Gujarat High Court
Pradeep vs State on 11 February, 2011
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCR.A/2622/2010 34/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2622 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PRADEEP
N SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
IH SYED for
Applicant(s) : 1,
MR PK JANI, LD.PUBLIC PROSECUTOR for
Respondent(s) :
1-2
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 11/02/2011
ORAL
JUDGMENT
Rule.
The formal service of notice of Rule is waived by Mr.P.K. Jani, learned Public Prosecutor for the respondents. The Rule is fixed forthwith.
By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the CrPC'), the petitioner has inter alia prayed for quashing and setting aside the order dated 23rd November 2010 issuing non-bailable warrant against the petitioner below the application at Mark-1 preferred by the respondent No.2 herein as well as the order dated 13th December 2010 below Mark-5 and Mark-10 passed by the Special Judge (ACB), Bhuj in connection with an FIR registered vide I-C.R. No.3/2010 with Rajkot Zone CID Crime Police Station for the offences punishable under Sections 7, 11, 13(1)(2) and 13(2) of the Prevention of Corruption Act, 1988.
The facts of the case in brief are that on 20th February 2008, an FIR came to be lodged vide M.Case No.1 of 2008 with CID (Crime) Rajkot Zone Police Station in respect of the offences punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 475, 484 and 120-B of the Indian Penal Code, pursuant to the direction under Section 156(3) of the CrPC.
3.1 On 06th January 2010, the petitioner came to be arrested in pursuance of the said FIR for the offences punishable under the provisions of the Indian Penal Code only. Thereafter, on 11th January 2010, the petitioner filed an application for bail, which ultimately came to be rejected by the Sessions Judge. On 19th February 2010 the Investigating Agency filed an application for addition of Sections 7, 11 and 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'), which came to be allowed and the proceedings of the said case were transferred from the Court of Chief Judicial Magistrate to the Special Court, Anti Corruption Bureau. On 27th February 2010 the custody of the petitioner was handed over to the Special Court.
3.2 In pursuance of the same, the petitioner on 03rd March 2010 filed an application for bail being Criminal Miscellaneous Application No.604 of 2010 before this Court in respect of the offences punishable under the provisions of the Indian Penal Code only. Thereafter, on 11th March 2010 the Investigating Officer filed an application Exh.73 before the Special Court for recording the statement of the petitioner, which came to be allowed and the petitioner was interrogated. Thereafter, on 23rd March 2010, the petitioner moved an application for temporary bail, which came to be granted on 26th March 2010 by the Special Judge, wherein an application for extension of time was moved, which was rejected by the Special Judge.
3.3 On 31st March 2010, a separate FIR being I-C.R. No.3/2010 came to be lodged against the petitioner for the offences punishable under Sections 7, 11, 13(1)(B) and 13(2) of the Prevention of Corruption Act, 1988 before CID (Crime) Rajkot Zone Police Station. Thereafter, on 01st April 2010 an application was moved by the Investigating Officer for deletion of Sections 7, 11, 13(1)(B) and 13(2) of the Act from the FIR being I-C.R. No.1/ 2008 of Rajkot Zone Police Station. On the same day, Chargesheet No.2/ 2010 came to be filed against the petitioner in the Court of Chief Judicial Magistrate, Kutch-Bhuj, for the offences punishable under Sections 200, 203, 217, 465, 466, 468, 471, 484, 406, 409 and 120-B of the Indian Penal Code. No chargesheet was filed for the offences punishable under Sections 7, 11, 13(1)(B) and 13(2) of the Prevention of Corruption Act, 1988 and on the same day i.e. on 01st April 2010, the Chief Judicial Magistrate issued summons to the petitioner for the offences punishable under the provisions of the Indian Penal Code only.
3.4 The petitioner filed Special Criminal Application No.895 of 2010 before this Court for quashing of the FIR on 11th May 2010. Thereafter, an anticipatory bail application was filed by the petitioner on 15th June 2010, which was disposed of as 'not pressed' by the Special Judge on 20th August 2010. Thereafter, on 03rd September 2010 the petitioner filed Application No.360 of 2010 for default bail before the Sessions Court. Thereafter, on 06th September 2010 the Apex Court in Special Leave Petition (Cri) No.4604 of 2010 granted bail to the petitioner in connection with M.Case No.1 of 2008 for the offences punishable under the Indian Penal Code only and the petitioner was released qua the Indian Penal Code offences only, on 07th September 2010. Thereafter, on 13th September 2010 the default bail application of the petitioner was rejected by the Special Judge. Thereafter, Criminal Miscellaneous Application No.11389 of 2010 filed by the petitioner under Section 482 read with Section 167(2) of the CrPC came to be dismissed on 22nd September 2010. Thereafter, on 25th September 2010 another FIR came to be lodged against the petitioner and others being I-C.R. No.9 of 2010 with the State CID Crime, Rajkot Zone Police Station for the offences punishable under Sections 420, 406 and 120-B of the Indian Penal Code.
