Gujarat High Court
Central vs Amit on 6 August, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCR.A/1497/2010 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1497 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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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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CENTRAL
BUREAU OF INVESTIGATION - Applicant(s)
Versus
AMIT
SHAH & 1 - Respondent(s)
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Appearance
:
MR
K.T.S. TULSI, SR COUNSEL WITH MR YN RAVANI WITH MR EZAZKHAN PATHAN
WITH MR MAHEEM PRATHAN for Applicant(s) : 1,
MR RAM JETHMALANI, SR
COUNSEL, MR MAHESH JETHMALANI, SR COUNSEL WITH MR ND NANAVATI, SR
COUNSEL, WITH MR MITESH AMIN WITH MR BRIJESH UMBACHIA WITH MR PRANAV
for Respondent(s) : 1,
MR PK JANI, PP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 06/08/2010
ORAL
JUDGMENT
This petition under Section 482 of the Code of Criminal Procedure has been filed by Central Bureau of Investigation (here-in-after referred to as CBI ) challenging order dated 4.8.2010 passed by learned Additional Chief Judicial Magistrate, Special CBI Court No.2, Ahmedabad(Rural) Mirzapur, below application exh.31, filed in Special Case No. 5/2010.
Brief facts leading to this petition are as follows :
2.1 Respondent No.1 is the original accused no.16 in Special Case No. 5/2010 pending before the learned Judge of the Special CBI Court No.2. In the said case, CBI filed application under exh.31 and prayed for custody of respondent no.1 for a period of 10 days for interrogation. In the said application, in support of the said prayer following averments have been made :
3.
That for the purpose of detailed investigation, examination of this accused in Judicial Custody was necessary and therefore, application was filed before this Hon'ble Court seeking orders to direct the Jail authorities to make such arrangements to enable the investigating authorities to examine the accused in the Jail premises.
6. That in pursuance of the above-order the investigating officer examined accused No.16 Shri Amitbhai Anilchandra Shah in judicial custody in jail premises. However, the accused no.16 Amitbhai Anilchandra Shah did not cooperate with the investigation and gave evasive answers and did not reveal the facts which are to his knowledge and chose to evade answers. Thereby did not cooperate in the investigation of this extremely serious case of murder, conspiracy and extortion.
7. That as the accused is not cooperating and giving evasive answers with regard to the commission of crime, it is necessary to examine him in Police Custody as per the provisions of law.
8. That it is also important to mention here that the new developments which took place after his detention in Judicial Custody i.e. Shri Rajendra Kumar Jirawala was arrested by the CBI and also that accused Shri Narendra Kumar Amin has moved an application for grant of pardon and to turn as an approver.
9. That it is important to mention here that in further investigation crucial witnesses were examined and investigation relating to the above crime is in progress and therefore, custodial interrogation of the accused at this stage is very vital and necessary for unearthing larger conspiracy and to collect further evidence and material related to the crime.
10. That Non Bailable Warrant was issued against Shri Ajay Patel (A-17) and Yashpal Chudasama(A-18) and both are untraceable till date.
11. That it is important to mention here that the nature and seriousness of the crime is such that for the purpose of investigation and in the interest of justice interrogation of accused in Police custody is necessary in order to unearth the whole case and involvement of other accused.
2.2 Said application exh.31 came to be contested by respondent no.1. After detailed arguments, learned Judge of CBI Court pronounced his reserved order on 4.8.2010. Application of CBI came to be dismissed. Application was turned down primarily on the following three grounds :
a) That respondent no.1 herein was arrested on 25.7.2010. Even before that charge-sheet was already filed on 23.7.2010. Court had already taken cognizance and that therefore, further remand can only be in judicial custody in terms of Section 309 of the Code of Criminal Procedure.
b) That previously when the accused was presented before the Court, CBI did not ask for remand. CBI was permitted to interrogate the accused in detail for three full days. Video recording was permitted. Learned Judge was of the opinion that during the said period no extensive interrogation was carried out. Total of three hours of questioning took place during the entire period. He was produced before the Court immediately upon his surrendering before the CBI and CBI did not exercise its right to detain him in custody for 24 hours.
c) That even otherwise it is not necessary to grant police remand. If there are other accused involved, same cannot be a ground for granting remand. Learned Judge therefore, concluded that on facts also application deserves to be dismissed.
