Madhya Pradesh High Court
Rajendra Kori vs The State Of Madhya Pradesh on 20 October, 2016
MCRC-17501-2016
(RAJENDRA KORI Vs THE STATE OF MADHYA PRADESH)
20-10-2016
Mr.Som Prakash Mishra, learned counsel for the applicant.
Mr.J.K.Jain, Assistant Solicitor General for the
respondent/CBI.
1. This is an application under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail on behalf of applicants Rajendra Kori and Vivek Nema who are apprehending their arrest for offences under sections 120-B,420 of the Indian Penal Code and sections 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, registered at Police Station C.B.I. A.C.B. Jabalpur, District Jabalpur, vide Crime No. RC0092016A0006
2. The present case arises from the above said crime number in which the applicants herein, who are private parties are stated to have entered into a conspiracy with the Branch Manager of SME Branch of the Canara Bank at Jabalpur and fraudulently got transferred into the account of the Digamber Jain Mandir Trust, an amount of Rs.4,80,00,000/- by way of RTGS.
3. The Ld. Assistant Solicitor General has argued that the applicants herein had connived with the Branch Manager and had got three demand drafts issued in their favour without there being a requisite balance in their account due to which the said demand drafts were dishonoured. However, upon being coaxed by the applicants herein, the Branch Manager of the Canara Bank, SME Branch, Jabalpur, who is also a co-accused, is alleged to have transferred the above said amount into the account of the Digamber Jain Mandir Trust.
4. The learned Assistant Solicitor General has further argued that the transfer of the said amount into the account of the trust was subsequent to the dishonour of the said demand drafts which was issued in favour of the applicants herein. By this, the learned Assistant Solicitor General has sought to establish prima facie, that an unlawful loss of public money and a concomitant unlawful gain to themselves was caused by the applicants herein along with the Branch Manager, allegedly for purchase of land for the above said trust.
5. Learned counsel for the applicants on the other hand has submitted that as and when required by the CBI, the applicants presented themselves before the investigating agency and joined investigation. At no point of time during the course of investigation did the investigating agency ever exercise their powers of arrest and custodial interrogation. Thereafter, the investigation was completed and the charge sheet was to be filed on 23.9.2016 and the investigating agency, in the usual course, issued notice to the applicants herein to present themselves before the learned Trial Court for the formalities relating to bail. The applicants moved an application for anticipatory bail before the Special Judge (CBI), Jabalpur on 23.9.2016, which was dismissed on the same day, against which they have come before this Court for bail under section 438 of the Cr.P.C. The applicants have stated that their apprehension of an arrest by the Trial Court is real as a co-accused had moved an application for regular bail before the Trial Court and instead was sent to judicial custody by the Trial Court after dismissing his bail application.
6. There is no provision in the Code of Criminal Procedure for the issuance of a notice by the investigating agency requiring the prospective accused person to appear before the Trial Court on the date on which the charge sheet is filed. The Investigating Agency in the course of investigation has the authority under section 160 Cr.P.C to issue notice to such persons who have knowledge about the commission of the offence to appear before the police and join investigation. Under the said provision, a notice can also be issued to an accused person to appear before the investigating agency as the said section does not proscribe the issuance of such a notice to a person accused of an offence. However, once the investigation is complete and the charge sheet is to be filed under section 173(2) Cr.P.C, there vests no further right or authority with the investigating agency to summon the accused persons, save as is provided under section 173(8), to carry out further investigation. The Trial Court also cannot and must not expect the accused persons who are named in the charge sheet to be present before it on the date on which the charge sheet is filed by the investigating agency, as there is no presumption that the trial court will take cognizance of the offences against the prospective accused person(s) named in the charge sheet, by exercising jurisdiction under section 190 (1) (b) Cr.P.C.
7. As settled by the Supreme Court in Abhinandan Jha Vs. Dinesh Mishra â AIR 1968 SC 117, when a charge sheet is filed by the Police, the Magistrate has three options. (1) He may accept the charge sheet and proceed with the case by issuing process to the accused persons or (2) he could reject the charge sheet and direct the Police to carry out further investigation under section 156(3) of the Cr.P.C or (3) simply reject the charge sheet altogether after hearing the de facto complainant and close the case.