3.5 Thereafter, on 18th November 2010, the Investigating Agency filed an application for issuance of non-bailable warrant against the petitioner in the Court of Special Judge, Bhuj, wherein it is mentioned that a summons under Section 160 of the CrPC was issued to the petitioner on 05th October 2010 and is affixed on the door of his residential address mentioned in the default bail application. Thereafter, on 06th October 2010, the Investigating Officer received a communication from the mother of the petitioner stating that her son is not residing at Ahmedabad and so not to make any correspondence at her address. In pursuance of the same, on 13th October 2010 a summons was affixed at the address of the petitioner at Gandhinagar i.e. Plot No.465-A, Behind Gayatri Mandir, Sector-1, Gandhinagar, since his house was closed.
3.6 In pursuance of the same, on 17th November 2010 an application came to be filed before the Special Judge seeking non-bailable warrant against the petitioner, which ultimately came to be granted on 23rd November 2010. In the meantime, the petitioner's advocate agreed that the petitioner will remain present before the Investigating Officer on the next date and, therefore, the date of serving the warrant was kept on 10th December 2010. However, the petitioner did not remain present. Instead the petitioner moved an application for cancellation of non-bailable warrant at Mark-10 on 10th December 2010 and also filed an application at Mark-5 for granting him adjournment, which ultimately came to be rejected vide order dated 13th December 2010. Hence, present petition.
Mr.I.H. Saiyed, learned advocate for the petitioner, has argued at length and submitted that the so-called summons affixed on the house of the petitioner is undated and not even addressed to the petitioner, which is not in consonance with the provisions of Section 160 of the CrPC, which has not been appreciated by the trial Court.
4.1 It is further submitted that the petitioner cannot be arrested for second time in connection with the same offence by way of a separate FIR when he was earlier arrested for the very offence registered vide M.Case No.1 of 2008. It is also submitted that the third FIR has also been lodged against the petitioner and, therefore, he may be granted some time for taking anticipatory bail. It is also submitted that no reasons have been assigned by the trial Court for issuance of the non-bailable warrant against the petitioner.
4.2 It is further submitted that the trial Court ignored the well settled principle of law that the petitioner cannot be declared to be an absconder if he is before the Court of law through his counsel by way of filing writ petitions and Special Leave Petition for exhausting the remedies available to him under the law.
4.3 It is also one of the contentions of Mr.Saiyed that the trial Court ignored the fact while passing the order under challenge that the petitioner is very well before this Court for quashing of the FIR in which the non-bailable warrant is issued. He has further submitted that the intention on the part of the Investigating Agency is mala fide and politically motivated. It is also argued that the Investigating Officer has suppressed material facts from the knowledge of the trial Court that the petitioner was interrogated for the same offence and his statement was also recorded.
4.4 In support of aforesaid submissions Mr.Saiyed has relied upon various decisions of this Court as well as the Apex Court viz. (1) Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in (2007) 12 SCC 1; (2) T.T. Antony v. State of Kerala and others, reported in (2001) 6 SCC 181; (3) State of Haryana and others v. Dinesh Kumar, reported in (2008) 3 SCC 222; and (4) Kunhayammed v. State of Kerala, reported in AIR 2000 SC 2587, and relying upon the same it is prayed that present petition may be allowed.
Mr.P.K. Jani, learned Public Prosecutor, has pointed out that the order under challenge in this petition passed by the trial Court is just and proper. The trial Court has after appreciating the facts and circumstances of the case and the evidence on record rejected the applications at Marks-5 and 10 moved by the petitioner. It is submitted that the trial Court has assigned cogent and convincing reasons for arriving at the impugned conclusion. It is submitted that the summons were duly served upon the petitioner with date and his name reflected on them; that there is no mala fide intention on the part of the Investigating Agency nor the same is politically motivated; that the Investigating Officer has not suppressed any material facts. In support of his submissions, Mr.P.K. Jani has relied upon the decision of the Apex Court in the case of T.T. Antony (supra) to the extent it helps the prosecution. In view of aforesaid it is prayed that present petition may be dismissed.
Before proceeding with the matter, it is required to be noted that when present petition was listed for hearing on 07th February 2011, this Court had suggested the learned advocate for the petitioner to partly allow the present petition and to remand the matter and the petitioner was asked to remain present before the trial Court on a particular date. However, since Mr.P.K. Jani, learned Public Prosecutor, was not present, the matter was adjourned to 09th February 2011. On 09th February 2011, the matter was argued at length by the learned advocate for the petitioner and the same was treated as part-heard and adjourned to 10th February 2011. Inspite of the same, the learned advocate for the petitioner Mr.I.H. Saiyed has chosen not to appear before this Court on 10th February 2011 and since Mr.P.K. Jani, learned Public Prosecutor was present, he had argued the matter. Thus, the conduct on the part of the petitioner is required to be viewed very seriously.
Having considered the contentions raised by the learned advocates for the respective parties, averments made in the petition and the documentary evidence produced on record, it transpires that when the question as to cancellation of non-bailable warrant is raised, the first reaction of the Court is to see that an accused is supposed to cooperate with the Court as well as the Investigating Agency and, therefore, this Court had suggested, as aforesaid, to the learned advocate for the petitioner to remand the matter by partly allowing the same and directing the petitioner to remain present before the trial Court, which was declined by the learned advocate for the petitioner. Therefore, prima facie it seems that the petitioner is trying to while away the time and also trying to overreach the process of the Court.