2.3 It is this order which has been challenged by the CBI in the present petition.
In response to the rule issued on 5.8.2010, learned counsel have appeared on behalf of respondent no.1.
I have heard at length counsel for CBI as well as for respondent no.1.
On behalf of CBI it was contended that learned Judge committed a grave error in holding that in present case remand can be only under Section 309 of the Code of Criminal Procedure and not under Section 167 thereof.
5.1 It was contended that after filing of the charge-sheet against respondent no.1 further investigation was continued which is still incomplete. If in connection with such investigation there is need of custodial interrogation of the accused, nothing contained in Section 309 of the Code of Criminal Procedure prohibits granting of such custody under Section 167 of the Code of Criminal Procedure. In support of said contention, reliance was placed on the decision of Apex Court in case of State through CBI v. Dawood Ibrahim Kaskar & ors. reported in 2000(10) Supreme Court Cases 438.
5.2 Counsel also referred to decisions in case of Dinesh Dalmia v. CBI reported in 2007(8) Supreme Court Cases 770 and in case of Mithabhai Pashabhai Patel & Ors. v. State of Gujarat reported in 2009(6) Supreme Court Cases 332 to contend that the ratio laid down by the Apex Court in case of Dawood Ibrahim Kaskar & ors(supra) has in no way been diluted and both the cases are decided on facts which are vitally different from the present case.
5.3 Counsel also relied on the decision of the Apex Court in case of CBI v. Anupam J. Kulkarni reported in 1992 Cri. L.J. 2768 to contend that for first 15 days of arrest, it is open for the investigating agency to seek custody of the accused for interrogation.
5.4 Counsel further submitted that when accused presented himself before CBI on 25.7.2010, he had first addressed the press conference and there were large number of supporters present. CBI therefore, did not find it appropriate to seek remand at that very moment under such atmosphere. In any case, by making such an application after few days, CBI had not abdicate its right to seek remand of the accused. Learned Judge therefore, committed grave error in turning down the application on this ground.
5.5 It was contended that after arrest of the accused and before filing of the application for remand, further investigation was carried out by the investigating agency which also necessitated praying for remand.
5.6 Counsel for CBI also contended that respondent no.1 is an influential person, active in political life. Till recently he was minister for State for Home and Law and Justice in the State Government. While under interrogation he did not cooperate with the investigation. Important material is yet to be collected such as mobile phone records, personal computer and other details which could unearth a larger conspiracy. He therefore, vehemently contended that custodial interrogation is necessary. Learned Judge of CBI ought to have granted the same.
Learned Senior Counsel Shri Ram Jethmalani appeared for respondent no.1 and opposed the petition. At the outset he conceded that in view of judicial pronouncements, order for grant or refusal of remand being one of interlocutory nature, Criminal Revision Application therefore, would not be maintainable. Any objection if raised previously was therefore, not pressed.
6.1 It was vehemently contended that the accused was arrested after charge-sheet was filed by the CBI. There is nothing on record to suggest that he was absconding. The Court took cognizance of the case on 25.7.2010 when accused was presented in the Special CBI Court. Thereafter procedure under Section 167 of the Code of Criminal Procedure granting police remand would not be available. Reference was made to the decision of Apex Court in case of Dawood Ibrahim Kaskar & ors(supra) to contend that in the said case, accused was absconding when the charge-sheet was filed. Only in such an exceptional case, Apex Court has provided that after arrest, for further investigation, police remand can be resorted to.
