Delhi High Court
Sudhir Nathani vs Central Bureau Of Investigation on 24 July, 2003
Equivalent citations: 2003VIIIAD(DELHI)248, 108(2003)DLT108, 2004(72)DRJ116, 2003(3)JCC1883
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. This petition ruminates significant questions of law as it challenges the legality of impugned order dated 8.7.2003 passed by Sh.Prem Kumar, learned Special Judge whereby bail application of the petitioner was dismissed on his appearing in the court in response to summons for appearance issued while taking cognizance in a warrant case and was sent to judicial custody in spite of the fact that throughout investigation and till the filing of charge sheet under Section 173 Cr.P.C the petitioner was neither arrested nor brought before the court nor was forwarded in custody under Section 170 Cr.P.C.
2. Following proposition of law emerges for determination:-
"Whether the court after having exercised discretion to issue summons while taking cognizance under Section 204 Cr.P.C in a warrant case can enter into the domain of nature of offence other than those for which there is prohibition for granting bail under the provisions of Section 437 Cr.P.C and thereby send the accused to judicial custody by rejecting the bail application?"
3. The facts of the case giving rise to the aforesaid propositions need to be recapitulated in brief:-
4. Petitioner is an employee with M/s . P.S.International, a private concern. It is alleged that he entered into a criminal conspiracy with Custom Inspector Zaki Anwar and with Mr. Ram Harchandani, proprietor of Rohit International and Mr. Ram Jaiswal, partner of M/s .P.S International to cheat Department of Customs resulting in loss to the Customs to the tune of about Rs. 58 lakhs by allowing these private concerns to export rags as premium garments under the `duty draw back scheme claim' on the basis of forged documents and connived with these private parties and official of the Customs Department for clearing their consignment to the parties in UAE and Hong Kong.
5. The matter was investigated by the Department of Revenue Intelligence and a criminal case was filed before learned ACMM against many persons including the petitioner. The petitioner remained in custody for about 125 days in the said case. Parallel investigation was also conducted by CBI on account of their criminal liability as to forging of documents the offences punishable under Section 120B I.P.C read with sections 420, 468, 471, 511 I.P.C and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988. After completion of investigation, the CBI filed the chargesheet against the petitioner in the court of learned Special Judge. However, during the investigation by the CBI, the petitioner was never arrested though he joined the investigation regularly. Admittedly the offences were non-bailable and case was a warrant case.
6. Adverse comments were made on the conduct of the CBI for not arresting the accused during investigation and without forwarding him under custody as prescribed under Section 170 Cr.P.C and against Public Prosecutor making concession to the grant of bail by way of following observations:-
"Although CBI did not care to arrest any of the accused persons during interrogation and even in the Court Public Prosecutor of CBI made complete concession but that by itself cannot be a ground to grant bail, if otherwise, considering the important considerations like nature of the offence, its gravity, role of the accused persons, its impact on the society and on the economy of the country, the risk to fair trial by winning witnesses and the possibility of not facing trial One may say that if the arrest has not taken place during investigation, the bail should generally be granted. That is, however, is not a universal rule. Particularly in CBI cases it has been found that CBI does not follow any commonly accepted norms in case of pre-trial arrest of accused persons. The discretion is being exercised arbitrarily. It has been found that the CBI ignores the provisions of Section 170 Cr.P.C which enjoins the officer in charge to forward the accused under custody to a Magistrate, if there is sufficient evidence or reasonable ground of the involvement of the accused. Thus, the court has to apply its judicial mind considering the aforesaid factors to see whether a case for bail is made out or not."
7. Admittedly the learned Special Judge while taking the cognizance of the offence under Section 190 Cr.P.C exercised the discretion of issuing summons for appearance instead of warrants as provided in Section 204 Cr.P.C. Section 204 Cr.P.C vests discretion in the Court to issue summons instead of warrants in a warrant case while taking cognizance. Section 204 Cr.P.C provides as under:_ 204"Issue of process:- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
8. Pursuant to these summon, petitioner appeared and moved an application for grant of bail on account of offences being non-bailable though according to him he was not required to do so because the court once having exercised the option of issuing summons instead of warrants had to at the most ask him to furnish bond as per provision of Section 88 Cr.P.C and even otherwise the petitioner should have been granted bail under Section 437 Cr.P.C as the offences were neither punishable with death nor imprisonment for life.