7.1 So far as the contention of the petitioner that he was rearrested for the very offence is concerned, it is required to be noted that the petitioner was arrested on 06th January 2011 for the offence punishable under the provisions of the Indian Penal Code in pursuance of the FIR registered vide M.Case No.1 of 2008. It is required to be noted that thereafter the Investigating Agency moved an application for addition of provisions of the Prevention of Corruption Act, 1988 on 19th February 2010. Thus, the arrest of the petitioner was qua the offence under the Indian Penal Code only i.e. qua the FIR being I-C.R. No.1 of 2008. Thereafter, the second FIR being I-C.R. No.3 of 2010 came to be lodged against the petitioner on 31st March 2010 and the Investigating Agency also prayed for deletion of provisions of Prevention of Corruption Act from the FIR being M.Case No.1 of 2008. Further, chargesheet No.2 of 2010 in connection with FIR being M.Case No.1 of 2008 came to be submitted only qua the offences punishable under the provisions of the Indian Penal Code only. It is required to be noted that no chargesheet has been submitted qua the offences punishable under the provisions of the Prevention of Corruption Act. It is required to be noted that the second FIR has been filed against the petitioner in respect of the evidence collected during the course of investigation of the first FIR against the petitioner. Thus, it transpires that the petitioner was arrested on 06th January 2010 only qua the offences punishable under the provisions of the Indian Penal Code. Here it would be beneficial to reproduce the decision of this Court (Coram : R.H. Shukla, J) rendered on 28th October 2010 in Criminal Miscellaneous Application No.11389 of 2010 preferred by the petitioner herein, which is as under :
"The present application has been filed by the applicant under sec. 167(2) r/w sec. 482 of Criminal Procedure Code for grant of default bail challenging the impugned judgment and order passed by the learned Special (ACB) Judge, Bhuj, Kutch in Criminal Misc. Application No. 360 of 2010 dated 13.9.2010 rejecting such application for grant of default bail under sec. 167(2) of CrPC on the grounds set out in detail in the Memo of Application.
2. Learned Sr. Counsel Mr. Raju for the applicant referred to the papers and the grounds and submitted that the applicant-accused was arrested on 6.1.2010, was produced before the Magistrate on 6.7.2010 and he has been arrested in connection with M. Case No. 1/2008 registered with CID Crime, Rajkot Zone, Bhuj, for the alleged offences under sec. 200, 203, 217, 465, 468, 471, 472, 474, 475, 406, 409 and 120B of IPC. Thereafter a report was submitted for adding offences under the Prevention of Corruption Act (hereinafter referred to as 'the PC Act') and thereafter the said report for adding the offences under the PC Act was withdrawn vide application dated 1.4.2010. Thereafter, the present FIR being C.R. No. I-3/2010 registered with CID (Crime), Rajkot Zone, came to be filed for offences under sec. 7, 11, 13(1)(b) & 13(2) of the PC Act.
3. Learned Sr. Counsel Mr. Raju submitted that, though a separate FIR has been filed subsequently, in fact, the applicant was already in the custody and the report was also made for adding offences under the PC Act and therefore he would be deemed to have been in the custody even in respect of the offences under the PC Act for which a separate FIR has been filed.
4. Learned Sr. Counsel Mr. Raju referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State of Maharashtra v. Bharati Chandmal Varma (Mrs.), reported in (2002) 2 SCC 121, in support of his submission and submitted that in fact MCOC Act was invoked and still the period was not reckoned for the purpose of bail under sec. 167(2) of CrPC. He, therefore, submitted that the applicant could be deemed to be in the custody in respect of the offences under the PC Act for which a separate FIR is filed and since he has been in custody beyond the period prescribed by law, he should be released on bail.
5. Learned Sr. Counsel Mr. Raju submitted that the second FIR is the same referring to the similar allegations for which a report for adding charges for offences under the PC Act was made. He pointedly referred to this aspect and submitted that though a separate FIR could be filed if it was a separate transaction, but in the facts of the present case, it would not be justified and therefore in any case when the remand was granted for these very charges under the PC Act were also considered and after the custodial interrogation when he has been remanded to judicial custody for all the offences and therefore the second FIR being C.R. No. I-3/2010 for the alleged offences under the PC Act is misconceived and treating the applicant-accused deemed to have been in the custody and having failed to file the charge sheet for these offences under FIR No. C.R. No. I-3/2010 default bail under sec. 167(2) of CrPC may be granted.
6. Learned Sr. Counsel Mr. Raju submitted that as the charge sheet is not filed within the stipulated period, the applicant is entitled to default bail. He submitted that it is an indefeasible right of the accused to be released on bail after the expiry of such period prescribed under sec. 167(2) of CrPC, to which he referred in detail.
7. Learned Sr. Counsel Mr. Raju referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, reported in (2001) 5 SCC 453, and submitted that it is an indefeasible right of the accused and default bail has to be granted once the charge sheet is not filed within the stipulated period. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2008) 3 SCC 222 in the case of State of Haryana and ors. v. Dinesh Kumar, and referring to the observations in Para 21, he tried to emphasize the distinction between the 'arrest' and the 'custody' and submitted that the applicant accused may be deemed to be in the custody even in respect of the offences under the PC Act in respect of C.R. No. I-3/2010.