6.2 It was contended that present petition filed under Section 482 of the Code of Criminal Procedure was not maintainable since powers vested with the Court are to pass any order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
6.3 Counsel further contended that there are no grounds to permit remand. Material on record does not suggest that any remand is necessary. Learned Special Judge has given cogent reasons, referred to material on record and come to the conclusion that remand cannot be granted. This Court in exercise of extraordinary jurisdiction would not interfere with such findings. Counsel relied on decision of this Court in case of Jairajsinh Temubha Jadeja v. State of Gujarat reported in 2002(1) GLR 215.
Having thus heard learned advocates appearing for the parties, one issue can be summarily dealt with is with respect to maintainability of this petition. As already conceded Criminal Revision Application would not be maintainable. Question is whether under Section 482 of the Code of Criminal Procedure said petition could be entertained. Section 482 of the Code of Criminal Procedure reads as follows :
482.
Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
I am of the view that the said provision is wide enough to permit High Court to examine with whatever limited peer review it may have in its command whether order passed by the learned Special Court suffers from any material irregularity or suffers from any jurisdictional error. Section 482 of the Code gives power to the High Court to pass appropriate order to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Along with Article 226 and 227 of the Constitution, Section 482 of the Code of Criminal Procedure would give sufficient powers to High Court to entertain petition of this nature.
Coming to the question of legality of order itself, following three main questions arise :
1) Whether in facts of the case powers under Section 167 of the Code of Criminal Procedure were available with the learned Magistrate to remand the accused to police custody or whether only procedure left open was one laid down under Section 309 of the Code of Criminal Procedure and to remand the accused in judicial custody.
2) Whether by virtue of not asking for remand earlier, CBI was thereafter precluded from seeking custody of the accused.
3) On facts, whether any case for remand was made out and therefore, learned Judge committed error in not granting such police remand.
With respect to the first question of law, it can be seen that this issue has been dealt with elaborately by the Apex Court in case of Dawood Ibrahim Kaskar & ors.(supra). It was a case where in the concerned accused was absconding. Charge-sheet in his absence was therefore, filed by the investigating agency. Eventually when the accused Mansuri was arrested and produced before the Court question arose whether Court was competent to exercise discretion conferred under Section 167 of the Code of Criminal Procedure or such a discretion was completely absent as in case governed by Section 309 thereof. Bombay High Court held in favor of accused observing that :
"It would, therefore, follow that the warrants which were issued by the Designated Court for production of the petitioner could not have been in aid of investigation but could only have been by way of a process issued under Section 204 of the Code of Criminal Procedure. Issue of warrants after cognizance of an offence is taken would be a process contemplated under Section 204 (1)(b) of the Code, i. e. it would be a process to face trial. Indeed, we do not find any provision contained in the Code for issue of warrants of arrest and custody of accused for the purpose of, or in aid of investigation. The process contemplated is a process to face trial."
The Apex Court overruling the decision of Bombay High Court on this issue held as follows :
10.
In keeping with the provisions of Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance on an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows :
xxx xxx
11.
There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri, (1994 Cri LJ 1854)(supra) - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.
10.1 In case of Dinesh Dalmia(supra), brief facts were that the accused had after expiry of 60 days from the date of his arrest applied for statutory bail. During pendency of the bail application, CBI had further sought custody of the accused. It was in this background that the Apex Court observed that :
19.
Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor.
Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation. Whether an investigation in fact has remained pending and the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused would essentially be a question of fact. Such a question strictly does not arise in this case inasmuch as, according to the CBI, sufficient materials are already available for prosecution of the appellant. According to it, further investigation would be inter alia necessary on certain vital points including end use of the funds.
xxx xxx xxx
22. The power of a court to direct remand of an accused either in terms of Sub-section (2) of Section 167 of the Code or Sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas Sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, Sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken.
