveal that during the pendency of the investigation the respondent therein was entrusted to the Police custody for interrogation and some evidence was collected by the Police on the basis of the voluntary statement of the respondent therein. The High Court had held that this order was illegal and set aside the order in the revision and the said Judgment and 20 Crl.RP 193/14 Order of the High Court was challenged before the Apex Court. It was held by the Apex Court that if an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. It also held that a remand order cannot affect progress of the trial or its decision in any manner. Ultimately, the Apex Court referring to the decision of the Madhu Limaye case [AIR 1978 SC 47] held;
"The order is therefore a pure and simple interlocutory order and in view of the bar created under Section 397(2) Cr.P.C., a revision against the said order is not maintainable."
It further held;
"The High Court, therefore, erred in entertaining the revision against the order dated 06.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day."21 Crl.RP 193/14
So, as held by the Apex Court in the aforesaid decision, an order of remand is an interlocutory order and such an order cannot be challenged in a revision under Section 397 Cr.P.C.
14. So far as the decision relied upon by learned counsel for the petitioner in Mohit alias Sonu and another, referred to supra, it was a Division Bench Judgment of the Apex Court, whereas the decision relied upon by learned Senior counsel for the respondent is a Larger Bench of the Apex Court. The only distinction that is made by the petitioner would be that in the Larger Bench Judgment of the Apex Court, the entrustment of the Police custody was during the investigation, whereas under the impugned order, the entrustment of the Police custody is subsequent to the investigation and after the cognizance was taken. But, the Apex Court in the Larger Bench Judgment referred to supra, also took into consideration the fact that the order entrusting of the Police 22 Crl.RP 193/14 custody is illegal, but was of the opinion that the revision even against such an illegal order cannot be maintained under Section 397 Cr.P.C.
15. On the above aspect, so far as the illegality of the order of remand is concerned, they can be classified in 2 categories; (1) Ex facie or patently illegal and (2) illegal within the scope of the provision. However, it is the extent of illegality that makes a difference between an order that was challenged before the Apex Court in the decision of State and others Vs. N.M.T. Joy Immaculate and the order in this revision. Though the order impugned in this revision is patently illegal, despite the seriousness or extent of the illegality that could be attributed to the impugned Order, that does not change the nature of the order as an interlocutory order. Therefore, I am of the opinion that the order impugned in this revision is an interlocutory order and it cannot be questioned in 23 Crl.RP 193/14 a revision under Section 397 Cr.P.C. Even otherwise, it is relevant to note that under the impugned order, what has been done by the trial Court is that it enabled the respondent-CBI to collect some evidence against the petitioner and admissibility of this evidence can be assessed by the trial Court after conclusion of the trial and the Court can take a decision at a later stage. The Larger Bench decision of the Apex Court is squarely applicable to the facts of this case. The rights of the parties are not decided. The order impugned does not affects the rights of the petitioner and therefore, I am of the opinion that this revision has to fail on all the Counts.
16. Lastly, learned counsel for the petitioner contended that the impugned order is an illegal order and sought for grant of bail to the petitioner. The impugned order is an order entrusting the custody of the petitioner-accused to the respondent-CBI for 7 days i.e., from 24 Crl.RP 193/14 11.03.2014 to 17.03.2014 at 5 p.m. and this revision though filed on 17.03.2014, came up for admission on 19.03.2014. In fact, as on the date this Court issued notice of the petition, the period of CBI custody for 7 [seven] days was over and the petition was infructuous. That apart, after completion of the CBI custody, the petitioner is said to be in judicial custody and therefore, I do not find any grounds to consider grant of bail as well.
Consequently, the revision petition fails and it is accordingly dismissed. I.A. No.1/2014 filed for direction and bail does not survive for consideration and it is accordingly rejected.
Sd/-
JUDGE *bgn/Ksm*