8. Therefore, in substance, Learned Sr. Counsel Mr. Raju emphasized that even though the applicant is on bail in connection with alleged offences under sec.200, 203, 217 etc. of IPC in connection with M. Case No. 1/2008, he should be treated as in custody or deemed custody for the FIR which has been filed subsequently being C.R. No. I-3/2010 for the offences under the PC Act and as the charge sheet has not been filed in connection with the subsequent FIR being C.R. No. I-3/2010 within a period of 60 days, default bail in exercise of discretion under sec. 167(2) of CrPC should be granted.
9. Mr. PK Jani, learned Public Prosecutor, referred to the FIR and also referred to the arrest memo, which is produced at page 20 of the paper-book. and submitted that as it is evident from the arrest memo, the applicant has been arrested in connection with the alleged offences under the IPC in connection with M. Case No. 1/2008. Learned Public Prosecutor Mr. Jani submitted that it is required to be mentioned that it was in respect of offences under IPC only. He pointedly referred to the sequence of events and also the affidavit filed on behalf of the respondent with the details enclosed produced on record and submitted that as stated in this, an application was made to add offences under the PC Act on 19.2.2010 which came to be withdrawn as per the application dated 1.4.2010 (Annexure-B). Learned Public Prosecutor Mr. Jani submitted that an application for bail in the meantime was preferred by the applicant before the Sessions Court and thereafter an application for bail was preferred before the High Court being Criminal Misc. Application No. 604 of 2010 which came to be rejected vide order dated 3.3.2010. The said application was with regard to grant of bail for the alleged offences under the IPC in connection with M. Case No. 1/2008 registered with CID Crime, Rajkot Zone. Thereafter, the petitioner again moved an application under sec. 439 of CrPC for grant of regular bail which came to be rejected on 30.6.2010 against which he preferred an application before the Hon'ble Apex Court. Learned Public Prosecutor Mr. Jani submitted that pursuant to the order of the Hon'ble Apex Court, the chief Judicial Magistrate, Bhuj, as per the report produced at page 188, released the applicant on bail which he pointedly referred and submitted that it was with regard to offences under sec. 200, 203, 216, 465, 468, 471, 472, 474, 475, 406, 409, 120B of IPC in connection with M. Case No. 1/2008.
10. Learned Public Prosecutor Mr. Jani also referred to the papers and submitted that in fact, in the meanwhile, the applicant applied for temporary bail and thereafter the applicant himself had moved an application for anticipatory bail under sec. 438 of CrPC in connection with FIR being C.R. No. 3/2010 registered with CID (Crime), Rajkot Zone, which was not pressed.
11. Learned Public Prosecutor Mr. Jani has also referred to the details with regard to this and submitted that when he has withdrawn the application for anticipatory bail, the applicant has claimed that he was not arrested and therefore he moved the application for anticipatory bail. He further submitted that, admittedly, the applicant has been released on bail as per the order of the Hon'ble Apex Court in respect of the alleged offences under IPC in M. Case No. 1/2008. Learned Public Prosecutor Mr. Jani, therefore, submitted that, admittedly, the applicant is not in custody and therefore there is no question of grant of any default bail under sec. 167(2) of CrPC.
12. Learned Public Prosecutor Mr. Jani referred to the provisions of sec. 167(2) of CrPC which reads as under:
"The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that---
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding--
(i) xxxx
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter."
He, therefore, submitted that this provision will come into play provided the applicant accused is in custody or in jail who can resort to this provision for grant of bail as the legislature has provided this safeguard laying down the time-limit for the investigating agency and also considering the right of the accused that he may not be detained for long period.
13. Therefore, he submitted that the submissions with regard to deemed custody are without any basis and there appears to be some misconception. Learned Public Prosecutor Mr. Jani also submitted referring to the details as to the exact nature of allegations made in the FIR filed subsequently being C.R. No. I-3/2010. Learned Public Prosecutor Mr. Jani submitted that separate FIRs could be filed for separate offences like under the PC Act which is a separate and independent offence. Learned Public Prosecutor Mr. Jani submitted that may be in respect of the alleged deeds or irregularity committed by the accused it may have different allegations for separate offences for which separate FIR is not prohibited under the law.
14. Learned Public Prosecutor Mr. Jani further submitted that if these submissions of the applicant were to be accepted, it would amount to quashing the FIR at this stage, which is not permissible inasmuch as the petitioner has the option to have a remedy for quashing the subsequent FIR being C.R. No. I-3/2010 filed for the offences under the PC Act. However, once having failed to get anticipatory bail, he has not carried the matter before the higher forum like the High Court, has not filed the proceedings for quashing the separate FIR being C.R. No. I-3/2010, has claimed the default bail on the wrong assumption or presumption that he should be deemed to be in custody in connection with the subsequent FIR being C.R. No. I-3/2010 for the alleged offences under the PC Act, though, in fact, he is already on bail, and he is not in the custody. He submitted that there is no provision for deemed custody which is sought to be canvassed and therefore when the applicant is not at all in the custody, the provision sec. 167(2) would not be attracted and the present application deserves to be rejected.
