Allahabad High Court
Vijay Kumar Mishra And Another vs Central Bureau Of Investigation, ... on 14 December, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 10 Case :- APPLICATION U/S 482 No. - 9343 of 2022 Applicant :- Vijay Kumar Mishra And Another Opposite Party :- Central Bureau Of Investigation, Ps-Cbi/Eo-I, New Delhi Counsel for Applicant :- Mohd. Khalid,Ishan Baghel Counsel for Opposite Party :- Anurag Kumar Singh Hon'ble Dinesh Kumar Singh,J.
1. Heard Sri Ishan Baghel, Advocate holding brief of Sri I.B. Singh, learned counsel for the petitioners and Shri Anurag Kumar Singh, learned counsel for the CBI, and perused the records.
2. This is 2nd petition under section 482 CrPC for the same relief, the first petition No. 3419 of 2021 having the following prayers :
"a) Quash the cognizance order dated 7.1.2020, summoning order 3.08.2021 passed by learned special judge CBI(west), Lucknow in CRI Case No. 994/2020, RC No. 219/214/E/0004/CBI/DLI/2298, u/s 120B, 420, 467, 468, 472 I.P.C. and 13 (2) r/w, 13 (1) D of Prevention of Corruption Act, 1988.
b) Summon the chargesheet and quash the chargesheet 22.09.2020 in CRL Case No. 994/2020, RC No. 219/214/E/0004/CBI/DLI/2208 u/s 120B,420,467,468,472 1.P.C. and 13 (2) r/w 13 (1) D of Prevention of corruption Act, 1988.
c) Direct the learned special judge CBI (west) to decide the bail application of the petitioner of the applicant with the expedition in light of the pronouncement of Hon'ble Supreme Court Amarpreet Singh Vs Cbi (Criminal appeal no. 929 of 2021), Data Ram Vs State Of U.P., (2018) 3 SCC 22 and Siddharth Vs State Of U.P. And Anr, 2021 SCC OnLine 615.
d) Issue any other order, Order or direction in the nature, which this Hon'ble court may deem fit and proper in the facts and circumstances of the case."
3. This petition was disposed of by this court vide order dated 24th September 2021. While arguing the said petition the petitioners did not press prayer Nos. A and B, however, liberty was sought to approach this court again at an appropriate stage. Considering the aforesaid submissions the said petition was disposed of with following observations:
"Heard Shri I.B.Singh, learned Senior Advocate, assisted by Shri Ishan Baghel learned counsel for the petitioners and Shri Anurag Kumar Singh learned counsel for the C.B.I. as well as perused the record.
Short submission of learned Senior Counsel, for the purpose of interim relief, is that the petitioners have fully cooperated with the C.B.I. during the course of investigation since 2017. The petitioners after receiving the summons have immediately appeared before the learned trial court through their counsel however, he has been deprived of his fundamental right of knowing the grounds for which they have been summoned.
He submits that procuring the papers of the investigation/charge-sheet is the fundamental right given to the accused and it is also a basic principle of natural justice to be adopted so that the accused may at least know as to what charges have been leveled against them for summoning in a case so as to put forward their defence.
He submits that the petitioners are ready to appear and cooperate with the trial proceedings to prove their innocence, however, petitioners want copy of the police report along with the documents so as to put forward his defence. The accused throughout the investigation has never been taken into the custody however, learned Special Judge has not permitted any of the accused persons or their counsel to inspect the court records and the documents filed by the Investigating Officer in the court.
In support of his contention he has placed reliance upon the judgment of Hon'ble Supreme Court in Dataram Singh vs. State of U.P. and another reported in (2018) 3 SCC 22; Aman Preet Singh vs. C.B.I. through Director passed in Criminal Appeal No.929 of 2021 dated 2.9.2021 and Siddharth vs. State of U.P. and another reported in 2021 SCC OnLine SC 615. Relevant paragraphs from the judgement of Aman Preet Singh (supra) are extracted below:-
"In our view, the purport of Section 170, Cr.P.C. should no more be in doubt in view of the recent judgment passed by us in Siddharth vs. State of Uttar Pradesh & Anr. (Criminal Appeal No. 838/2021),2021 SCC onLine SC 615). In fact we put to learned senior counsel whether he has come across any view taken by this Court qua the said provision. Learned counsel also refers to judgments of the High Court which we have referred to in that judgment while referring to some judicial pronouncements of this Court on the general principles of bail. The only additional submission made by learned counsel is that while the relevant paragraphs of the judgment of the Delhi High Court in Court on its own Motion vs. Central Bureau of Investigation (2004) 72 DRJ 629 have received the imprimatur of this Court, the extracted portions from the judgment of the Delhi High Court did not include para 26. The said paragraph deals with directions issued to the criminal Courts and we would like to extract the portion of the same as under:
?26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.