9. After hearing the arguments the learned Special Judge adjourned for 8th July, 2003 for orders on bail application. When the petitioner appeared on 8th July, 2003, the learned Special Judge rejected the bail application and sent him to judicial custoDy.
10. Contention of Mr. D.C.Mathur, learned senior counsel appearing for the petitioner is that once having exercised the discretion of issuing summons in a warrant case under Section 204 Cr.P.C, the Magistrate was not empowered to enter into domain of nature of offences other than those for which there is prohibition for granting bail under the provisions of section 437 Cr.P.C i.e. offences punishable with death or imprisonment for life as Section 437 Cr.P.C puts embargo against grant of bail in these kinds of offences. Section 437 Cr.P.C relates to the provision of grant or refusal of bail in case of non-bailable offences and provides as under:-
"Section 437. When bail may be taken in case of non-bailable offence:-
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, (the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail), or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section(1) the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub-section(1), or sub-section(2), shall record in writing his or its (reasons or special reasons) for so doing.
(5) Any Court which has released a person on bail under sub-section(1), or sub-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custoDy.
(6) If, in any case friable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
11. I am afraid the proposition expounded by Mr. Mathur is not correct. Section 204 Cr.P.C only provides mode of procuring the attendance of the accused while taking the cognizance of the offence. If it is a summons case, Magistrate shall always issue summons. If the Investigating Officer does not arrest the accused in a cognizable and non-bailable offence during investigation and the Officer-in-Charge files the `final report' under section 173 Cr.P.C without forwarding the accused in custody, the court has the discretion to procure his presence either through summons or through warrants. In both the eventualities, the Court may ask the accused to seek bail or accused may on his own move for grant of bail under the provisions of Section 437 Cr.P.C. It the contention of Mr. Mathur is accepted then the very purpose of making certain offences non-bailable will be defeated.
12. Exercise of option by the court under Section 204 Cr.P.C to procure the presence of the accused even through summons in a non-bailable case does not curtail or abridge or take away the powers of the court to consider the question of grant or refusal of bail under the provisions of Section 437 Cr.P.C. Section 204 Cr.P.C does not render the Court empowered to take cognizance functus officio so far its powers to consider the question of grant or refusal of bail on the premise of Section 437 Cr.P.C is concerned.
13. Now comes the question whether Learned Special Judge was justified in rejecting the bail application of the petitioner or not.
14. Supreme Court has laid down the guidelines for grant or refusal of bail under the provisions of Section 437 Cr.P.C in plethora of cases. Some of the significant cases need to be referred in brief. First of such cases is Gurcharan Singh and others v. State AIR 1978 SC 179. Guidelines provided by Supreme Court are as under :-
" Section 437 Cr.P.C provides as to when bail may be taken in case of non-bailable offences. Sub-sec (1) of S. 437 Cr.P.C makes a dichotomy in dealing with non-bailable offences. The first category relates to offences punishable with death or imprisonment for life and the rest are all other non-bailable offences. With regard to the first category, S. 437(1) Cr.P.C imposes a bar to grant of bail by the Court or the officer in charge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are some materials to justify an officer or the court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under S. 437(1), Cr.P.C against granting of bail. On the other hand, if to either the officer in charge of the police station or to the court there appear to be reasonable grounds to believe that the accused has been guilty of such an offence there will be no question of the court or the officer granting bail to him. In all other non-bailable cases, judicial discretion will always be exercised by the court in favor of granting bail subject to sub-section (3) of Section 437, Cr.P.C with regard to imposition of conditions, if necessary. Under sub-section (4) of S. 437, Cr.P.C an officer or a court releasing any person on bail under sub-sec (1) or sub-sec(2) of that section is required to record in writing his or its reasons for so doing. That is to say, law requires that in non-bailable offences punishable with death or imprisonment for life, reasons have to be recorded for releasing a person on bail, clearly disclosing how discretion has been exercised in that behalf."