15. In rejoinder, learned Sr. Counsel Mr. Raju referred to the papers and submitted that if the person is arrested, he has to be produced before the Magistrate within 24 hrs. and thereafter he would be granted regular bail or default bail. He submitted that as the applicant accused was arrested earlier and regular bail has been granted, the charges for the offences are the same for which even a report was made and subsequently a separate FIR has been filed and, therefore, he has to be treated as deemed to have been in custody even for the offences under the PC Act in C.R. No. I-3/2010, and as there is no charge sheet filed within the stipulated period of 60 days, the petitioner would be entitled to be released on bail under sec. 167(2) of CrPC as it is an indefeasible right.
16. In view of rival submissions, it is required to be considered whether the present application can e entertained or not.
17. As it transpires from the facts, admittedly, the applicant has been released pursuant to the order of the Hon'ble Apex Court in SLP (Cri.) No. 6166 of 2010 vide order dated 16.9.2010 and he has been enlarged on bail for which the report is also produced. It clearly refers to the fact it was in connection with M. Case No. 1/2008 for the alleged offences under the IPC. Further, even in an application for bail being Criminal Misc. Application No. 4604 of 2010 after charge sheet before the High Court, the application itself makes it clear that it was preferred under sec. 439 for bail in connection with M. Case No. 1/2008 registered with CID Crime, for the alleged offences under sec. 200, 203, 217, 465, 468, 471 etc. of IPC. Admittedly, the applicant has not been in custody. Admittedly, the applicant had preferred an application for anticipatory bail being Criminal Misc. Application No. 237 of 2010 before the Special Judge (ACB), Kutch at Bhuj under sec. 438 in connection with C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, for the alleged offences under the PC Act, which has been withdrawn by him.
18. Therefore, as provided in sec. 167(2), which is known as default bail, it presupposes that the person has to be in custody. This provision has been made to safeguard the right of the accused that he is not detained beyond a prescribed period obliging the investigating agency to complete the investigation and file charge sheet within the stipulated period as provided in Sec. 167(2). On a closer examination of this provision, which has been referred to by both the sides, the proviso makes it clear that the Magistrate may authorise the detention of the accused otherwise than in the custody of police, that is, judicial custody, beyond the period on the ground mentioned therein. But he wording clearly suggests "no magistrate shall authorize detention of the accused person in custody under this chapter for a total period exceeding
(i) xxxxxx
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter." (emphasis supplied) This itself would suggest that the person has to be in judicial custody before this provision could be invoked.
19. The submissions made by learned Sr. Counsel Mr. Raju referring to the facts in the present case with much emphasis that the applicant should be deemed to have been in custody in respect of the subsequent FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, for the alleged offences under the PC Act is a novel argument without any basis or any provision. Further, if the submissions were to be accepted, at the most, initially when the report was made for adding offences under the PC Act in M. Case No. 1/2008 and thereafter it was withdrawn, and separate FIR has been filed being C.R. No. I-3/2010 for the alleged offences under the PC Act, it may lead to a recourse for appropriate remedy as may be advised. Further, the proceedings for quashing such FIR is a different aspect which the petitioner may have the remedy or he could have raised objection at that time when the report for addition of offences under the PC Act in M. case No. 1/2008 was sought to be withdrawn. The same has not been challenged.
20. The conduct of the applicant is also required to be appreciated that thereafter when he has filed regular bail application before the High Court as well as before the Hon'ble Apex Court, he has confined the application for bail under sec. 439(2) for the offences under IPC in connection with M. Case No. 1/2008 and not a whisper has been made with regard to this aspect. Even thereafter he has filed anticipatory bail application under sec. 438 before the Special Judge being Criminal Misc. Application No. 237 of 2010 in connection with the subsequent FIR being C.R. No. 3/2010 registered with CID Crime, Rajkot Zone, which has been withdrawn. If there was any misconception, he could have taken further recourse as may be advised for anticipatory bail and in fact it would suggest that the applicant petitioner has also admitted about the separate FIR for the alleged offences under the PC Act against him.
21. Therefore, when he could not either pursue or could not easily convince the court for grant of anticipatory bail, it was withdrawn, and the matter rested there. Now, in the guise of such application for default bail under sec. 167(2), it cannot be permitted to be argued that he is deemed to have been in custody in connection with the separate FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone when he was in custody for the offences under IPC in connection with M. Case No. 1/2008. This deeming fiction as sought to be canvassed is not permitted in law and there is no such provision shown. The reference made to the judgment of the Hon'ble Apex Court in the case of State of Maharashtra v. Bharati Chandmal Varma (Mrs.) @ Ayesha Khan (supra) stands on a different footing and it will not have application to the facts of the present case as there it was a case with regard to calculation of the period for the purpose of default bail under sec. 167(2) after the MCOCA was invoked and observations have been made in that context, but there it was not the fact that the petitioner was not in the custody. In the facts of the present case, the petitioner is not at all in the custody and therefore the provisions of sec. 167(2) will not have any application.