10.2 In case of Mithabhai Pashabhai Patel & Ors(supra), brief facts were that the accused was alleged to have committed serious offences punishable under the IPC for which FIR was lodged. The accused was arrested. Thereafter, charge-sheet was also filed. Cognizance of offence was taken by the Sessions Court. High Court released the accused on bail. Thereafter, Special Investigation Team constituted by the Supreme Court sought remand of the accused on the ground that new provisions were added. It was in this background that the Apex Court observed as follows :
17.
It is, however, beyond any cavil that `further investigation' and `re-investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction.
It was further observed that :
23.
Appellants had been granted bail. They are not in custody of the court. They could not be taken in custody ordinarily unless their bail was not cancelled. The High Court, in our opinion, was not correct in holding that as further investigation was required, sub-section (2) of Section 167 of the Code gives ample power for grant of police remand.
It was in this context, the Apex Court also observed as under
22.
The power of remand in terms of the aforementioned provision is to be exercised when investigation is not complete. Once charge-sheet is filed and cognizance of the offence is taken, the court cannot exercise its power under sub-section (2) of Section 167 of the Code. Its power of remand can then be exercised in terms of sub-section (2) of Section 309 which reads as under :-....
From the above discussion, it can be seen that question whether once an accused has been arrested, after cognizance taken by the Court, remand can be asked for under Section 167 of the Code of Criminal Procedure has been conclusively decided by the Apex Court in case of Dawood Ibrahim Kaskar & ors.(supra). Facts are substantially similar to the case on hand. Of-course, one point of distinction brought out by counsel for respondent no.1 is that in case on hand accused had not absconded whereas in case before the Apex Court, the concerned accused was absconding when charge-sheet was filed. However, in the said decision, there is nothing that I could notice which would materially change the ratio only on this factual difference. Facts of the present case to reiterate are that when charge-sheet was filed, accused was not arrested. He was arrested shortly thereafter. It is the case of CBI that the accused had made himself scarce at the time of filing the charge-sheet which aspect has been denied vehemently by respondent no.1. For my purpose this is not of any relevance. CBI contends that the accused had gone underground. Counsel for accused contended that he had applied for anticipatory bail and was exercising his legal options. It would therefore seem that he was not declared as absconder but was not immediately available for arrest when charge-sheet was being filed. Fact is that charge-sheet was filed in absence of accused. He was later on produced before the Magistrate. Shortly, thereafter, his remand was sought. In my opinion in view of decision of the Apex court in case of Dawood Ibrahim Kaskar & ors.(supra), it was well within the powers of learned Magistrate to exercise discretion conferred under Section 167 of the Code of Criminal Procedure. Case was not closed for consideration as would happen if it was governed by Section 309 of the Code of Criminal Procedure.
This brings me to factual aspects whether remand was necessary and whether same was refused erroneously. Since the issues no. 2 and 3 overlap, common discussion would be useful.
It may be noted that case on hand arises out of further investigation undertaken by the CBI under the directions of Apex Court. Previously charge-sheet was filed in the year 2007. Additional charge-sheet was filed on or around 23.7.2010 after further investigation was carried out by the CBI. I have perused with the assistance of the Counsel for both sides relevant portion of the charge-sheet in which CBI has attempted to link respondent no.1 with the alleged offences. I have also perused the Case Diary submitted for my exclusive perusal by the CBI with a special focus on what transpired after 25.7.2010 when accused was taken in custody and on 31.7.2010 when CBI filed application exh.31 before the CBI Court. Since investigation is still going on, it would not be proper on my part to make any elaborate disclosure of contents thereof or to make detailed observations so as not to prejudice the case of one side or other. Suffice it to state that it can be gathered from the Case Diary that investigation is still going on in earnest.