8. The Trial Court is not the Handmaiden or a Lady-in-Waiting of the investigating agency that it shall do the bidding of the prosecution. The act of the police/investigating agency of issuing notice to the prospective accused, directing itself to be present in Court on the day the police files the charge sheet is presumptuous to say the least, bordering on contumacious conduct. Only the Trial Court can decide whether or not it requires the attendance of the accused and none other. When the police issues such a notice to the prospective accused, what it is necessarily stating is that the Trial Court will take cognizance of the offences against the prospective accused upon the filing of the charge sheet and proceed against it. The very thought that the Trial Court will mechanically take cognizance of the offences mentioned in the charge sheet and proceed against the accused is abominable and would result in a trust deficit in the criminal justice administration by projecting a view that the Trial Court would do as desired by the prosecution.
9. Taking cognizance of an offence and securing the presence of a person to stand trial as accused is a solemn judicial function which the Trial Court discharges and the same cannot be done in a cavalier manner at the mere asking of the investigating agency only because they have investigated the case and filed a charge sheet. In this regard, it will do well to reiterate the observations of the Supreme Court in Pepsi Foods Ltd., Vs. Special Judicial Magistrate â (1998) 5 SCC 749, wherein at paragraph 28, the Supreme Court observed that âThe order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable theretoâ. Though the said observations were made in a matter arising from a complaint case, the principle stated therein is equally applicable in cases where a person is sought to be summoned to stand trial in a case based upon a police report U/s. 173(2) Cr.P.C. The requirement of presence of an accused before the Trial Court for the first time, is a power to be exercised exclusively by the Trial Court and the same cannot be usurped by the police/investigating agency. The taking of cognizance will normally be followed by the issuance of process to the accused U/s. 204 Cr.P.C and it is only on the receipt of the summons u/s. 204 Cr.P.C that an accused is bound to remain present before the Trial Court on the designated day. The Trial Court has sufficient powers under the code to secure the presence of the accused if it is of the opinion that the accused is deliberately trying to avoid the service of process. If the prospective accused appears in Court pursuant to the notice of the investigating agency and on that day, the Trial Court, after perusing the charge sheet arrives at the opinion that the same is deficient and does not disclose the commission of any offence to take cognizance of and remits the charge sheet to the police for further investigation u/s. 156(3) Cr.P.C, then in such a case, the prospective accused is put to unnecessary hardship resulting in the wastage of his time and resources involved in appearing before the Court for no reason whatsoever. This scenario is more pronounced where the prospective accused has to come from another state or any faraway place. Therefore, a person is only bound to appear before a Trial Court as an accused after the Trial Court takes cognizance of the offence(s) against such person(s) as stated in the charge sheet and issues process u/s. 204 Cr.P.C and never before that.
10. Thus, whenever a charge sheet is filed before a Trial Court, the investigating agency has no authority to issue a prior notice to a prospective accused person as no such authority is vested in them under the Code of Criminal Procedure. If such a notice is issued to an accused person and he does not appear before the Trial Court on the date when the charge sheet is filed, the Trial Court shall issue a non- bailable warrant for securing his presence until and unless it goes through the procedure of issuing process under section 204 Cr.P.C and in those exceptional circumstances/cases, in which it appears to the Trial Court that a person so required shall not respond to such summons, the Trial Court may also issue warrants bailable or non-bailable in addition to such summons under section 204 Cr.P.C after citing its reasons for the same.
11. Where the accused has not been arrested by the investigating agency during the course of investigation and has not been subjected to custodial interrogation, then the same is a case for grant of bail by the Trial Court when such an application is moved after the filing of the charge sheet. Denial of bail in such a case, without adequate cause and citing sufficient reasons for pretrial incarceration, would result in the infringement of the civil liberties of the accused along with his right under Article 21 of the Constitution of India as the said arrest would be absolutely without purpose.
12. Looking into the facts and circumstances of the case and the fact that the applicants herein were never arrested during the course of investigation, I see no reason why the Damocles sword of imminent arrest must be kept hanging over their heads only because the charge sheet has been filed. Under the circumstances, I am inclined to allow the instant application for grant of anticipatory bail. Accordingly, I direct that in the event of their arrest, they be released on bail forthwith upon their furnishing a personal bond in the sum of Rs.50,000/- each (Rupees Fifty Thousand only) with one solvent surety in the like amount each to the satisfaction of the Police Officer competent to arrest them, subject to the conditions enumerated in Section 438(2) of the Code of Criminal Procedure, 1973.
Certified copy as per rules.
(ATUL SREEDHARAN) JUDGE ss