22. While discussing the provisions of sec. 438 & 429 of CrPC, in its judgment in the case of Sunita Devi v. State of Bihar and anr. reported in AIR 2005 SC 498, the Hon'ble Apex Court has refeferred to this aspect of custody as to when the person can invoke the provisions of sec. 438 and 439. It is also made clear that once the person is in custody provisions of sec. 439 would apply. It has been specifically observd in Para 8 that, "It is clear from a bare reading of the provisions that for making an application in terms of Seoction 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".
Therefore, as it has been observed anticipatory bail is granted in anticipation of arrest in non-balilable cases, whereas sec. 439 will come into play when the person is in custody. Further, it has been observed in Para 16, "Since the expression "custody" though used in various provisions of the Code, including Section 439, has not been defined in the Code. It has to be understood in setting in which it is used and the provisions contained in Section 437 which relates to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterized as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expresion referring to the events on the happening of which Magistrate can entertain bail petition of an accused."
23. Again, it has been observd that "the fundamental requirement is that the accused should be in custody." The provisions of sec. 167(2) which in turn provide that the person has to be in custody and therefore such provision will not be attracted in the facts of the case.
24. In the facts of the present case, it cannot be said that merely because the bail is granted in connection with one FIR, the applicant should be deemed to have been in custody in connection with another FIR particularly when anticipatory bail has been withdrawn. Therefore, in connection with the second FIR being C.R. No. I-3/2010 registered with CID Crime, Rajkot Zone, the provisions of sec. 167(2) for default bail would not be attracted. It is not even the case of the applicant that the separate FIR being C.R. No. I-3/2010 is not maintainable or that second FIR could not be filed. Even if it is so, the remedy lies elsewhere for appropriate steps as may be advised, but sec. 167(2) will not be attracted.
25. It is well accepted by judicial pronouncements that there could be separate FIRs for separate offences. A useful reference can be made to the observations made by the Hon'ble Apex Court in the judgment in the case of Nirmal Singh Kahlon v. State of Punjab & ors. reported in(2009) 1 SCC 441 where the Hon'ble Apex court has quoted earlier judgment of 3-Judge Bench of the Apex Court in the case of Upkar Singh v. Ved Prakash, reported in (2004) 1 SCC 292.
26. Therefore, in view of the aforesaid discussion with regard to the rival submissions and the provisions of sec. 167(2) of CrPC it will not have any application as the applicant cannot be said to be in custody as sought to be canvassed on the basis of the deemed custody and in fact he is granted regular bail as discussed hereinabove. Therefore, when he is not at all in the custody, the provisions of sec. 167(2) of CrPC would not be attracted and the present application deserves to be rejected and accordingly stands rejected. Rule is discharged."
Thus, even on perusal of the said decision, it is crystal clear that the petitioner was not rearrested for the very offence. Hence, the contention of the petitioner that he was rearrested is devoid of any substance and merit.
7.2 So far as the contention of the petitioner that the so-called summons affixed on the house of the petitioner is undated and not even addressed to the petitioner, which is not in consonance with the provision of Section 160 of the CrPC is concerned, it is required to be noted that the copy of the summons which has been placed on record and which the petitioner has at present is an "Office Copy", which does not bear the date and name of the petitioner. In this respect, Mr.Jani has submitted that the original summons does bear the name of the petitioner as well as the specific date. Mr.Saiyed is not in a position to discard the said contention raised by the learned Public Prosecutor. In fact and in reality, the trial Court had perused the copy of the original summons and passed the order. Thus, it transpires that the original summons was bearing date as well as the name of the petitioner. Hence, this contention of the petitioner also does not merit acceptance.
7.3 Further, it is required to be noted that it is not the Investigating Officer but the petitioner who has suppressed material facts from the knowledge of the trial Court. The petitioner had shown his addresses to be of Ahmedabad as well as Gandhinagar in all his applications before different Courts of law and when the summons were issued at the address of Ahmedabad as mentioned in one of the applications of the petitioner, the mother of the petitioner has communicated that the petitioner is not residing at the said address of Ahmedabad. Thus, the conduct of the petitioner is manifest. Thus, either the petitioner or his mother is making a false statement and they are trying to play legal jugglery only with a view to avoid consequences of the summons. It is required to be noted that mere allegation of mala fide will not vitiate the action on the part of the Investigating Agency. The petitioner has been facing charge of serious offences against him. As per the case of the prosecution, the petitioner was using two unofficial 'SIM' cards for which the payment was made by a private company, which is not a minor offence.
7.4 It is pertinent to note that even this Court while dealing with Criminal Miscellaneous Application No.895 of 2010 filed by the petitioner under Section 482 of the CrPC for quashing of the very FIR i.e. I-C.R. No.3 of 2010, on 10th January 2011 , has observed as under :
"1.
Petitioner is original accused. He seeks quashing of complaint bearing I-C.R. No.3 of 2010 filed before C.I.D. Crime, Rajkot Zone Police Station on 31.3.2010.
2. Brief facts are as follows:
2.1 Petitioner is an IAS Officer of Gujarat cadre. A complaint bearing M.Case No.1 of 2008 was filed before Rajkot Zone CID Crime, Rajkot alleging offences punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 475, 484 and 120-B of Indian Penal Code. In connection with the said M.Case No.1 of 2008, FIR 1 of 2008 was registered before the Bhuj Police Station. Primarily allegations contained in the said complaint pertained to land alloted by the petitioner after the earthquake of January, 2001 when the petitioner was posted as Collector of Kachchh district. The complaint alleges several irregularities in allotment of such lands in favour of public trusts and other persons and entities.