It is true that on 25.7.2010 when respondent no.1 made himself available before CBI, he was straightway produced before the concerned Court of the learned Additional Chief Judicial Magistrate. It is equally true that at that time, no application for police remand was made. That by itself in isolation in my opinion would not be sufficient to hold that subsequent application was not maintainable. If there was material on record suggesting that remand was necessary, learned Additional Chief Judicial Magistrate could not have and ought not to have refused the same on the ground that previously it was not sought for. It is the case of CBI that respondent no.1 did not cooperate with investigation. It is however, the case of respondent no.1 that three days of interrogation permitted to CBI was not utilized at all and total of three hours of interrogation were carried out. The defence of the CBI is that respondent no.1 asked for review and re-review of the footage of such interrogation recorded and in between also asked for stoppages. It is not possible for me to decide with degree of accuracy whether there was any hindrance from respondent no.1 in interrogation or not. However, I have perused the different statements collected by the CBI. I have also, as already noted, perused the Case Diary and in particular, reasons for which further remand is solicited which emerge from the brief notings tendered by CBI. Relevant portion of which reads as follows :
It is revealed during further investigation that Sh. Amit Shah(A-16) is in exclusive possession of certain facts which would if revealed in police custody enable investigative Agency to recover the following objects, u/s.27IEA. As this information is only known to him, his custodial interrogation followed by the recovery of these below mentioned material objects from various places known to him will yield facts helpful to Investigating Agency.
Personal Diary and laptop : Information has been received that the details of the extortion money which has been invested in various places in both movable and immovable property is stored here. There are certain other facts which pertain to details about murder and other aspects of the case, regarding Soharabuddin, Kauserbi and Tulsiran Prajapati, also stored here.
1) Call Detail Records of the accused D.G. Vanzara(A-1),R.K. Pandiyan(A-2) Abhay Chudasama(A-15), himself (A-16), among others for the period Nov.'05, Dec '05 which have been reportedly handed over by cellular phone operators have been kept concealed by this accused(A-16)
2) Letter written by Sh.V.L. Solanki :-The crucial documents, viz, the letter of Sh.V.L. Solanki addressed to Smt. Geetha Johri, IG, CID(Crime) seeking permission to interrogate Tulsiram Prajapati and Sylvester(member of Sohrabuddin gang) in Udaipur Central Jail was submitted by Sh. Solanki to Smit. Johri around 16/12/2006. However, the same is not available and it is suspected to be in custody of Sh. Amit Shah(A-16) I am conscious that law leans against custodial interrogation as also limited jurisdiction of this Court in considering the legality of the discretionary order passed by the learned Magistrate. In totality of the facts and circumstances of the case, however, I am of the opinion that limited remand would be justified and was called for. In my opinion learned Additional Chief Judicial Magistrate committed an error in turning down the said request. Observations made by the Apex Court in case of State Rep. by the CBI v. Anil Sharma reported in 1997(7) Supreme Court Cases 187 may be usefully referred to:
6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders.
Under the circumstances, by setting aside impugned order dated 4.8.2010 passed by learned Additional Chief Judicial Magistrate, Special CBI Court No.2, Ahmedabad(Rural) Mirzapur, below application exh.31, filed in Special Case No. 5/2010, it is directed that petitioner CBI shall have custody of respondent no.1 for a period of two days starting from 7.8.2010 for interrogation. Upon completion of the said period, he shall be reverted back to the judicial custody.
Learned counsel for respondent no.1 requested that counsel for respondent no.1 may be permitted to remain present within sight, but not hearing during interrogation by the CBI. Counsel for the CBI did not object to such a request. Such a formula shall be adopted.
Counsel for respondent no.1 further requested that videography of entire interrogation be recorded to which counsel for CBI had reservation. Since there is no provision pointed out which gives right to the accused to insist on same, I do not find it necessary to grant the request.
Writ of this order may be issued today.
Registry to communicate the same to jail authorities by fax.
Petition disposed of accordingly. Rule made absolute to the above extent.
Request for stay of this order is turned down.
(Akil Kureshi,J.) (raghu) Top