15. Another significant judgment by the Supreme Court is Babu Singh and Others v. The State of Uttar Pradesh wherein value of personal liberty of an accused or even convict guaranteed by the Constitution was considered to be so fundamental that the Supreme Court held that:-
"Personal liberty deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern from the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of `procedure established by law'. So deprivation of personal freedom, ephemeral or enduring, must be founded on the serious considerations, relevant to the welfare objectives of society, specified in the Constitution."
16. Again view of Supreme Court in Gudikanti Narasimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh is in unanimity with the aforesaid views wherein broad principles governing the grant or refusal of bail were laid down
17. In nutshell, the following principles emerge for grant or refusal of bail under Section 437 Cr.P.C:-
(i) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity;
(ii) Bail should be refused when the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;
(iii) Bail should be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;
(iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and
(v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.
18. On the premise of aforesaid principles, it can safely be said that while considering the application under Section 437 Cr.P.C court cannot be oblivious of firstly the fact that Investigating Officer did not deem it necessary to either arrest the accused during investigation or forward him in custody under Section 170 Cr.P.C while filing the charge sheet under Section 173 Cr.P.C; secondly that the court while taking cognizance did not find the circumstances existing in Section 87 Cr.P.C while procuring the appearance of the accused through warrant of arrest that the accused has either been absconding or is concealing himself and issued summons for him. Ordinarily these circumstances would be favorably disposed in favor of the accused in granting bail unless the magnitude of the offence and punishment therefore is very high and severe and there is likelihood of the accused interfering with witnesses.
19. The allegations against the petitioner are that he was a conduit who passed currency of Rs. 3.25 lac on behalf of the company he was employed with to the public servant through some other person namely Mr. Vinod Gendotra, who is PW. Thus on the tests and the criteria laid down by the Supreme Court for grant or refusal of bail, the petitioner was even otherwise entitled to bail. The learned Special judge has exercised this discretion arbitrarily by ignoring the circumstance of CBI not arresting any of the accused persons during investigation and the court, while taking cognizance, did not issue warrant of arrest apart from the fact that neither was the crime so grave that was to be visited with punishment of extreme severity nor was there any apprehension of course of justice being thwarted by the petitioner nor was there any likelihood of the petitioner interfering with witnesses of the prosecution and denied the bail.. Bail was denied in spite of the fact that that the employer of the petitioner viz the proprietor and partner of two companies were granted bail on the ground that they have not enjoyed the fruits of their illegal acts inasmuch as the duty drawbacks claim amount could not be mis-appropriated as in the meanwhile, DRI had detained the containers and examined the same.
20. It does not stand to reason that the nature of offence committed by the petitioner who was only a conduit and was acting at the behest of his employer and the main beneficiaries were proprietor and partners of the said two companies was of higher gravity and involved much severe punishment than those who were granted the benefit of bail.
21. There was no occasion for using different consideration one for the proprietors and employer and another for their employee so far as the evil of corruption was concerned. The learned Special Judge embarked upon more on the evil of corruption afflicting the public servant and the society than on facts and the legal provisions and the considerations relevant for grant or refusal of bail. Petitioner is not a public servant.
22. No doubt corruption is eating very vitals of the nation, but every case has to be decided in the light of its facts and circumstances and the guidelines laid down by the Supreme Court down the lines and over the yeaRs.
23. Thus, from any aspect either from the legal aspect or on the factual or proprietal aspect we may consider the matter the impugned order is difficult to sustain and has to go.
24. In the result, the petition is allowed, the impugned order is set aside vis-à-vis the petitioner. The petitioner shall now be released on his furnishing a personal bond in the sum of Rs. 50, 000/- with one surety in the like sum to the satisfaction of the learned Special Judge. However, the petitioner shall refrain from tampering with the evidence and shall not leave the country without the permission of learned Special Judge.