2.2 While the investigation into the said complaint bearing M.Case No.1 of 2008 was going on, an application came to be filed before the concerned Magistrate by the Investigating Officer on 19.2.2010 stating that while investigation into the said complaint, the Investigating Officer had collected call details of two mobile numbers 98240 01729 and 99251 99749. It was revealed that the sim cards of the said numbers were in the name of the company called Ratan Enterprise Ltd.
and Wellspan respectively. It was further revealed that the telephone bills of Rs.46,554/- and Rs.2,26,036/- were borne by such companies though telephone was used by the petitioner. It was thus alleged that petitioner procured such mobile sim cards from the companies and used them for 5 years and bills were paid by the companies. The Investigating Officer, therefore, requested that the offence under Sections 7,11 and 13 of Prevention of Corruption Act also be added to the FIR being investigated into.
2.3 It is the case of the petitioner that pursuant to the said report filed by the Investigating Officer, the investigation was carried out against the petitioner not only with respect to offences as previously disclosed but also with respect to the offences punishable under Prevention of Corruption Act added subsequently. In-fact case was on account of addition of provisions of Prevention of Corruption Act transferred to Judge, Special Court, Bhuj. Petitioner has produced communication dated 11.3.2010 from the Investigating Agency to the Special Court seeking permission to record further statement of the witnesses in connection with Mobile Telephone numbers. It is the case of the petitioner that such interrogation was permitted and carried out and statements of the petitioner and other co-accused were recorded.
2.4 At that stage, application came to be filed before the Special Court on 1.4.2008 by the Investigating Agency contending inter-alia that the offence punishable under Sections 7,11 and 13 of the Prevention of Corruption Act are relatable only to the present petitioner whereas in the M.Case No.1 of 2008 there are offences punishable under IPC involving other accused as well. It was, therefore, pointed out that against the present petitioner separate complaint bearing I-C.R.No.3 of 2010 has already been lodged after necessary permission from the Additional Director General of Police. Sections 7, 11 and 13 of the Prevention of Corruption Act which have been added in M.Case No.1 of 2008 be permitted to be deleted.
2.5 On such application, learned Special Judge passed an order on 1.4.2010 ordering the application to be kept with original FIR and report to the effect that Prevention of Corruption Act was added erroneously.
3. It is the case of the petitioner that subsequent FIR bearing I-C.R.No.3 of 2010 was wholly impermissible. Petitioner has, therefore, questioned legality thereof primarily on two grounds.
(I) Contention of the petitioner is that for the same set of events two FIRs cannot be registered. Counsel for the petitioner submitted that previously M.Case No.1 of 2008 was initiated in which later on provisions under Prevention of Corruption Act were added. Subsequently, however, separate FIR bearing I-C.R.No.3 of 2010 was filed simultaneously requesting the Special Court to delete the provisions of Prevention of Corruption Act case arising out of M.Case No.1 of 2008.
(II) Second contention of the counsel for the petitioner was that entire investigation was carried out in the case arising out of M.Case No.1 of 2008 including for the offence punishable under the Prevention of Corruption Act. Further or fresh investigation would amount to abuse of process of Court. Heavy reliance was placed in the case of T.T.Antony v/s. State of Kerala and Ors. reported in (2001) 6 SCC 181; wherein, the Apex Court made following observations.
"19.
The scheme of the Cr.P.C. is that an officer-in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Sections 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 Cr.P.C.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154 Cr.P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C.
21 to 26 xxxx---xxxx
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the seeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr. P. C. it would clearly be beyond the purview of Sections 154 and 156 Cr. P. C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of a fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr. P. C. or under Article 226/227 of the Constitution".
4. On the other hand, learned Public Prosecutor appearing on advance copy opposed the petition contending that both the incidents namely first involved in M.Case No.1 of 2008 and the other referred to in I-C.R.No.3 of 2010 are entirely different and distinct. He submitted that investigation is still going on. The petitioner is yet to be interrogated. He further pointed out that M.Case No.1 of 2008 has culminated into filing of the charge-sheet and penal provisions included are only those punishable under IPC. Powers of quashing, therefore, be not exercised.
5. Having heard the learned advocates for the parties and having perused the documents on record, it clearly emerges that M.Case No.1 of 2008 refers to alleged irregularities in land deal and the illegality committed in allotment of government land in and around Bhuj town after the earthquake of January, 2001, when the petitioner was posted there as Collector of the district. Complaint filed before learned CJM, Bhuj who ordered investigation and accordingly M.Case No.1 of 2008 was registered. In the said complaint, there is no reference or even connection to any alleged use of Mobile phones by the petitioner for which the bills were allegedly paid by the private companies.
6. On the other hand, the complaint bearing I-C.R.No.3 of 2010 is confined only to allegations that petitioner while discharging his duties as Collector, Kachchh had procured two mobile sim cards from private companies and for which for nearly 5 years the telephone bills were paid by the said companies.