Directions for Criminal Courts :
(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.
(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to nonappearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.
(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.
(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.
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A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (iii) above by the High Court are in the nature of caution. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation.
In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this.
If we may say, the observation hereinabove would supplement our observations made in Siddharth vs. State of Uttar Pradesh & Anr.(supra) and must be read together with that judgment.
The given factual scenario completely fits the aforesaid as the appellant was never taken into custody during investigation. Suffice to say that it would be a fit case for the trial Court to grant bail to the appellant on the next date on terms and conditions to its satisfaction. As a measure of precaution, largely arising from the manner of submission of public prosecutor before the trial Court, it is made clear that the interim protection granted by this Court would continue till the appropriate order is passed by the trial Court."
Per contra, learned counsel appearing for the C.B.I. submits that he is not denying the fact that the petitioners-accused are entitled to the protection as well as benefit accruing to him on account of judgement in Aman Preet Singh (supra). He submits that the accused may appear before the trial court and seek bail and only then the documents can be provided to them. Process under Section 207 Cr.P.C. cannot be pre-poned or no exception can be made for the accused petitioners.
On due consideration to the arguments advanced by learned counsel for the parties; perusal of the judgement of Aman Preet Singh and Siddharth (supra) and after perusal of the record, it will be appropriate to direct the petitioners to appear before the trial court on the next date fixed in the trial and learned trial court shall consider the bail application of the petitioners, if moved, on the next date strictly in view of law laid down by Apex court in Aman Preet Singh (supra) and thereafter the petitioners shall be given the documents as desired by them under Section 207 Cr.P.C.
At this stage, learned counsel for the petitioner prays that he may be permitted to not press the petition to the extent it relates to prayer no. 'a' and 'b' with liberty to approach this court again at appropriate stage.
Accordingly, the petition to the extent it relates to Prayer no. 'a' and 'b' is dismissed as not pressed with liberty as prayed for.
So far as prayer no. 'c' is concerned, with the consent of parties' counsel the petition is disposed of. In the interest of justice, it is provided that till the next date fixed in the trial in which they may apply for regular bail and before the next date he shall not be arrested in purported compliance of the summons or warrants, if any issued by the trial court."
4. However the petitioners did not surrender, rather they moved to this court for anticipatory bail in Criminal Misc. Anticipatory Bail Application under section 438 CrPC No. 14681 of 2021.
5. This court vide order dated 28 November 2022, considering submissions of the learned counsel for the petitioners while rejecting the anticipatory bail application granted one week's time to surrender before the trial court and to apply for regular bail. The order dated 28 November 2022 reads as under:
"1. Heard learned counsel for the parties and gone through the record.
2. By way of this application under Section 438 CrPC, the accused-applicant seeks his bail in anticipation of his arrest pursuant to Criminal Case No.994 of 2020, arising out of RC No.219-2017 (E) 0007, under Sections 120-B, 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Police Station CBI/EO-1, New Delhi.
3. Learned counsel for the accused-applicant submits that he would not like to press this application and the accused-applicant may be granted sometime to surrender and apply for regular bail and the plea of regular bail of the accused-applicant should be considered in light of judgment rendered by the Supreme Court in the case of Aman Preet Singh Vs. C.B.I. Through Director.
4. Considering the aforesaid submission, this application is hereby rejected. However, the accused-applicant is granted one week's time from today to surrender before the trial Court and apply for regular bail and, if he does so, his application for regular bail should be considered in accordance with law, expeditiously."
6. Learned counsel for the petitioners has submitted that in pursuance to the liberty granted by this court vide order dated 24th September 2021 passed in the petition under Section 482 No. 3419 of 2021 the petitioners applied to surrender, but later on did not press it.
7. Despite the time granted for surrender and making an application for regular bail the petitioners did not surrender even on the second time and no application for regular bail was filed. They have filed the present petition again seeking similar plea, i.e., quashing of the chargesheet, summoning and cognizance order.
9. The petitioners were granted time twice to surrender before the trial court and apply for regular bail by this court. They have not complied with the order and have moved the second petition for similar reliefs, which were sought by them in earlier writ petition No. 3419 of 2021, which was disposed off vide order dated 24th September 2021.
10. Considering the allegations and investigation carried out by the Central Bureau of Investigation this court does not find any ground to interfere with the ongoing proceedings and, therefore, this petition has no merit and substance. The petition is hereby dismissed.
(Dinesh Kumar Singh, J.) Order Date :- 14.12.2022 A.Nigam