7. In nutshell, the allegations contained in both the complaints are totally different and distinct. Both the complaints relate to different allegations and different alleged irregularities and illegalities. It cannot be stated that I-C.R.No.3 of 2010 pertains to or arise out of same set of allegations contained in M.Case No.1 of 2008. The first contention of the petitioner that for the same event two separate FIRs are registered, must be rejected. With respect to second contention that the investigation is completed in the M.Case No.1 of 2008 with respect to all allegations, it may be recorded that the report dated 1.4.2010 on the basis of which the provision of Prevention of Corruption Act were dropped / deleted from M.Case No.1 of 2008 itself suggests that the investigation was not fully completed. It may be noted that the petitioner with the permission of the Court was interrogated by the Investigating Officer, however, that itself would not indicate that the entire investigation is carried out and completed.
8. If at all, I am of the opinion that initial step of the State to add the provisions of Prevention of Corruption Act in existing complaint bearing M.Case No.1 of 2008 was wholly erroneous. Ex-facie there is no direct link between the two set of allegations. As already noted, M.Case No.1 of 2008 pertains to alleged involvement of the petitioner in irregularities of allotment of Government land as a Collector. I-C.R.No.3 of 2010 pertains to alleged use of mobile phones by the petitioner at the cost of the private companies. In report dated 1.4.2010 filed by Investigating Agency before the Special Court also it has been stated that as there is no revelation that the allegation of misuse of mobile phones had any link with allotment of land, which is subject matter of M.Case No.1 of 2008.
9. In the case of T.T.Antony (supra), the Apex court came to the conclusion that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the cognizable offences. In the present case, facts are vitally different.
10. I am, therefore, of the opinion that the investigation in I-C.R.No.3 of 2010 cannot be scuttled. Quashing petition is therefore dismissed."
(Emphasis Supplied) Even on perusal of the aforesaid decision of this Court in respect of the very offence i.e. I-C.R. No.3 of 2010, it transpires that this Court in the aforesaid decision has also prima facie accepted the case of the prosecution.
So far as the decision of the Apex Court relied upon by the learned advocate for the petitioner in the case of Inder Mohan Goswami (supra), especially paragraphs 54, 55 and 56, wherein it is held that the Court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. The learned advocate for the petitioner is not able to point out any thing from the record as regards mala fide as alleged. Here in the present case, the trial Court after ascertaining all the facts and circumstances of the case as well as evidence on record had issued the summons and thereafter, non-bailable warrant. Thus, the facts of the present case are materially different.
8.1 The learned advocate for the petitioner has relied upon the decision of the Apex Court in the case of T.T.Antony (supra), to the extent that the Apex court came to the conclusion that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the cognizable offences. In the present case, facts are vitally different.
8.2 In the case of State of Haryana (supra), the Apex Court has held that the expression 'arrest' has neither been defined in CrPC nor in Indian Penal Code or any other enactment dealing with criminal offences. However, from Sections 46(1) and (2) of the CrPC, this much is clear that in order to make an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action. The said decision would not be of any help to the petitioner since the facts of the present case are materially different.
8.3 In the case of Kunhayammed (supra), the Apex Court has held that the dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that by necessary implication the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court and that such dismissal of the Special Leave Petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution of India. Here it is pertinent to note that the petition before the Supreme Court was withdrawn by the petitioner. Thus, the decision rendered by the High Court on 28th October 2010 is binding to the parties.
Mr.P.K. Jani, learned Public Prosecutor, has also relied upon a decision in the case of T.T. Antony (supra). Here it would be beneficial to reproduce the relevant paragraph of the said decision as under :
"20.
... ... ... On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC."
(Emphasis Supplied) It is required to be noted that the trial Court while dealing with the said applications at Marks-5 and 10, has relied upon a decision of this Court in the case of Ajendraprasad Narendraprasad Pandey v. State of Gujarat, reported in 2006(2) GLH 412, and passed the order dated 23rd November 2010.
In view of aforesaid and in light of the above cited decision of the Apex Court relied upon by the learned Public Prosecutor, I am of the opinion that the view taken by the trial Court is just and proper. The trial Court has assigned cogent and convincing reasons for arriving at the conclusion. Over and above the reasons assigned hereinabove, I adopt the reasons assigned by the trial Court and do not find any illegality much less any perversity in the findings recorded by the trial Court. No case is made out to interfere with the findings recorded by the trial Court. It is required to be noted that the trial Court has after hearing the parties and assigning cogent and convincing reasons rejected the applications of the petitioner at Marks 5 and 10. Hence, present petition deserves to be dismissed.
For the foregoing reasons, present petition fails and is, accordingly, dismissed. Rule is discharged. Interim relief stands vacated.
However, with a view to ascertain the bona fides of the petitioner and to put the State machinery in a right direction in criminal proceedings, in the interest of justice, the order dated 23rd November 2010, which was stayed by this Court till date, is kept in abeyance upto 17th February 2011, on condition that the petitioner will appear before the concerned trial Court on that day. It is clarified that no extension will be granted, if the petitioner does not comply with the aforesaid order.
(K.S. Jhaveri, J) Aakar Top